UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1361
ACIE LYONS,
Plaintiff – Appellant,
v.
ERIC K. SHINSEKI, Secretary of the Department of Veterans
Affairs,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cv-02532-WDQ)
Submitted: October 31, 2011 Decided: November 17, 2011
Before KING, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James L. Fuchs, Michael J. Snider, LAW OFFICE OF SNIDER &
ASSOCIATES, LLC, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Larry D. Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Acie Lyons brought suit against the Secretary of the
Department of Veterans Affairs (“Secretary”) alleging violations
of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A.
§§ 701-796 (West 2008 & Supp. 2011). He appeals the district
court’s order granting the Secretary’s motion for summary
judgment and dismissing his retaliation and disability-based
discrimination claims. In this appeal, Lyons advances three
theories of disability-based discrimination. He argues first,
that he was subjected to disparate treatment; second, that his
work environment was hostile; and third, that the Secretary
failed to provide Lyons with reasonable accommodations based on
his disability. Lyons also argues that the district court’s
analysis of his retaliation claims is flawed. Finding no error,
we affirm.
We review de novo a district court’s order granting
summary judgment, “viewing the facts and the reasonable
inferences therefrom in the light most favorable to the
nonmoving party.” Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.
2011), cert. denied, __ U.S. __, 80 U.S.L.W. 3018 (U.S. Oct. 11,
2011) (Nos. 10-1447, 10-1497). Summary judgment may be granted
only when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
2
317, 322 (1986). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). For a nonmoving party to
present a genuine dispute of material fact, “[c]onclusory or
speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving party’s]
case.” Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir. 2002) (internal quotation marks omitted).
The same standards and proof scheme used to interpret
violations of the Americans with Disabilities Act 1 (“ADA”) are
used to determine whether a violation of the Rehabilitation Act
has occurred. 2 See 29 U.S.C. § 794(d) (2006); Myers v. Hose, 50
F.3d 278, 281 (4th Cir. 1995). In order to make out a prima
facie case for disability discrimination under any of the
theories Lyons advances, he must first establish that he is an
individual with a disability. 42 U.S.C.A. § 12112; see Rohan v.
Networks Presentations LLC, 375 F.3d 266, 272 n.9
(4th Cir. 2004) (hostile work environment); Rhoads v. FDIC, 257
1
42 U.S.C.A. §§ 12101-12213 (West 2005 & Supp. 2011).
2
The ADA was amended effective January 1, 2009, after this
suit was filed. See ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553. Congress did not expressly intend for
these changes to apply retroactively, and so we must decide this
appeal based on the law in place prior to the amendments.
Landgraf v. USI Film Prods., 511 U.S. 244, 270-71 (1994).
3
F.3d 373, 387 n.11 (4th Cir. 2001) (failure to accommodate);
Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001)
(disparate treatment).
The ADA defines disability as either: “(A) a physical
or mental impairment that substantially limits one or more . . .
major life activities . . . ; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2) (2006); see also Rohan, 375 F.3d at 273. A
physical impairment is “any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more
. . . body systems” including, inter alia, the musculoskeletal
system. 45 C.F.R. § 84.3(j) (2010). “[A]ny mental or
psychological disorder,” including “emotional or mental illness”
satisfies the impairment requirement. Id.
Standing alone, an impairment is not sufficient to
establish a disability; the employee also must prove the
impairment substantially limits a major life activity.
Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). The
disability analysis is therefore “an individualized inquiry,
particular to the facts of each case.” EEOC v. Sara Lee Corp.,
237 F.3d 349, 352 (4th Cir. 2001). The substantial limitation
requirement “sets a threshold that excludes minor impairments
from coverage.” Heiko v. Colombo Sav. Bank, 434 F.3d 249, 257
(4th Cir. 2006). An impairment is substantially limiting when
4
it “prevents or severely restricts the individual from doing
activities that are of central importance to most people’s daily
lives.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
198 (2002).
Lyons presented evidence in the district court that he
was unable to lift more than twenty to twenty-five pounds and
that, for a brief time, he could not sit continuously for more
than four hours. He stated that he also has impairments
affecting his ability to walk, drive, concentrate, and work, and
he argues that when all his impairments are considered in
combination, they amount to substantial limitation in the major
life activity of working.
ADA regulations and EEOC interpretative guidelines set
forth a non-exhaustive list of major life activities. See 29
C.F.R. § 1630.2(i) (2011); 29 C.F.R. Pt. 1630, App. § 1630.2(i).
The regulations specify, and we have suggested, that lifting is
a major life activity. 29 C.F.R. Pt. 1630, App. § 1630.2(i);
Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346,
349 (4th Cir. 1996), abrogated on other grounds by Baird ex rel.
Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999). In Williams,
we held, “as a matter of law, that a twenty-five pound lifting
limitation—particularly when compared to an average person’s
abilities—does not constitute a significant restriction on one’s
ability to lift, work, or perform any other major life
5
activity.” Id. Following the Supreme Court’s decision in
Toyota, we clarified that, because disability determinations
require individualized inquiries, our Williams decision “should
not be read to create a per se rule that a twenty-five pound
lifting restriction can never constitute a disability.”
Taylor v. Fed. Express Corp., 429 F.3d 461, 463 n.2
(4th Cir. 2005).
Lyons has failed to produce probative evidence that
his inability to lift more than twenty-five pounds constitutes a
substantial limitation. “[T]he manual tasks unique to any
particular job are not necessarily important parts of most
people’s lives.” Toyota, 534 U.S. at 201. Accordingly, the
impact of the lifting limitation on Lyons’ ability to perform
the manual tasks his job duties required, standing alone, is
insufficient to establish a substantial limitation on a major
life activity. See id. The record is devoid of any evidence
that Lyons’ lifting restriction resulted in any limitation
beyond difficulties in his responsibility for collecting heavy
loads of soiled linen.
Lyons asserts that this court should consider the
effect of his lifting restriction on his employment prospects in
determining whether he is substantially limited. Although we
may consider a plaintiff’s employment prospects in connection
with lifting restrictions, see Taylor, 429 F.3d at 464
6
(collecting cases), Lyons did not produce any evidence of this
nature.
In response to the Secretary’s motion for summary
judgment, Lyons submitted an affidavit stating that he suffers
disabilities as a result of his back injury, including “chronic
fatigue and depression, and a sleep disorder as well as
headaches.” Lyons reported difficulties “balancing, standing,
bending, and walking” and indicated that he “no longer
perform[s] routine household chores such as doing dishes,
laundry, dusting, vacuuming, floor cleaning, or bathroom
cleaning due to symptoms.” Lyons now argues that, considered
together, these impairments establish a substantial limitation
in the major life activity of working. However, Lyons’
affidavit is the sole evidence of these impairments. Lyons’
bald, self-serving assertions of disability, unsubstantiated by
any documentation or other testimony, are not sufficient to
create a material issue of fact as to whether he is
substantially limited in a major life activity. 3 See Thompson,
312 F.3d at 649 (stating conclusory allegations and “mere
3
We find unpersuasive Lyons’ citation to social security
disability regulations in support of the proposition that the
Secretary failed in his obligation to provide a proper medical
evaluation.
7
scintilla of evidence” insufficient to withstand summary
judgment).
Lyons asserts that the Secretary did not contest his
need to perform light duty. To the extent Lyons is arguing he
was regarded as disabled, his assertion is unconvincing.
Viewing the record in the light most favorable to Lyons, Jerry
Diggs, the head of the section in which Lyons worked, believed
that Lyons was not able to work as a sewing machine operator.
However, as discussed above, the inability to perform the
specific role for which one was hired is insufficient to
establish a disability. See Rohan, 375 F.3d at 277 n.19; see
also 29 C.F.R. § 1630.2(j)(3).
Because no reasonable fact finder could conclude that
Lyons was actually disabled, regarded as disabled, or documented
as disabled, we decline to reach Lyons’ remaining arguments
relating to his disability-based discrimination claims. We
conclude that the district court did not err in granting summary
judgment in favor of the Secretary with respect to these claims.
Next, we turn to the retaliation claims. Lyons argues
that the district court improperly resolved disputed facts with
respect to his retaliation claims. To establish a prima facie
case of retaliation, Lyons must show: (1) that he has engaged
in protected conduct; (2) that he suffered an adverse action
subsequent to engaging in the protected conduct; and (3) that
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“there was a causal link between the protected activity and the
adverse action.” Laber v. Harvey, 438 F.3d 404, 432
(4th Cir. 2006).
First, Lyons asserts that the district court
improperly concluded that there was no dispute that Lyons’
request for accommodation occurred after his transfer to Loch
Raven. He notes that he testified that, “[i]n or around August
2003,” he approached Diggs seeking reasonable accommodations
“for [his] right arm and post-traumatic stress disorder.”
At his deposition, Diggs testified that, when Lyons
had been notified of his reassignment to Loch Raven, but before
the move, he told Diggs that he had a disability and wanted
reasonable accommodation. In response, Diggs provided Lyons
with the forms necessary to document his disabilities and make
the request. Lyons never returned the forms. In Lyons’
deposition, he stated that he asked for reasonable accommodation
“[i]f [Diggs] wanted me to be reassigned.” Lyons later
submitted an affidavit in response to the Secretary’s motion for
summary judgment in which he stated he sought accommodation
“[i]n or around August 2003.” This statement does not create a
genuine issue of material of fact regarding the timing of Lyons’
request for accommodation. Specifically, it does not contradict
the earlier accounts, it is merely less precise. Moreover, to
the extent the summary judgment affidavit is inconsistent,
9
federal courts “have held with virtual unanimity that a party
cannot create a genuine issue of fact sufficient to survive
summary judgment simply by contradicting his or her own previous
sworn statement . . . without explaining the contradiction or
attempting to resolve the disparity.” Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 806 (1999) (collecting cases).
Next, Lyons contends that the district court
impermissibly concluded that the workers’ compensation program
manager’s decision to remove him from light duty was not
influenced by Diggs’ animus towards him. He argues that the
district court improperly privileged Diggs’ deposition testimony
over that of another witness. We disagree. The district court
denied this retaliation claim because “Lyons offers only his
uncorroborated belief that Diggs was influencing Greenawalt;
those beliefs do not create a genuine dispute about whether her
decision is retaliatory.” Lyons does not identify any evidence
supporting an inference that Diggs influenced the program
manager’s decision.
Finally, Lyons contends that the district court
erroneously held that too great a delay had occurred between the
resolution of Lyons’ EEOC complaint and his termination to
support a finding that his EEOC complaint and termination were
causally related. Lyons maintains that he persistently sought
accommodation and always was denied, and he argues that he
10
established a substantial temporal link between his protected
activity and his termination.
“[A] causal connection for purposes of demonstrating a
prima facie case exists where the employer takes adverse
employment action against an employee shortly after learning of
the protected activity.” Price v. Thompson, 380 F.3d 209, 213
(4th Cir. 2004). Generally, however, the passage of time alone
cannot provide proof of causation unless the “temporal proximity
between an employer’s knowledge of protected activity and an
adverse employment action” was “very close.” Clark Cnty Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)
(internal quotation marks omitted). Consequently, a lengthy
time lapse between a protected activity and an adverse
employment action can negate an inference of causal connection.
Dowe v. Total Action Against Poverty, 145 F.3d 653, 657
(4th Cir. 1998).
Here, Lyons filed an EEOC complaint in 2004. He
received an unfavorable final decision in October 2005, and his
termination was proposed in May 2006. Although Lyons told Diggs
he had a disability in 2003, he produced no evidence that Diggs
knew he had sought reasonable accommodation through Tillage
thereafter. Accordingly, he cannot establish the close temporal
proximity necessary to prove his protected activity was the
cause of his termination. See Hooven-Lewis v. Caldera, 249 F.3d
11
259, 278 (4th Cir. 2001) (“A six month lag is sufficient to
negate any inference of causation.”). Moreover, even if Lyons
were able to demonstrate a prima facie case of retaliation as to
his termination, the Secretary articulated a legitimate, non-
retaliatory reason for the adverse action, specifically, Lyons’
absenteeism. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 793 (1973) (outlining burden-shifting framework).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and would not aid the decisional process.
AFFIRMED
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