Rhoads v. Federal Deposit Insurance

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

LORI RHOADS, 
Plaintiff-Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION, in its capacity as
receiver for Standard Federal
Savings Bank and Standard Federal
 No. 98-2374
Savings Association,
Defendant-Appellee.
GEORGETOWN APPELLATE LITIGATION
CLINIC,
Amicus Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black Jr., Senior District Judge.
(CA-94-1548-B)

Argued: October 30, 2000

Decided: July 12, 2001

Before WILKINS and KING, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge King wrote the opinion, in which Judge Wilkins and
Senior Judge Magill joined.
2 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
COUNSEL

ARGUED: Adam Nathan Steinman, Supervising Attorney, Appellate
Litigation Program, GEORGETOWN UNIVERSITY LAW CEN-
TER, Washington, D.C., for Amicus Curiae. Robert Parker Fletcher,
NIXON PEABODY, L.L.P., Washington, D.C., for Appellee. ON
BRIEF: Lori Denise Rhoads, Appellant Pro Se. Leslie Paul Machado,
NIXON PEABODY, L.L.P., Washington, D.C.; Kathryn R. Norcross,
J. Scott Watson, FEDERAL DEPOSIT INSURANCE CORPORA-
TION, Washington, D.C., for Appellee. Steven H. Goldblatt, Direc-
tor, Richard D. Watkins, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
ington, D.C., for Amicus Curiae.

OPINION

KING, Circuit Judge:

Lori Denise Rhoads appeals from the judgment rendered against
her on her claims under the Family and Medical Leave Act, 29 U.S.C.
§§ 2601-2654 ("FMLA"); the employment provisions of the Ameri-
cans with Disabilities Act, 42 U.S.C. §§ 12101-12117, 12203
("ADA"); and Maryland state law. The district court granted summary
judgment to the Federal Deposit Insurance Corporation ("FDIC"), in
its capacity as representative of Rhoads’s former employers, on her
ADA claims — for failure to make reasonable accommodations, dis-
criminatory termination, and retaliation — as well as the state law
claims. See Rhoads v. FDIC, 956 F. Supp. 1239 (D. Md. 1997). A
jury subsequently found in the FDIC’s favor on the FMLA claim, see
Order of Judgment, No. B-94-1548 (D. Md. Mar. 4, 1998), and the
court denied Rhoads’s motion for judgment as a matter of law or,
alternatively, for a new trial, see Order, No. B-94-1548 (D. Md. Aug.
12, 1998). As explained below, we affirm the district court in every
respect except for its award of summary judgment on the ADA retali-
ation claim, which we vacate and remand for further proceedings.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 3
I.

A.

Rhoads was hired as a financial analyst in September 1987 by
Standard Federal Savings Bank ("SFSB"). When the bank failed in
October 1992, the Resolution Trust Corporation ("RTC")1 was
appointed as its receiver, and a new federal mutual savings associa-
tion, Standard Federal Savings Association ("SFSA"), was chartered
with the RTC as its conservator. Although Rhoads’s employment with
SFSB was terminated at its receivership, she was hired simulta-
neously for the same position with SFSA.

Rhoads suffers from asthma and related migraine headaches —
conditions exacerbated by exposure to cigarette smoke. After starting
work at SFSB, in the bank’s Gaithersburg, Maryland office, Rhoads
began feeling the negative effects from breathing co-workers’ second-
hand smoke. Due to SFSB’s inability to control smoking on the prem-
ises, even after the introduction of a countywide smoking ban in
1990, Rhoads periodically sought medical attention for recurring
bouts of bronchitis, pneumonia, severe lung infections, and cluster-
migraine syndrome. The amount of secondhand smoke in the offices
increased with the arrival of new RTC employees and managers when
the bank became SFSA. Internal memoranda documented the detri-
mental effects of this smoke on Rhoads’s health. See, e.g., April 27,
1993 Memorandum from Michael O’Hopp, III, J.A. 49 ("The smok-
ing is having a devastating health effect on one of my employees. . . .
Please stop smoking immediately. If not because it is illegal, then out
of professional courtesy and human kindness."). Because of her con-
dition, SFSA officials allowed Rhoads to take lengthy absences from
work. Eventually, in May 1993, O’Hopp, who was then Rhoads’s
supervisor, arranged for her to work at home to avoid exposure to sec-
ondhand smoke.
1
The RTC was a federal government instrumentality created by Con-
gress in 1989 to resolve the assets of failed savings and loan institutions.
The FDIC is the statutory successor to the RTC, following its sunset on
December 31, 1995. See 12 U.S.C. § 1441a(m).
4 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
During the time period that she worked at home, Rhoads’s depart-
ment was transferred to SFSA’s Frederick Operations Center in Fred-
erick, Maryland ("Frederick Center"). In June 1993, SFSA adopted a
smoke-free workplace rule, to take effect on September 1 of that year,
at which time smoking would be banned throughout the Frederick
Center. That July, RTC officials discovered that Rhoads was being
allowed to work at home and, subsequently, asked her to report to the
Frederick Center for work. During meetings there on August 12 and
18, and in telephone conversations and letters, bank officials and
Rhoads debated whether she would work at the Frederick Center,
continue to work at home, or submit the necessary medical certifica-
tion for disability leave. Ultimately, W. Marshall Jones, SFSA’s
Senior Vice President for Human Resources, informed Rhoads in an
August 25 letter that she should report to work at the Frederick Center
on September 1, to coincide with the date the building was to become
smoke-free. Jones also said the bank would provide an air purifier for
Rhoads’s office.

Rhoads maintains, however, that she suffered a significant relapse
of asthma and migraine headache symptoms because of her exposure
to cigarette smoke at the Frederick Center during the two August
meetings there. She saw four doctors during the period of August 12-
31 and sought treatment in a hospital emergency room on August 21.
Rhoads was given a variety of medications at varying dosages, and
the treatments for asthma apparently compounded her migraine head-
aches. According to Rhoads, on August 31, one of her physicians,
Alan S. Chanales, M.D., instructed her not to report to work the fol-
lowing day or for the rest of the week.

Thus, instead of reporting to the Frederick Center on September 1,
Rhoads called James Pavlonnis, her immediate supervisor at the time,
to relay her doctor’s advice and postpone her expected return to work
until the following week. On September 7, Rhoads informed Pavlon-
nis that she remained ill, her physician instructed her not to report to
work that week, and she was using sick leave. Pavlonnis, SFSA’s
Executive Vice President and Chief Financial Officer, telephoned
Rhoads on September 9 and insisted that she provide a doctor’s note
immediately. At Rhoads’s request, Dr. Chanales faxed Pavlonnis a
letter that same day. This note, dated September 2, had been com-
posed in response to SFSA’s earlier suggestion that Rhoads submit
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 5
medical documentation supporting a need for disability leave; without
mentioning Rhoads’s current condition, it indicated that she must
work in a smoke-free environment or be allowed such leave. Pavlon-
nis consequently called Rhoads on September 10 and asked her if she
was requesting disability leave. Rhoads — who had not seen Dr. Cha-
nales’s letter — replied that she did not know and did not feel that
she had to decide because she was using accrued sick leave.

That same day, in a letter from Jones, Rhoads was threatened with
disciplinary action if she did not report to work by September 13.2
When Rhoads did not do so, she received a "final warning" letter from
Jones, advising her that she had been placed on probation due to her
"refusal to report to work the past eight business days[,]" and that her
employment would be terminated if she failed to report on September
14. J.A. 269. The plan to terminate Rhoads under these circumstances
was approved by a committee of SFSA officials.

Following receipt of the September 13 letter, Rhoads informed
Jones by phone and by fax that she remained too ill to work and that
her doctor would be sending SFSA further documentation of her con-
dition within a few days. Indeed, on September 13, Dr. Chanales
composed a letter stating:

[Rhoads] continues to require treatment for her asthmatic
disease which has been exacerbated by exposure to smoke
on your premises. This treatment has been complicated by
the development of severe headaches as a side effect of
some of the medications that are being used to treat her
asthma. She still is not in good enough shape to return to
work, and I certainly continue to maintain that she should
not be allowed in your work place unless it is certifiably free
of cigarette smoke.

J.A. 273. Dr. Chanales did not, however, fax the letter to SFSA until
September 16 — one day after senior officials in the RTC’s Atlanta
office authorized Rhoads’s termination. A termination letter from
2
An attorney for Rhoads responded with a letter requesting that she be
granted disability leave. The letter also warned that SFSA might be vio-
lating the ADA, FMLA, and local laws. See infra Part IV.B.1.
6 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
Jones was hand-delivered to Rhoads during the evening of September
15, informing her that she had been fired for refusing to return to
work for ten consecutive days "[w]ithout supervisory approval and in
direct defiance of my repeated instructions." J.A. 349. The letter
explained:

In light of the accommodations we have made for any health
condition you may have, your continued refusal to report to
work cannot be tolerated.

Contrary to the assertions in your letter of September 13,
1993, the notes from your physicians do not state that you
are sick and cannot or should not be working. The notes
state unequivocally that you can work if provided a smoke-
free environment. As such, we have done everything your
physicians have requested and more. We allowed you to
work at home while smoking was still permitted at the Fred-
erick Operations Center. On September 1, 1993, however,
the Frederick Operations Center became a no-smoking
building. We even provided a further accommodation for
you beyond that your physicians requested, placing an air
purifier in your work area. Nevertheless, you have continued
to refuse to report to work.

Id. The FDIC, on the one hand, maintains that the termination was
justified by Rhoads’s excessive unexcused absenteeism. Rhoads, on
the other hand, contends that SFSA should have at least waited for Dr.
Chanales’s letter to arrive before making any decision to fire her.3
3
The evidence reflects, however, that even if SFSA had received Dr.
Chanales’s letter prior to terminating Rhoads, the bank would have taken
the same action, because Rhoads’s supervisors had reason to disbelieve
that she was sick. For example, during the time period culminating in
Rhoads’s termination — September 1-15, 1993 — she failed to answer
her home telephone several times when SFSA officials called her; she
did, however, return calls when paged on her beeper. Indeed, during the
period of August 14-27, when Rhoads insists she was ill due to cigarette
smoke exposure during the August 12 and 18 meetings at the Frederick
Center, she used two vacation days but otherwise recorded working 7.5
hours per day on her time sheets. Moreover, the evidence adduced at trial
showed that, during the weeks leading up to September 1, Rhoads moved
apartments, drove to and attended a half-day orientation session at the
University of Maryland in College Park, and signed up for full-time day
classes at the university, scheduled to begin September 7.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 7
B.

Upon issuance of a "Notice of Right to Sue" letter by the Equal
Employment Opportunity Commission, Rhoads filed this action in a
timely manner on June 7, 1994, in the District of Maryland. In her
amended complaint against RTC, as conservator for SFSA and
receiver for SFSB, Rhoads raised claims under the FMLA, ADA,
Montgomery County (Maryland) Human Rights Law, the Maryland
Wage and Collection Law, and Maryland state common law. RTC
was subsequently replaced as defendant by the FDIC. The district
court possessed jurisdiction over this action pursuant to 12 U.S.C.
§§ 1441a(l)(1) and 1819(b) (actions in which the FDIC and its pre-
decessor the RTC are parties); 29 U.S.C. § 2617(a) (claims under the
FMLA); 42 U.S.C. § 12117 (claims under the ADA); and 28 U.S.C.
§ 1367(a) (supplemental jurisdiction over state law claims).

The FDIC sought summary judgment on all of Rhoads’s claims,
and Rhoads filed a motion for summary judgment on her FMLA
claim and on an affirmative defense raised by the FDIC regarding
damages. On February 28, 1997, the district court granted summary
judgment for the FDIC on Rhoads’s ADA and state law claims, but
denied the FDIC’s motion for summary judgment on Rhoads’s FMLA
claim. The court also denied Rhoads’s motion for summary judgment
in its entirety. The jury trial on the FMLA claim was held from Febru-
ary 23 through March 4, 1998, at which time the jury returned a ver-
dict for the FDIC and the court entered final judgment. Rhoads
subsequently filed a motion for judgment as a matter of law, pursuant
to Rule 50(b) of the Federal Rules of Civil Procedure, or a new trial,
pursuant to Rule 59(a). The court denied the motion and soon after
granted leave to Rhoads’s attorney to withdraw from the case.

Rhoads filed a pro se notice of appeal on September 9, 1998. A
month later, she filed a motion for relief from judgment in the district
court, which the court stayed pending resolution of this appeal. On
February 16, 2000, after Rhoads and the FDIC had filed their appel-
late briefs, we assigned amicus curiae to brief and argue in support
of Rhoads’s positions. We possess jurisdiction over this appeal under
28 U.S.C. § 1291.
8 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
II.

We have carefully considered Rhoads’s contentions that she was
entitled to judgment as a matter of law, or at least a new trial, on her
claim under the FMLA, 29 U.S.C. §§ 2601-2654, and that the district
court erroneously granted summary judgment to the FDIC on her
three claims under the employment provisions of the ADA, 42 U.S.C.
§§ 12101-12117, 12203, for failure to make reasonable accommoda-
tions, discriminatory discharge, and retaliation. With regard to her
FMLA claim, the district court required Rhoads to prove to the jury
that she suffered from an FMLA-qualifying "serious health condi-
tion." See 29 U.S.C. § 2611(11). The court also refused to award
Rhoads judgment as a matter of law on this issue based on her asser-
tion that the FDIC waived the right to contest it because of SFSA’s
failure to pursue the FMLA’s "second opinion" procedures. See id.
§ 2613(c)-(d). Finding no error, we affirm the district court’s deci-
sions on these points. The FMLA claim is examined more thoroughly
in Part III.

As for the three ADA claims, the district court granted summary
judgment on each of them to the FDIC. The court determined that
Rhoads failed to adduce sufficient evidence to prove that she was
"disabled" within the meaning of the ADA and, thus, could not sup-
port her claims for failure to make a reasonable accommodation and
discriminatory discharge. See 42 U.S.C. § 12102(2). The court further
concluded, with regard to the accommodation claim, that the accom-
modation sought by Rhoads — the right to take sick leave whenever
her asthma and migraines prevented her from working — was "fa-
cially unreasonable." Rhoads, 956 F. Supp. at 1248. Moreover, with
regard to the discriminatory discharge claim, the court ruled that,
because of Rhoads’s excessive absenteeism, she had "not offered suf-
ficient evidence to establish she was meeting her [employer’s] legiti-
mate expectations." Id. at 1249. Because we agree that Rhoads failed
to make a sufficient showing of disability, we affirm the district
court’s award of summary judgment to the FDIC on the failure to
accommodate and discriminatory discharge claims, without unneces-
sarily reaching their other elements. These claims are discussed in
Part IV.A.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 9
The ADA retaliation claim, however, did not require proof of a dis-
ability. The district court granted summary judgment on this claim,
concluding that Rhoads failed to establish evidence to rebut the
FDIC’s legitimate, nondiscriminatory reason for her discharge —
excessive unexcused absenteeism — under a burden-shifting proof
scheme. We disagree with this determination and conclude that
Rhoads not only proffered enough evidence to survive summary judg-
ment under the burden-shifting scheme, but she also established suffi-
cient direct and indirect evidence of retaliation as an alternative
avenue of proof. Therefore, we reverse the award of summary judg-
ment to the FDIC on the ADA retaliation claim, and we remand it for
further proceedings. This claim is addressed in Part IV.B.4

III.

We first assess the district court’s denial of Rhoads’s motion for
judgment as a matter of law or, alternatively, for a new trial, on her
claim that SFSA unlawfully interfered with her exercise of FMLA
rights by firing her. See 29 U.S.C. § 2615(a)(1) (deeming it "unlawful
for any employer to interfere with, restrain, or deny the exercise of
or the attempt to exercise" an employee’s FMLA rights).5 The jury
concluded that she did not suffer from an FMLA-qualifying "serious
health condition." See id. § 2611(11). Rhoads contends, however, that
she should not have been required to prove that she was afflicted with
4
We have also reviewed the other contentions advanced by Rhoads on
appeal, including, inter alia, that the district court erroneously granted
summary judgment to the FDIC on her state law claims. Rhoads also
challenges the award of summary judgment to the FDIC on the issue of
back pay; the district court concluded that the FDIC’s back pay liability,
if any, was severed after February 1995, when SFSA was sold and
Rhoads’s job was accordingly eliminated. We find no merit in Rhoads’s
assertions of error on these various points and, thus, affirm the district
court’s determinations of them. See generally Rhoads, 956 F. Supp.
1239.
5
Rhoads also contends that the district court erred by denying her pre-
trial motion for summary judgment on this claim. However, "this Court
will not review, under any standard, the pretrial denial of a motion for
summary judgment after a full trial and final judgment on the merits."
Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g Corp., 51 F.3d
1229, 1237 (4th Cir. 1995).
10 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
such a condition and, regardless, the FDIC waived any right to contest
this issue because SFSA failed to follow the FMLA’s "second opin-
ion" procedures upon receipt of her physician’s certification of her
ailments. See id. § 2613(c)-(d).

Thus, Rhoads insists, she established as a matter of law that she
suffered from an FMLA-qualifying condition, and this issue was
improperly submitted to the jury. We review de novo the denial of
Rhoads’s request for judgment as a matter of law, see Deans v. CSX
Transp., Inc., 216 F.3d 398, 400 (4th Cir. 2000), and we review the
denial of her request for a new trial for abuse of discretion, see Free-
man v. Case Corp., 118 F.3d 1011, 1014 (4th Cir. 1997) (acknowl-
edging that "an error of law constitutes an abuse of discretion").

A.

The FMLA is intended "to balance the demands of the workplace
with the needs of employees to take leave for eligible medical condi-
tions and compelling family reasons." Hukill v. Auto Care, Inc., 192
F.3d 437, 441 (4th Cir. 1999) (citing 29 U.S.C. § 2601(b)). It entitles
eligible employees6 to take up to twelve weeks of unpaid leave in any
twelve-month period for qualifying medical or family reasons, see 29
U.S.C. § 2612(a)(1), and ensures that these employees will be
restored to their same or an equivalent position upon returning to
work, see id. § 2614(a)(1). A qualifying medical reason is defined as
6
An "eligible employee" is one "who has been employed for at least
12 months by the employer with respect to whom leave is requested . . .
for at least 1,250 hours of service with such employer during the previ-
ous 12-month period." 29 U.S.C. § 2611(2)(A). At the summary judg-
ment stage, the district court concluded that Rhoads had worked for
SFSA for the requisite amount of time, even though she had been
employed there for just under 12 months as of her termination. The court
so ruled because Rhoads’s combined length of service to SFSB and
SFSA exceeded 12 months, and because SFSA was a "successor in inter-
est" to SFSB. See id. § 2611(4)(A)(ii)(II) (defining an "employer" as
"any successor in interest of an employer"); 29 C.F.R. § 825.107 (1993)
(providing eight factors for evaluating whether an entity qualifies as a
successor in interest). The jury later found that Rhoads worked at least
1,250 hours during the relevant period. This issue, Rhoads’s status as an
eligible employee, is not raised on appeal.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 11
"a serious health condition that makes the employee unable to per-
form the functions of the position of such employee." Id.
§ 2612(a)(1)(D). A "serious health condition" is defined, in part, as an
illness or impairment that requires continuing treatment by a health
care provider, see id. § 2611(11)(B), and that also involves a "period
of incapacity requiring absence from work . . . of more than three cal-
endar days," 29 C.F.R. § 825.114(a)(2) (1993).7
7
The Secretary of Labor possesses authority to promulgate regulations
implementing the FMLA. See 29 U.S.C. § 2654. Interim regulations took
effect on August 5, 1993, while final regulations took effect on February
6, 1995. See Sims v. Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d
1253, 1257 n.2 (N.D. Cal. 1998). Because Rhoads’s termination and the
related events occurred in September 1993, the interim regulations apply
in this case. We defer to the Secretary’s interpretation of the FMLA, as
expressed in the interim regulations, pursuant to Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Mil-
ler v. AT&T Corp., ___ F.3d ___, Nos. 00-1277, 00-1928, 2001 WL
475934, at *8 (4th Cir. May 7, 2001). Further, we recognize that "the
expanded final regulations, to the extent they merely amplify the lan-
guage of the interim regulations, may provide valuable guidance to us as
we apply the law to the facts here." Thorson v. Gemini, Inc., 205 F.3d
370, 376 (8th Cir. 2000).
While the interim regulations neither expressly include or exclude
asthma and migraines as FMLA-qualifying conditions, the final regula-
tions identify these ailments as conditions that potentially qualify for
FMLA leave. See 29 C.F.R. § 825.114(a)(2)(iii)(C) (2000) ("A chronic
serious health condition is one which . . . [m]ay cause episodic rather
than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy,
etc.)."); id. § 825.114(c) (specifying "headaches other than migraine" in
a list of conditions that ordinarily would not merit FMLA leave (empha-
sis added)). Moreover, the final regulations provide:
Absences attributable to incapacity under paragraphs (a)(2)(ii) or
(iii) qualify for FMLA leave even though the employee . . . does
not receive treatment from a health care provider during the
absence . . . . For example, an employee with asthma may be
unable to report for work due to the onset of an asthma attack or
because the employee’s health care provider has advised the
employee to stay home when the pollen count exceeds a certain
level.
Id. § 825.114(e). We recognize that these final regulations would have
had no effect on this case, because the jury determined, without reaching
12 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
An employee is mandated to provide notice to her employer when
she requires FMLA leave. Where the need for leave is unforeseeable,
"an employee should give notice to the employer . . . as soon as prac-
ticable under the facts and circumstances of the particular case." Id.
§ 825.303(a). At bottom, "[a]n employee shall provide at least verbal
notice sufficient to make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of
the leave." Id. § 825.302(c). The employee, however, "need not
expressly assert rights under the FMLA or even mention the FMLA,
but may only state that leave is needed . . . ." Id. The employer should
inquire further to ascertain whether it is FMLA leave that is being
sought and to obtain further details of this leave. See id.

An employer has discretion to require that an employee’s leave
request "be supported by a certification issued by the health care pro-
vider of the . . . employee[.]" 29 U.S.C. § 2613(a). "An employer
must give written notice of a requirement for medical certification in
a particular case . . . ." 29 C.F.R. § 825.305(a) (1993) (internal cita-
tion omitted). This certification "shall be sufficient" if it articulates:
the date on which the serious health condition commenced; its proba-
ble duration; the "appropriate medical facts," within the health care
provider’s knowledge, regarding this condition; and a statement that
the employee is unable to perform the functions of her position. 29
U.S.C. § 2613(b)(1)-(3), (4)(B). The employer must inform the
employee of the consequences of failure to provide this certification,
see 29 C.F.R. § 825.305(c) (1993), and the employer must allow the
employee at least fifteen calendar days to submit it, see id.
§ 825.305(a). If the employer views the certification as incomplete,
the employer "shall advise" the employee of this belief and "provide
the employee a reasonable opportunity to cure any . . . deficiency."
Id. § 825.305(c).

the question of continuing treatment, that Rhoads simply did not experi-
ence a period of incapacity requiring absence from work for more than
three days. However, the fact that an employee suffers from the specific
conditions of asthma and migraines does not mean that she could never
qualify for FMLA leave.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 13
If, as in this case, the employer questions the soundness of the cer-
tification, the FMLA sets forth procedures for obtaining second, and
third, opinions. It provides that "the employer may require, at the
expense of the employer, that the eligible employee obtain the opin-
ion of a second health care provider" and, if the first and second judg-
ments differ, that "the employer may require, at the expense of the
employer, that the employee obtain the opinion of a third health care
provider[.]" 29 U.S.C. § 2613(c)(1), (d)(1) (emphasis added).8 The
8
The statute sets forth the following procedures for obtaining the sec-
ond and third opinions:
(c) Second opinion
(1) In general
In any case in which the employer has reason to doubt the valid-
ity of the certification provided . . . the employer may require,
at the expense of the employer, that the eligible employee obtain
the opinion of a second health care provider designated or
approved by the employer concerning any information certified
under subsection (b) of this section for such leave.
(2) Limitation
A health care provider designated or approved under paragraph
(1) shall not be employed on a regular basis by the employer.
(d) Resolution of conflicting opinions
(1) In general
In any case in which the second opinion described in subsection
(C) of this section differs from the opinion in the original certifi-
cation provided under subsection (a) of this section, the
employer may require, at the expense of the employer, that the
employee obtain the opinion of a third health care provider des-
ignated or approved jointly by the employer and the employee
concerning the information certified under subsection (b) of this
section.
(2) Finality
The opinion of the third health care provider concerning the
information certified under subsection (b) of this section shall be
considered to be final and shall be binding on the employer and
the employee.
29 U.S.C. § 2613(c)-(d).
14 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
relevant interim regulation similarly provides that, where an employer
doubts the accuracy of a certification, the employer "may require the
employee to obtain a second opinion at the employer’s expense. . . .
If the opinions of the employee’s and the employer’s designated
health care providers differ, the employer may require the employee
to obtain certification from a third health care provider, again at the
employer’s expense." 29 C.F.R. § 825.307(a), (c) (1993) (emphasis
added). The final regulations contain substantially similar language.
See 29 C.F.R. § 825.307(a)(2), (c) (2000).

B.

Our inquiry with regard to Rhoads’s FMLA claim is two-fold and
focuses on: (1) whether it was appropriate for the district court to
require Rhoads to prove that she suffered from a serious health condi-
tion in order to prevail on her FMLA interference claim, see 29
U.S.C. § 2611(11); and (2) whether Rhoads established an FMLA-
qualifying condition as a matter of law in light of SFSA’s failure to
pursue the second opinion procedures, see id. § 2613(c)-(d). For pur-
poses of our discussion, we assume, without deciding, that Rhoads
proffered adequate notice to invoke FMLA protections and submitted
sufficient medical certification of her condition. See 29 C.F.R.
§ 825.303(a) (1993); 29 U.S.C. § 2613(a), (b)(1)-(3), (4)(B); infra
note 9.

1.

First, the district court correctly required Rhoads to prove that she
was afflicted with an FMLA-qualifying condition, because otherwise
she did not have any right under the Act with which her employer
could have interfered. See Diaz v. Fort Wayne Foundry Corp., 131
F.3d 711, 713 (7th Cir. 1997) (holding that FMLA interference suits
are to be resolved "by asking whether the plaintiff has established, by
a preponderance of the evidence, that he is entitled to the benefit he
claims"); see also Rankin v. Seagate Techs., Inc., 246 F.3d 1145,
1148 (8th Cir. 2001) (requiring plaintiff in FMLA action to prove a
serious health condition pursuant to a three-prong objective test); cf.
Miller v. AT&T Corp., ___ F.3d ___, Nos. 00-1277, 00-1928, 2001
WL 475934 (4th Cir. May 7, 2001) (affirming summary judgment for
plaintiff on question of defendant’s liability under FMLA where
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 15
plaintiff established, inter alia, that she suffered from a qualifying
condition).

Rhoads suggests, instead, that once she met the FMLA’s notice and
certification requirements, she was undisputedly entitled to leave
whether or not she suffered from a serious health condition. She relies
on a Department of Labor publication for the proposition that "an ‘eli-
gible’ employee who has met FMLA’s notice and certification
requirements . . . may not be denied FMLA leave." United States
Department of Labor, Employment Standards Administration, Wage
and Hour Division, FMLA Compliance Guide (emphasis in original).
This guide includes a disclaimer, however, recognizing that it is pro-
vided merely as a public service, and that "[t]he Federal Register and
the Code of Federal Regulations remain the official source for regula-
tory information published by the Department." Id. Without other
support, Rhoads’s assertion — that adequate notice and certification
alone entitled her to FMLA leave — must fail.9
9
The parties disagree over whether Rhoads even rendered sufficient
information to put SFSA on notice that she might qualify for FMLA
leave. Rhoads contends that she not only provided adequate notice via
her September 1, 7, and 13 conversations with SFSA officials, but she
also proffered ample certification of her condition within fifteen days of
the commencement of her absence, by way of Dr. Chanales’s September
2 and 13 letters, despite SFSA’s failure to make the requisite written
request for this certification. Thus, Rhoads avers, she is entitled to judg-
ment as a matter of law on the notice issue. The FDIC, to the contrary,
asserts that Rhoads provided only meager information to her supervisor
that was insufficient to invoke the FMLA, and even Dr. Chanale’s Sep-
tember 13 letter was too ambiguous to justify FMLA leave.
Due to the format of the special verdict form, the jury never reached
the notice issue. That is, Question 2, parts (a) through (c), addressed
whether Rhoads suffered from a serious health condition, while Question
3 encompassed whether she met the FMLA’s notice obligations. Once
the jury determined in Question 2(a) that Rhoads did not encounter a
period of incapacity requiring at least a three-day absence from work,
and thus that she was not afflicted with an FMLA-qualifying condition,
the jury was directed to end its deliberations without addressing further
questions on the verdict form. See J.A. 2031-34.
Because we conclude that the jury was entitled to find that Rhoads did
not suffer from an FMLA-qualifying condition, the notice issue is ren-
16 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
2.

Next, we consider whether Rhoads established a serious health
condition as a matter of law based on SFSA’s failure to follow the
FMLA’s second opinion procedures. See 29 U.S.C. § 2613(c)-(d). On
the one hand, Rhoads maintains, inter alia, that to hold otherwise
would: undermine the FMLA’s procedures for assessing the validity
of a leave request; reward miscreant employers; and place employees
in need of FMLA leave in the intolerable situation of having to fear
that, years down the road, a jury might disbelieve their doctor’s opin-
ion. Rhoads relies, in part, on Sims v. Alameda-Contra Costa Transit
District, 2 F. Supp. 2d 1253, 1263 (N.D. Cal. 1998) (holding that if
an initial medical certification "sufficiently establishes . . . a serious
health condition, [the employer], having failed to exhaust the second
and third-opinion process, is not entitled to challenge that medical
finding now"), and the district court’s decision in Miller v. AT&T, 60
F. Supp. 2d 574, 580 (S.D. W. Va. 1999) (citing Sims for the proposi-
tion that "[a]n employer who wishes to contest the validity of a medi-
cal certification must use the second-opinion procedures of § 2613(c)-
(d)").10 Significantly, the court in Sims concluded that the second and
third opinion provisions in the FMLA are ambiguous and, thus, it
undertook to examine the policies underlying the Act, its legislative
history, and its structure and internal logic. See Sims, 2 F. Supp. 2d
at 1260.

dered moot. That is, even assuming that Rhoads provided sufficient
notice of her purported need for leave, she was not actually entitled to
it, because she was not afflicted with a serious health condition within
the meaning of the FMLA.
10
We affirmed the district court’s decision in Miller on other grounds.
We noted, however, that a second opinion would have been of no use in
that case. In Miller, the plaintiff sought leave for a severe bout with the
flu. Rather than doubting that the plaintiff had the flu and was unable to
work, the defendant questioned whether she had received treatment on
two or more occasions and whether the flu was an FMLA-covered ill-
ness. See Miller, ___ F.3d at ___, 2001 WL 475934, at *10 n.13. In this
case, conversely, Rhoads’s employer did doubt that she was ill and
unable to work. Thus, a second opinion might have been useful, if not
required.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 17
The FDIC, on the other hand, relies on the Eighth Circuit’s deter-
mination that "[t]he language of § 2613(c)(1) . . . is merely permis-
sive[.]" Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858, 860
(8th Cir. 2000). That court concluded, accordingly, that the FMLA
does not require "an employer to obtain a second opinion or else
waive any future opportunity to contest the validity of the certifica-
tion." Id.

We agree with the Eighth Circuit’s assessment in Stekloff. In doing
so, we recognize that "[u]nder the most basic canon of statutory con-
struction, we begin interpreting a statute by examining the literal and
plain language of the statute." Carbon Fuel Co. v. USX Corp., 100
F.3d 1124, 1133 (4th Cir. 1996). The FMLA provides only that an
employer "may" seek a second, or third, opinion if it questions the
validity of an employee’s proffered medical certification of her condi-
tion. See 29 U.S.C. § 2613(c)(1), (d)(1); see also 29 C.F.R.
§ 825.307(a), (c) (1993) (relevant regulation using same terminology,
i.e., "may"). Because the term "may" is permissive, the plain language
of the statute indicates that an employer who questions the validity of
a certification has the option of seeking a second and third opinion,
without being required to do so. Moreover, the plain language of the
Act does not suggest that an employer must pursue these procedures
or be forever foreclosed from challenging whether an employee suf-
fered from a serious health condition; and nothing in the legislative
history of the FMLA explicitly supports that interpretation. See Car-
bon Fuel, 100 F.3d at 1133 ("Absent explicit legislative intent to the
contrary, the statute should be construed according to its plain and
ordinary meaning."); see also Sims, 2 F. Supp. 2d at 1261 (discussing
what the FMLA’s legislative history "suggests," without concluding
that Congress made its intent clear with regard to the second opinion
issue).

This construction of the Act does not mean that there are not poten-
tial pitfalls for an employer who chooses not to pursue a second opin-
ion. For example, in Thorson v. Gemini, Inc., 205 F.3d 370, 381-82
(8th Cir. 2000), a precursor to Steckloff, the Eighth Circuit affirmed
a grant of summary judgment against an employer who failed, as in
this case, to seek even initial certification of the plaintiff’s purported
serious health condition. While the plaintiff’s position was supported
by contemporaneous notes from her physician indicating that she was
18 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
not to work, the employer had to rely on a physician’s evaluation
made months after the plaintiff was terminated and a psychologist’s
evaluation of the plaintiff two years later. See id. at 382. Under these
particular facts, the court concluded that the employer could not show
"that there remain[ed] a genuine issue of material fact on the question
of Thorson’s capacity to perform her job." Id.

A critical distinction between this case and the Eighth Circuit’s
decision in Thorson is that, in the latter, there was no evidence inde-
pendent of the defense’s belated evaluations of the plaintiff to indicate
that she had been misleading her employer about her health condition.
In this case, however, Rhoads’s employer had immediate reason to
believe that she was not really sick. See supra note 3. This evidence,
contrasted with the contemporaneous opinion of Rhoads’s physician,
created a genuine issue of material fact for the jury. Indeed, prior to
trial, the district court refused to grant summary judgment to either
party, because of the existence of this genuine issue of material fact.
Upon hearing the evidence, the jury concluded that Rhoads did not
suffer from an FMLA-qualifying condition. For the reasons discussed,
Rhoads is not now entitled to judgment as a matter of law or a new
trial merely because her employer failed to pursue the FMLA’s sec-
ond and third opinion procedures.

IV.

Rhoads also maintains that the district court erroneously granted
summary judgment to the FDIC on her claims under the ADA. We
also review de novo this award of summary judgment, "viewing the
facts and the inferences to be drawn therefrom in the light most favor-
able to the nonmovant." Riddick v. Sch. Bd., 238 F.3d 518, 522 (4th
Cir. 2000). "Summary judgment is appropriate only ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judg-
ment as a matter of law.’" Id. (quoting Fed. R. Civ. P. 56(c)).

A.

Rhoads’s claims under the ADA for unlawful termination and fail-
ure to make a reasonable accommodation both require a showing that
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 19
she was "disabled" within the meaning of the ADA. See, e.g., Haul-
brook v. Michelin North America, Inc., ___ F.3d ___, No. 00-1546,
2001 WL 558152, at *5 (4th Cir. May 24, 2001); Mitchell v. Wash-
ingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999).11 The ADA
defines a "disability," in part, as "a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual[.]" 42 U.S.C. § 12102(2)(A).12 "Substantially limits"
means, inter alia, "[s]ignificantly restricted as to the condition, man-
ner or duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or duration
under which the average person in the general population can perform
that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii) (2000).
Examples of "major life activities" are "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." Id. § 1630.2(i).

1.

Rhoads maintains that when she suffered the symptoms of asthma
and migraine headaches, she was, at times, unable to work, leave her
home, care for herself, or perform tasks requiring concentration. Her
health conditions, Rhoads avers, also limited her ability to breathe,
think, and sleep. Though Rhoads suffered from asthma as an adoles-
11
In a wrongful discharge case under the ADA, a plaintiff makes out
a prima facie case by demonstrating that "(1) he is within the ADA’s pro-
tected class; (2) he was discharged; (3) at the time of his discharge, he
was 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, ___
F.3d at ___, 2001 WL 558152, at *5.
In a failure to accommodate case, a plaintiff establishes a prima facie
case by showing "(1) that he was an individual who had a disability
within the meaning of the statute; (2) that the [employer] had notice of
his disability; (3) that with reasonable accommodation he could perform
the essential functions of the position . . .; and (4) that the [employer]
refused to make such accommodations." Mitchell, 190 F.3d at 6.
12
"Disability" under the ADA and "serious health condition" under the
FMLA are distinct concepts that require different analyses. See 29 C.F.R.
§ 825.702(b) (2000).
20 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
cent, her symptoms had been in remission from childhood through the
time she began working for SFSB in 1987. One of her physicians, Dr.
Chanales, concluded that Rhoads’s "asthma was exacerbated by her
exposure to cigarette smoke at work." J.A. 416. She was, however,
able to work in a smoke-free environment. Indeed, once Rhoads
began working at home in May 1993, she was able to perform all of
her job responsibilities and assignments. Dr. Chanales explained why
he recommended that this arrangement continue:

[W]hat I suggested is that the company allow her to work
at home. Because if she were not exposed to the cigarette
smoke, then at that point, she would be able to carry on.
Asthma is not something that is a permanently crippling dis-
ease. Obviously, we can manage asthma. Many asthmatics
work, but they can’t work in a place where they get sick.

J.A. 816. Although Rhoads was sometimes exposed to cigarette
smoke outside the workplace — such as in shopping malls and restau-
rants — she would quickly leave those establishments once she
noticed the preliminary signs of exposure, e.g., a stuffy nose, sore
throat, and tight chest. Moreover, prior to her employment with SFSB
and SFSA, Rhoads had engaged in physical activities including bicy-
cling and ballet dancing.

2.

a.

The district court concluded, first, that Rhoads did not establish
that her ability to work was substantially limited. The court relied, in
part, on our decision in Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir.
1994), a case remarkably similar to this one, in which the plaintiff, an
employee of the Virginia Department of Transportation ("VDOT"),
maintained that her tobacco smoke allergy substantially limited her
ability to work.13 In Gupton, the plaintiff asserted that her employer
violated her rights by failing to provide a smoke-free workplace. See
13
Gupton involved a claim under the Rehabilitation Act of 1973, 29
U.S.C. § 794, whose relevant provisions parallel those of the ADA. See,
e.g., Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001).
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 21
id. at 204. We held that, in order to make the required showing that
she was disabled, the plaintiff "had to show not merely that her
allergy made her ‘incapable of satisfying the singular demands of a
particular job,’ but that it ‘foreclose[d] generally [her opportunity to
obtain] the type of employment involved.’" Id. at 205 (quoting Forrisi
v. Bowen, 794 F.2d 931, 934, 935 (4th Cir. 1986)) (alterations in orig-
inal). Moreover, following the district court’s ruling on summary
judgment in this case, the Supreme Court issued its decision in Sutton
v. United Air Lines, Inc., 527 U.S. 471, 492 (1999), holding that "[t]o
be substantially limited in the major life activity of working, . . . one
must be precluded from more than one type of job, a specialized job,
or a particular job of choice."

We must accordingly agree with the district court that Rhoads has
failed to make a sufficient showing that she was substantially limited
in her ability to work, where she has established only that she was
unable to function in one particular smoke-infested office. As the
court explained, "there appears to be no reasonable material or rele-
vant factual dispute concerning [Rhoads’s] ability to perform her job
requirements at a very high level, provided that she is given the
opportunity to perform her work in a smoke-free atmosphere . . . ."
Rhoads, 956 F. Supp. at 1246. Therefore, Rhoads has not shown, as
required, that she is generally foreclosed from jobs utilizing her skills
because she suffers from smoke-induced asthma and migraines. Cf.
Gupton, 14 F.3d at 205 ("While [Gupton] did introduce evidence that
her allergy to tobacco smoke made her unable to continue in her cur-
rent position working as a highway utilities specialist in the VDOT’s
Fair Ridge office, she presented no evidence that her allergy fore-
closed her generally from obtaining jobs in her field.").14
14
According to Rhoads, the FDIC "appear[s] to suggest that the only
place [she] would likely encounter [secondhand smoke] was in [the
SFSA] offices as the result of their continued violations of established
smoking bans" — a "ludicrous" assertion. Appellant’s Br., at 44 (empha-
sis added). The problem for Rhoads, however, is that she does not
attempt to show why this suggestion is preposterous. If, for example,
Rhoads had shown that she was generally foreclosed from a broad class
of jobs utilizing her skills because of a widespread tolerance of interof-
fice smoking, she would have bolstered her case.
22 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
b.

The district court next addressed Rhoads’s contention that other
major life activities were also substantially affected by her impair-
ments. The court concluded that, because the substantial limitations
on the additional activities cited by Rhoads — including the ability
to breathe — all were triggered solely by her workplace environment,
the proper inquiry "in these limited circumstances" remained focused
on her ability to work. See Rhoads, 956 F. Supp. at 1247 (citing for
comparison Mobley v. Bd. of Regents, 924 F. Supp. 1179, 1187 (S.D.
Ga.) (rejecting claim that asthma presents an "obvious" impairment to
breathing when symptoms would arise only in one workplace),
vacated, 26 F. Supp. 2d 1374 (S.D. Ga. 1996) (reopening the case for
consideration of further evidence)).

In support of the district court’s conclusion, the FDIC additionally
relies on Keck v. New York State Office of Alcoholism & Substance
Abuse Services, 10 F. Supp. 2d 194, 199 (N.D.N.Y. 1998) (conclud-
ing that the failure of the plaintiff to allege specific instances of diffi-
culty breathing outside of her workplace, due to her sensitivity to
tobacco smoke and perfume, "argues strongly for considering her dis-
ability as one limiting the activity of work only"), and Benson v. Law-
rence Livermore National Laboratory, No. C95-2746 FMS, 1997 WL
651349, at *4 (N.D. Cal. Oct. 14, 1997) (relying on the district court’s
decision in this case, Rhoads, to conclude that the plaintiff’s ADA
claim failed as a matter of law where she proffered no evidence "to
show that her symptoms were triggered by anything but her work
environment"), aff’d, 163 F.3d 605 (9th Cir. 1998) (unpublished table
decision). In another similar case, Homeyer v. Stanley Tulchin Asso-
ciates, Inc., the Seventh Circuit reversed the district court’s dismissal

This brings us to another of Rhoads’s contentions, "that an employer
who is not willing to provide reasonable accommodation to its employ-
ees, cannot simply point to other employers who are willing to provide
such accommodation, and establish proof that a disabled individual is not
precluded from other employment ‘in general.’" Appellant’s Br., at 44.
It does not escape us that the failure of an employer to enforce a smoking
ban is hardly commendable. That failure does not mean, however, that
the employer is liable for its actions, or inactions, under the ADA.
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 23
of the plaintiff’s ADA claim based on substantial limitation of her
ability to breathe, where the plaintiff had alleged that her breathing
was generally impaired by a respiratory condition. See 91 F.3d 959,
962 n.1 (7th Cir. 1996). The court recognized that the plaintiff did not
claim that it was only at work that tobacco smoke aggravated her con-
dition, and that there might be many other places where her ailment
combined with secondhand smoke limited her ability to breathe. See
id. The court suggested, however, that if the plaintiff could not prove
after discovery that it was not her workplace alone that aggravated her
condition, then judgment against her would be appropriate. See id.

We accordingly hold that, where an ADA plaintiff asserts that she
is disabled based on a substantial limitation of a major life activity
other than working, but her condition is aggravated solely by her
workplace environment, her claim must be assessed under our fore-
closure test for a limitation on working. See Gupton, 14 F.3d at 205.
In this case, the record shows that, following adolescence, Rhoads
functioned normally until 1987, when her employment with SFSB
and SFSA caused her to be exposed to secondhand smoke in the
workplace. Once she was permitted to work at home, her condition
improved and her job performance was unimpeded. There simply is
no genuine issue of material fact with regard to the conclusion that
any substantial limitations on Rhoads’s major life activities — work-
ing, breathing, or any others cited by Rhoads — were solely the result
of exposure to secondhand smoke in her workplace. Thus, we review
her claim as one based only on a substantial limitation on the ability
to work, and we apply the Gupton foreclosure test. As already dis-
cussed above, Rhoads’s claim fails under its requirements.

Though Rhoads contends that application of the foreclosure test to
claims based on activities other than working contradicts our own pre-
cedent, we find her assertion unavailing. Rhoads relies on our deci-
sion in Williams v. Channel Master Satellite Systems, Inc., for the
proposition that "the general foreclosure test applies only to claims
brought under the major life activity of working." 101 F.3d 346, 349
(4th Cir. 1996). In Williams, the plaintiff, who had been directed by
her doctor not to lift more than twenty-five pounds following an auto-
mobile accident, asserted that she was substantially limited in the
major life activities of working and lifting. Id. at 348, 349. We con-
cluded that the district court erred, in relevant part, by suggesting that
24 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
the foreclosure test must be used to determine if a major life activity
other than working — in that case, lifting — is substantially limited.
Id. at 349. Our Williams decision is distinguishable from this case,
however, because, unlike Rhoads’s condition, the Williams plaintiff’s
lifting limitation was not created or aggravated solely by her work
environment. If, in this instance, Rhoads had shown that she was
debilitated by exposure to secondhand smoke outside of the work-
place, then the proper inquiry would have been whether her ability to
breathe, etc., was "significantly restricted" as compared to the breath-
ing ability of the "average person in the general population." 29
C.F.R. § 1630.2(j)(1)(ii) (2000). However, because Rhoads estab-
lished that her abilities to breathe and engage in other life activities
were limited only by her exposure to tobacco smoke in the workplace,
the proper inquiry is whether, pursuant to the foreclosure test, she was
substantially limited in her ability to work.

3.

Rhoads maintains, as alternative bases for establishing a "disabil-
ity" under the ADA, that she was "regarded as" being disabled, see
42 U.S.C. § 12102(2)(C), and that she had a "record of disability," see
id. § 12102(2)(B). First, in order to demonstrate that she was regarded
as disabled, Rhoads was required to show that: (1) her employer "mis-
takenly believe[d] that [she] has a physical impairment that substan-
tially limits one or more major life activities," or (2) her employer
"mistakenly believe[d] that an actual, nonlimiting impairment sub-
stantially limits one or more major life activities." Haulbrook, ___
F.3d at ___, 2001 WL 558152, at *5 (citing Sutton, 527 U.S. at 489).
In Haulbrook, the plaintiff contended that his employer, Michelin,
regarded him as disabled because of his breathing difficulties arising
from workplace chemical exposures. See id. at ___, 2001 WL 558152,
at *5. We determined that Haulbrook could not establish that he was
regarded as disabled based on a substantial limitation on his ability to
work, because his employer "believed Haulbrook could continue to
perform his previous job, but simply believed that he might have to
be assigned to perform the same work in a different building." Id. at
___, 2001 WL 558152, at *6. Moreover, we concluded that Haul-
brook could not prove that he was regarded as disabled based on a
substantial breathing limitation, because "the company’s internal
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 25
communications simply reflect uncertainty about Haulbrook’s condi-
tion." Id. at ___, 2001 WL 558152, at *7.

For similar reasons, we agree with the district court’s conclusion
in this case that Rhoads failed to show that her employer erroneously
believed that she was substantially limited in her ability to work,
because "the record indisputably reveals SFSA thought the plaintiff
was capable of performing her job in a smoke-free environment[.]"
Rhoads, 956 F. Supp. at 1247. Furthermore, we conclude that Rhoads
cannot establish that her employer mistakenly believed that she was
substantially limited in other major life activities, such as breathing,
as the evidence shows, at best, that SFSA officials knew she suffered
from smoke-induced asthma and migraines, but doubted her declara-
tions pertaining to the severity of her condition.

Next, in order to prove that she had a record of disability, Rhoads
was required to establish that she had "a history of, or has been mis-
classified as having, a mental or physical impairment that substan-
tially limits one or more major life activities." 29 C.F.R. § 1630.2(k)
(2000). Contrary to Rhoads’s assertion that she had a record of dis-
ability, the undisputed evidence reflects that, until starting work for
SFSB, Rhoads had not suffered the effects of asthma and migraines
since childhood, and she had been able to engage in activities like
bicycling and ballet dancing. Thus, Rhoads’s contention falters for
lack of substantiation.

In summary, Rhoads has failed to establish that she was "disabled"
within the meaning of the ADA, either because of being afflicted with
an actual disability, being regarded as disabled, or having a record of
disability. Therefore, we must affirm the district court’s award of
summary judgment to the FDIC on her ADA claims for failure to
make a reasonable accommodation and discriminatory discharge.

B.

Finally, Rhoads contends that her termination constituted an act of
retaliation in violation of the ADA. This basis of recovery does not
require that the claimant be disabled. Rather, the ADA provides that
"[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
26 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hear-
ing under this chapter." 42 U.S.C. § 12203(a) (emphasis added). In
order to prevail on a claim of retaliation, a plaintiff must either offer
sufficient direct and indirect evidence of retaliation, or proceed under
a burden-shifting method. See Brinkley v. Harbour Recreation Club,
180 F.3d 598, 606-07 (4th Cir. 1999) (outlining the alternative ave-
nues of proof by which an aggrieved employee can prove a Title VII
violation); Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir.
2001) (recognizing that "[b]ecause the ADA echoes and expressly
refers to Title VII, and because the two statutes have the same pur-
pose — the prohibition of illegal discrimination in employment —
courts have routinely used Title VII precedent in ADA cases").

On the one hand, "an employee may utilize ‘ordinary principles of
proof using any direct or indirect evidence relevant to and sufficiently
probative of the issue.’" Brinkley, 180 F.3d at 607 (quoting Tuck v.
Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992)). To avoid summary
judgment, "the plaintiff ‘must produce direct evidence of a stated pur-
pose to discriminate and/or [indirect] evidence of sufficient probative
force to reflect a genuine issue of material fact.’" Id. (quoting Gold-
berg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988)) (alteration
in original). "‘What is required is evidence of conduct or statements
that both reflect directly the alleged discriminatory attitude and that
bear directly on the contested employment decision.’" Id. (quoting
Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)).

On the other hand, under the burden-shifting method of proof, to
establish a prima facie case of retaliation, a plaintiff must show that:
(1) she engaged in a protected activity; (2) her employer acted
adversely against her; and (3) her protected activity was causally con-
nected to her employer’s adverse action. See Haulbrook, ___ F.3d at
___, 2001 WL 558152, at *8; Beall v. Abbott Labs., 130 F.3d 614,
619 (4th Cir. 1997). The employer then has the burden "to rebut the
presumption of retaliation by articulating a legitimate nonretaliatory
reason for its actions." Beall, 130 F.3d at 619. If the employer does
so, the plaintiff "must demonstrate that the proffered reason is a pre-
text for forbidden retaliation." Haulbrook, ___ F.3d at ___, 2001 WL
558152, at *8. The plaintiff always bears the ultimate burden of per-
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 27
suading the trier of fact that she was the victim of retaliation. See
Beall, 130 F.3d at 619.

1.

The dispute culminating in this termination came on the heels of
Rhoads’s consultation with an attorney and threats of legal action
against the bank, in addition to her numerous requests over the years
for accommodation of her health conditions (including enforcement
of the smoking ban). Rhoads alleges that, during the August 18, 1993
meeting with SFSA officials, including Jones:

I told them that I felt I was being backed into a corner, and
had consulted a lawyer as to my rights. Mr. Jones became
upset and responded that I would regret that I had done so.

J.A. 1021. Then, in an August 20 letter, Rhoads’s lawyer requested
that Rhoads be permitted to continue working at home until the no-
smoking policy at the Frederick Center proved successful, recogniz-
ing that the new policy was untested and "Standard Federal’s record
in enforcing existing smoking regulations does not inspire confi-
dence." J.A. 217. In further correspondence of September 13 — fol-
lowing Jones’s September 10 letter threatening disciplinary action
against Rhoads — her attorney admonished that "this situation raises
the issue of whether Standard Federal is living up to its obligations
under the Americans with Disabilities Act and similar local laws" and
warned that SFSA might be violating the FMLA. J.A. 267. In
response, Jones wrote in his September 13 letter to Rhoads that, so
long as she was an SFSA employee, the bank would communicate
with her and not her lawyer. Jones subsequently recommended firing
Rhoads and served on the SFSA committee that considered the mat-
ter, though he abstained from actually voting on her termination.

SFSA’s attendance policy provided the following guidelines for
dealing with excessive absenteeism, to be monitored in twelve-month
cycles: after four to five absences, a written warning is issued; after
six to eight absences, the employee is placed on probation; and, where
there are "over ten" absences, termination procedures may be initi-
ated. See J.A. 113-14. In this case, Rhoads maintains that SFSA offi-
cials both began termination proceedings and approved her discharge
28 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
before she accumulated more than ten absences. Moreover, SFSA’s
own documents show that "there are situations where employees have
been absent more than ten days and have not been terminated." J.A.
292. Relatedly, the SFSA sick leave policy directed employees, when
they were too ill to work, to notify their supervisors as soon as possi-
ble. For absences exceeding five consecutive workdays, employees
were mandated to provide a doctor’s note. For absences of more than
ten days, employees faced termination unless they requested disability
leave and submitted supporting medical documentation. In practice,
SFSA was known to allow employees to document their illnesses
after they returned to work from sick leave, although Rhoads was
denied this privilege.

2.

The district court concluded, without considering the first avenue
of proof (sufficient direct and indirect evidence of retaliation), that
Rhoads failed to establish a claim under the second avenue of proof
(the burden-shifting method). According to the court, even assuming
that Rhoads made out a prima facie case of retaliation, she failed to
demonstrate that the FDIC’s proffered reason for her termination —
her excessive, unexcused absenteeism — was untrue and, thus, a pre-
text for discrimination. That is, the court determined that Rhoads was
merely the target of "normal sanctions for misconduct" from which
she could not be shielded by pursuing a discrimination suit. See
Rhoads, 956 F. Supp. at 1250 (quoting Ross v. Communications Satel-
lite Corp., 759 F.2d 355, 366 (4th Cir. 1985)). Moreover, the court
was impressed by evidence that, even if Jones admonished Rhoads
that she would be sorry for consulting a lawyer, he attempted to
accommodate her after making that statement and abstained from vot-
ing for her termination. And the court noted that, though "SFSA man-
agers . . . testified that SFSA may have applied its sick leave policy
more stringently against Rhoads than other employees, all included
the important statement that the disparity in Rhoads’s treatment . . .
was due to her lengthy prior absences[.]" Id. at 1251. This testimony
was, the court concluded, "a completely adequate rationalization in
the view of this Court." Id.

Rhoads insists, however, that she made a sufficient showing of
retaliation under both avenues of proof. First, she maintains that she
 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 29
proffered adequate direct evidence by way of Jones’s statement that
she would regret consulting a lawyer. According to Rhoads, this state-
ment was made on August 18, 1993. Two days later, her attorney sub-
mitted a letter requesting that she be permitted to continue working
at home until the new no-smoking policy at the Frederick Center was
deemed effective. Then, on September 13 — two days before
Rhoads’s termination — her lawyer corresponded with SFSA again,
this time warning that the bank might be violating the ADA and other
laws. Jones soon after recommended Rhoads’s discharge and served
on the committee that dealt with it, even if he did abstain from voting
on this matter.

Moreover, Rhoads contends that she made a sufficient showing of
retaliation under the burden-shifting method of proof to survive sum-
mary judgment. In support of her prima facie case, Rhoads avers that:
she engaged in protected activity by, inter alia, requesting accommo-
dations for her purported disability, such as enforcement of the smok-
ing ban and permission to continue working at home; SFSA acted
adversely against her by terminating her; and her protected activity
was causally connected to her discharge, as evidenced by their close
temporal proximity. To rebut the FDIC’s explanation that Rhoads was
fired for excessive unexcused absenteeism, she proffered evidence
that SFSA sick leave policies were applied more stringently to her
than other employees, as well as the direct evidence already discussed
above.

We conclude that this direct evidence of a stated purpose to dis-
criminate (Jones’s purported threat to Rhoads regarding her consulta-
tion with a lawyer) coupled with the related indirect evidence (the
timing of her attorney’s subsequent letters to SFSA in relation to the
bank’s decision to fire her, and Jones’s involvement in that decision),
create a genuine issue of material fact with regard to Rhoads’s retalia-
tion claim. Additionally, we agree with Rhoads that summary judg-
ment was inappropriate under the burden-shifting analysis, and that
she established a sufficient prima facie case of discrimination. See,
e.g., Carter v. Ball, 33 F.3d 450, 460, (4th Cir. 1994) (recognizing
that, where a plaintiff shows that he was discharged soon after engag-
ing in protected activity, the evidence is sufficiently suggestive of
retaliatory motive to at least make out a prima facie case of unlawful
discrimination).
30 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
In so holding, we find ourselves in disagreement with the district
court over whether there is adequate evidence to rebut the FDIC’s
legitimate, non-discriminatory reason for Rhoads’s discharge. Though
the district court was persuaded that no reasonable fact finder could
conclude that Rhoads was the victim of retaliation, this conclusion
was reached by improperly drawing inferences in favor of the FDIC.
See, e.g., Rhoads, 956 F. Supp. at 1251 ("Jones, rather than harassing
Rhoads, appears to have tried to accommodate[ ] her wishes and to
have abstained from voting for her termination. In those circum-
stances, there is a strong inference that Jones had no discriminatory
animus against Rhoads."). At the summary judgment stage, the evi-
dence must be viewed in the light most favorable to Rhoads. See Rid-
dick, 238 F.3d at 522. Viewed in the proper light, the record
establishes that once Rhoads failed to heed Jones’s warning not to
consult an attorney, she was terminated, purportedly for excessive
unexcused absenteeism, even though her fellow employees had not
been discharged for the same conduct. Cf. Baird v. Rose, 192 F.3d
462, 468 (4th Cir. 1999) (concluding that the plaintiff’s factual asser-
tions were adequate to state a discrimination claim where the evi-
dence showed, inter alia, that an absenteeism policy used to exclude
plaintiff from a school choir had not been uniformly applied). While
SFSA officials attempt to justify this inconsistent treatment based on
Rhoads’s lengthy prior absences, they fail to acknowledge that, in the
months prior to September 1, 1993, Rhoads had been working at
home by mutual agreement with a bank supervisor. Although Rhoads
may not ultimately prevail on her retaliation claim, there is certainly
sufficient evidence to overcome the FDIC’s motion for summary
judgment.

V.

For all of the foregoing reasons, we reverse the district court’s
award of summary judgment to the FDIC on Rhoads’s retaliation
claim under the ADA, but we affirm the court’s determinations of the
remainder of her claims. See Rhoads v. FDIC, 956 F. Supp. 1239 (D.
Md. 1997); Order of Judgment, No. 5-94-1548 (D. Md. Mar. 4, 1998);
Order, No. B-94-1548 (D. Md. Aug. 12, 1998).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED