United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-7129 September Term, 2021
FILED ON: JUNE 14, 2022
TIMOTHY SKRYNNIKOV,
APPELLANT
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00609)
Before: TATEL ∗, MILLETT and PILLARD, Circuit Judges
JUDGMENT
We have considered this appeal on the record from the United States District Court for the
District of Columbia and on the briefs and oral argument of the parties. The court has afforded
the issues full consideration and has determined that they do not warrant a published opinion. See
D.C. Cir. R. 36(d). For the following reasons, it is
ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.
Timothy Skrynnikov invoked his rights under the federal Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2612(a)(1)(D), and a corresponding D.C. law (the DCFMLA), D.C. Code
§ 32-503(a), to take leave from his job at the Federal National Mortgage Association (Fannie Mae)
in 2009. As relevant here, the FMLA guarantees twelve weeks per year of protected leave
following a disabling health problem and the DCFMLA concurrently guarantees sixteen weeks
per two-year period. 29 U.S.C. § 2612(a)(1)(D); D.C. Code § 32-503(a).
Beginning in July 2009, Skrynnikov took leave for a qualifying health issue. Upon
∗ Judge Tatel assumed senior status after this case was argued and before the date of this judgment.
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exhaustion of his twelve weeks of federal FMLA leave at the beginning of October, Skrynnikov
opted to continue his leave under the longer leave allowance provided by the DCFMLA.
Skrynnikov’s DCFMLA leave was set to end on October 29.
In mid-October, Skrynnikov sustained unrelated rib injuries and requested to use
accumulated vacation time to briefly delay his return to work, even as he expressed willingness to
return as scheduled if no extension were available. During the last two weeks in October,
Skrynnikov had several communications with Fannie Mae and its independent leave coordinator
regarding this leave extension request and his return to work. The parties disagree on some of the
details of those interactions, but it is clear that on October 30, Fannie Mae retroactively extended
Skrynnikov’s DCFMLA leave through October 29. Also on October 30, however, Fannie Mae
sent Skrynnikov a letter notifying him that he was no longer in job-protected status under the
medical-leave laws so his position would not be held open for him, but that if he provided medical
documentation he could retroactively and temporarily be treated as employed for purposes of
salary continuation under Fannie Mae’s short-term disability benefit program. Skrynnikov applied
for short-term disability benefits. Fannie Mae’s independent leave coordinator denied the benefit
application as inadequately documented and Fannie Mae terminated Skrynnikov’s employment
effective November 13, 2009.
Skrynnikov sued Fannie Mae, claiming that it had interfered with his rights under the
FMLA and DCFMLA. 29 U.S.C. § 2617(a); D.C. Code § 32-510. He also claimed that his
termination amounted to retaliation for acts separately protected by the False Claims Act, 31
U.S.C. § 3730 et seq. The district court ordered the dispute into non-binding arbitration as required
by Fannie Mae’s Dispute Resolution Policy. Skrynnikov v. Fed. Nat’l Mortg. Ass’n, 943 F. Supp.
2d 172, 179-80 (D.D.C. 2013). After an adverse arbitral award, Skrynnikov exercised his right to
return to court. The district court denied cross-motions for summary judgment on the ground that
material issues of fact remained in dispute and set a trial date. Skrynnikov v. Fed. Nat’l Mortg.
Ass’n, 226 F. Supp. 3d 26, 32-38 (D.D.C. 2017). The case was thereafter reassigned to a new
district judge.
Shortly before the date set for trial, Skrynnikov abandoned his retaliation claim and the
parties stipulated to waiving their jury rights. The parties agreed that “there are few or no factual
issues remaining in dispute” and that “the issues remaining for resolution are largely matters of
law,” so proposed “to file renewed motions for summary judgment in lieu of trial.” Joint Mot. to
Withdraw Jury Trial at 1-2, J.A. 35-36. This time, considering only the alleged medical-leave
interference, the district court held that no genuine disputes of material fact remained and granted
Fannie Mae’s motion. Skrynnikov v. Fed. Nat’l Mortg. Ass’n, No. 11-cv-609, 2021 WL 4989450,
at *3-5 & n.3 (D.D.C. Oct. 27, 2021).
Skrynnikov here appeals only the portion of the district court’s decision concerning his
DCFMLA challenge. Reviewing de novo, Waggel v. George Washington Univ., 957 F.3d 1364,
1371 (D.C. Cir. 2020), we affirm, albeit on slightly different grounds, see Process & Indus.
Developments Ltd. v. Federal Republic of Nigeria, 27 F.4th 771, 775 (D.C. Cir. 2022).
The parties agree that the elements of a DCFMLA interference claim are materially the
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same as under the federal FMLA. See Waggel, 957 F.3d at at 1371 n.1. “To prevail on an FMLA
interference claim, a plaintiff must show (1) employer conduct that reasonably tends to interfere
with, restrain, or deny the exercise of FMLA rights, and (2) prejudice arising from the
interference.” Id. at 1376. Although we have indicated that a plaintiff bears the burden to
demonstrate both elements under the federal FMLA, see id., it is less clear who bears the burden
of proving (or disproving) prejudice under the D.C. law. In Washington Convention Center
Authority v. Johnson, for example, the D.C. Court of Appeals suggested that under the DCFMLA
the “burden is on the employer to show that,” for reasons unrelated to the leave, “an employee
would not have been employed when the time for reinstatement came.” 953 A.2d 1064, 1077
(D.C. 2008). We need not resolve the burden-allocation question here, because Skrynnikov’s
claim fails no matter who bears the burden on the prejudice element.
Skrynnikov’s arguments before the district court and on appeal focus on establishing that
Fannie Mae interfered with his exercise of his right to medical leave. He contends that Fannie
Mae’s actions in October 2009 were a deliberate effort to “run out the clock on his protected-leave
period” so that it could fire him. Appellant’s Br. 21. He points particularly to two actions that he
says amounted to unlawful interference: (1) Fannie Mae’s request that he provide a fitness-for-
duty certification before returning to work from his rib injury in mid-October 2009, and (2) its
failure to provide him with notice that his DCFMLA period was set to expire at the end of that
month. The district court rejected Skrynnikov’s theory as attempting to read specific certification
and notice provisions of “federal [FMLA] regulation[s] into District of Columbia [medical-leave]
law.” Skrynnikov, 2021 WL 4989450, at *5.
Because the lack of any evidence that the asserted interference caused prejudice to
Skrynnikov defeats his claim in any event, we decline to rule on the novel questions of District of
Columbia law regarding whether DCFMLA protections parallel those of the FMLA in the specific
ways he contends. See Waggel, 957 F.3d at 1377. The prejudice element’s requirement that a
violation of medical-leave rights be shown to have caused the employee’s harm ensures that an
“employer is liable only for compensation and benefits lost ‘by reason of the violation,’ for other
monetary losses sustained ‘as a direct result of the violation,’ and for ‘appropriate’ equitable relief,
including employment, reinstatement, and promotion.” Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 89 (2002) (quoting 29 U.S.C. § 2617(a)). That requirement is unmet here.
The undisputed record evidence is that Fannie Mae eliminated Skrynnikov’s job as
unnecessary. Skrynnikov does not dispute, for instance, that his “primary responsibility” before
his leave was to collate certain data into reports and that Fannie Mae was working to automate that
process. Pl.’s Resp. to Def.’s Statement of Undisputed Facts at 4, J.A. 1451 (citation omitted).
Likewise, he does not deny that as much as 80 to 90 percent of his previous “job functions were
permanently eliminated when the automation project was completed” during his leave period, id.
at 5, J.A. 1452, nor otherwise refute his supervisor’s deposition testimony that the “primary driver”
behind his termination “was that the work that he had been performing over time was fully
automated, and the skill set that [he] had wasn’t a skill set . . . that there was a role for on the
team . . . on a go-forward basis,” Mallon Dep. 618-19, J.A. 1262. Moreover, there is no evidence
suggesting that the automation effort itself was somehow initiated in response to Skrynnikov’s
protected activity. Rather, “the only evidence in the record as to why Fannie Mae terminated
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[Skrynnikov] shows that it did so for reasons that had nothing to do with his exercise of [leave]
rights.” Skrynnikov¸ 2021 WL 4989450, at *5.
Skrynnikov simply denies that Fannie Mae’s job-elimination evidence is “independently
material.” Pl.’s Resp. to Def.’s Statement of Undisputed Facts at 4-5, J.A. 1451-52. We disagree.
As noted above, Skrynnikov’s interference claim depends on two elements: interference and
prejudice. Factually undisputed evidence that Fannie Mae no longer needed anyone to perform
the tasks that comprised Skrynnikov’s job goes directly to whether a reasonable jury could find
that his termination amounted to prejudice suffered “by reason of the” alleged interference.
Ragsdale, 535 U.S. at 89 (citation omitted). And although Skrynnikov is correct that Fannie Mae
did not identify this reason in its letter informing him of his termination, Pl.’s Resp. to Def.’s
Statement of Undisputed Facts at 41-42, J.A, 1488-89, the record developed below—which
contains no evidence from Skrynnikov factually disputing the elimination of his position—
substantiates Fannie Mae’s identification of automation as a lawful reason for Skrynnikov’s
termination and deprives a reasonable jury of any basis to hold otherwise. See Waggel, 957 F.3d
at 1377. As Skrynnikov has identified no other source of prejudice, that suffices to support the
district court’s judgment.
Finally, we note that the lawful elimination of a plaintiff’s position does not bar an FMLA
claim if the plaintiff should have been reinstated to a different but “equivalent” position. 29 U.S.C.
§ 2614(a)(1)(B); D.C. Code § 32-505(d)(2). But “[a]n employee has no greater right to
reinstatement or to other benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period.” 29 C.F.R. § 825.216(a); see Washington
Convention Ctr. Auth., 953 A.2d at 1077. And, in any event, because Skrynnikov never argued
that Fannie Mae was obligated to assign him to a different, equivalent position, the point is forfeit.
See United States v. Gewin, 759 F.3d 72, 78 (D.C. Cir. 2014).
For the foregoing reasons, we affirm. Pursuant to D.C. Circuit Rule 36, this disposition
will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven
days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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