Toni Works v. Carolyn Colvin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1288

TONI C. WORKS,

Plaintiff - Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner, U.S. Social Security
Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cv-01284-RDB)

Argued: February 21, 2013 Decided: April 24, 2013

Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit
Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Richard Talbot Seymour, LAW OFFICES OF RICHARD T.
SEYMOUR, PLLC, Washington, D.C., for Appellant. Jason Daniel
Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Gary M. Gilbert, Sarah E.
Diouf, Stephanie M. Herrera, Daniel A. Katz, THE LAW OFFICES OF
GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Appellant Toni C. Works filed this employment

discrimination suit under the Rehabilitation Act, 29 U.S.C.

§§ 701 et seq., against the Social Security Administration (the

“SSA” or “Appellee”). She claims the SSA illegally terminated

her from a probationary program for disabled individuals

attempting to re-enter the workforce. This case was first heard

by an administrative law judge (“ALJ”), who decided in the SSA’s

favor, and that decision was upheld by the Equal Employment

Opportunity Commission (“EEOC”).

Works then filed a separate suit in the district

court. There, in her response to the SSA’s Motion to Dismiss,

or Alternatively, for Summary Judgment, Works requested

discovery pursuant to Rule 56(d) of the Federal Rules of Civil

Procedure, as she had not yet had the opportunity to conduct

discovery at the district court level. The district court

granted the SSA’s motion –- deeming it a summary judgment motion

-- without passing on Works’s discovery request. Indeed, the

court addressed the request for the first time in its subsequent

denial of Works’s Motion for Reconsideration.

We hold the district court’s denial of Works’s

discovery request was an abuse of discretion. Works set forth

in an affidavit specific, discoverable evidence that could

enable her to defeat the SSA’s motion, including testimony from

3
SSA employees and managers who did not testify at the

administrative hearing and were never deposed.

Therefore, we vacate the district court’s orders

granting summary judgment to the SSA and denying Works’s Motion

for Reconsideration, and remand with instructions to grant

Works’s request for discovery.

I.

A.

Works is a disabled veteran of the United States Navy.

She suffered a service-related accident in 1985, which resulted

in a permanently disabling seizure disorder. She was honorably

discharged from the Navy in 1989. From November 1989 to

September 1991, she worked as a biomedical equipment technician.

The next year, Works stopped working as a result of her seizure

disorder. She applied for and received 100% disability

compensation from the SSA, which found her to be totally

disabled. After that, Works applied for and received 100%

disability benefits from the Department of Veterans Affairs

(“VA”), which likewise found that she was completely disabled.

From 1992 to 2002, Works did not have gainful employment.

On August 26, 2002, Works began working at the SSA as

a probationary employee, “which meant she could work for the SSA

on a trial basis for one year without having to discontinue her

disability benefits to demonstrate whether she could

4
successfully perform the job and be retained on a permanent

basis.” Works v. Astrue, Civ. Action No. 10-1284, 2011 WL

1197655, at *1 (D. Md. Mar. 29, 2011) (J.A. 2156); 1 see also 20

C.F.R. § 404.1592(a). Works worked as a “Management Assistant”

in the Office of Management Operations (“OMO”). As a Management

Assistant, she was required to, inter alia, conduct workflow

studies; maintain, gather, and compile informational records

such as organizational and workflow charts; make routine

calculations, such as staff hours and workload figures; and

develop, evaluate, and advise on methods and procedures for

providing administrative support systems to organizations. Her

supervisors at OMO were Marjorie Warner, Branch Manager, and

William Johnson-Bey, Deputy Branch Manager. OMO project

managers for whom she worked were Noma Carter and Jane Leidig.

The quality of Works’s performance during her tenure

with OMO is disputed. On March 19, 2003, Johnson-Bey met with

Works to discuss her mid-year performance review. There is no

written record; however, in a later memo given to Works, Warner

recounted the results of that review. That memo, which was

given to Works on June 23, 2003, stated that at the mid-year

point in March, Works’s performance was “basically satisfactory,

1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

5
although not exceptional.” J.A. 1701 (the “June 2003 Memo”).

The June 2003 Memo continued, “The only negative addressed at

[the time of the March mid-year review] was your handling of a

budget data entry project assigned to you by the Deputy Branch

Manager, Bill Johnson-Bey, which you had difficulty

understanding and needed an excessive amount of direction to

complete.” Id.

The June 2003 Memo also mentioned another project:

developing a database to capture course registration data. The

memo states, “[W]e asked that you prepare and schedule a

briefing to demonstrate the database. Your co-worker, shortly

thereafter, demonstrated the database, in passing, and you

interjected a few items. . . . [F]eedback since, has indicated

that your co-worker has done most of the work on this project.”

J.A. 1701. 2

Also during the first half of her probationary period,

Works experienced some health problems. From late December 2002

2
In April 2003, Works’s supervisors asked for a
presentation on the progress of this project, which she was
completing with co-worker George Frank. At the administrative
hearing, Warner testified, “[I]t was obvious that this was
George’s work and not Toni’s” and said that Frank told her Works
“was more of a hindrance than helping.” J.A. 1103. Frank, who
also testified at the administrative hearing, agreed that Works
was “taking credit for the majority of th[e] project from
[him].” Id. at 1031. But he also testified that Works had
“good work ethics,” was “a diligent worker,” “applied herself,”
and her work was “good quality.” Id. at 1017, 1018, 1020.

6
to January 2003, Works’s doctors at the VA began trying new

medications for her seizure disorder. In January, she suffered

a seizure at home and as a result, could not work for nearly two

weeks. Works had not accrued enough sick leave to cover her

absence from work, so she requested advanced sick leave from

Warner, who approved the request. On February 13, 2003, she

suffered another seizure -– this time at work -- and requested

another week’s worth of leave, which was approved. Works missed

other days in February, both related and unrelated to her

disability. Her leave was approved for all of these days. See

J.A. 1683-85 (leave slips with approval signatures of Johnson-

Bey and Warner). 3

During the spring and summer of 2003, Works took

additional leave for issues unrelated to her seizures, but all

of this leave was also approved by either Warner or Johnson-Bey.

See J.A. 1686-97 (leave slips, all approved by Johnson-Bey or

Warner). Works also suffered a seizure on July 15, after which

she missed work from July 15-17, and this leave was approved by

Warner. See id. at 1694.

3
One of these leave slips for February 24 and 25 was
approved by Warner “pending documentation.” J.A. 1685. The
record shows that a medical excuse was provided for February 25,
but it is unclear whether Warner retracted her contingent
approval.

7
 The June 2003 Memo also outlined performance

deficiencies during a portion of the second half of Works’s

probationary period, from March to June 2003. It stated, “Since

[the March mid-year] progress review, several other issues have

come to light, which indicate a need for improvement and which

may impact our decision to retain you beyond your probationary

period.” J.A. 1701. These issues were as follows:

• Works was resistant to join the typing pool for
two hours a day, which would have extended the
opportunity to work overtime on the weekends,
because Works did not want to work overtime;

• Works wrongly notified Warner that she could be
released from having her work reviewed because
her mentor was pleased with her work;

• Works took too long completing a project assigned
by Johnson-Bey. The June 2003 Memo stated, “Much
direction is needed to get a completed assignment
from you. [Y]ou don’t seem to comprehend the
instructions given.”

Id. at 1701-02. The June 2003 Memo went on to discuss Works’s

character traits as follows:

Dependability - [I]n addition to your assignments not
being completed timely, you are frequently absent,
unaware of your leave balances, and you seem to have
trouble comprehending the rules for requesting and
using leave. . . . Your documentation is usually
vague and doesn’t usually justify total incapacitation
for duty. In addition, you frequently make incorrect
entries on the sign-in sheets and you continue to make
these incorrect entries even after instruction is
provided. . . . Your sign-in and out times
frequently disagree and your leave slips often do not
agree with the entries in the leave column on the
sign-in sheets[.] You also sign out or annotate your

8
 leave on other employees’ lines, or you sign out, out
of order.

Application of Time – [Y]ou are often out of the area.
You have been seen in the halls and at other
employees’ desks for long periods of time and you
appear to be having personal conversations rather than
work-related conversations. You have often been
observed on the phone for long periods of time, as
well, having personal conversations. You have also
been observed sleeping during meetings, most recently
at the CMA Townhall meeting.

Id. at 1702. The June 2003 Memo concluded with the statement,

“Thus far your performance and conduct has considerably

deteriorated since the last performance discussion and immediate

and substantial improvement is needed.” Id.

On July 18, 2003, after a three-day absence due to a

seizure, Works went to Warner and asked if she would be retained

beyond her probationary period. Warner told her, if she had to

make the decision that day, Works would not be retained “because

she hadn’t made any effort to improve in any of the areas []

pointed out [in the June 2003 Memo].” J.A. 1121. After that

conversation, Works approached the EEOC on July 22, 2003, about

a possible claim. Then, she asked to meet with Warner and

Johnson-Bey in order to show them that she was capable of

performing the job. They agreed.

Warner set up the meeting for the morning of July 25.

Works attended with a banker’s box full of documents in order to

justify the work she had been doing; however, upon closer

9
examination, the box was full of the same two pages copied over

and over again. When questioned about this, Works “began crying

and talking about personal problems she was having with her home

life.” J.A. 1122.

That afternoon, Works was given a notice of proposed

removal, with an effective date of two weeks later, August 8,

2003, about two weeks short of the end of her one-year

probationary period. The termination notice gave the following

reasons for termination:

• “repeated failure to complete assignments as
expected,” which can “largely be attributed to
your excessive amount of time that you have been
seen away from your workstation, socializing with
others, aimlessly walking the halls and spending
an inordinate amount of time on the telephone for
personal reasons”; and

• “[I]t is essential that our employees report to
work regularly and perform their duties. Your
actions are unacceptable because when you have
been out on unscheduled leave, management cannot
depend on you being available to accept and
perform the assignments expected.”

J.A. 2003.

The following Monday, July 28, 2003, Works returned to

work and asked Warner for reassignment to a different position.

Warner referred Works to Joan Stewart-Stevens, Assistant

Associate Commissioner for Management Operations Support, who

called a meeting with “all the managers . . . and team leaders,”

including Warner; Johnson-Bey; Leidig; Kathy Fox, Center

10
Director; Denise Kendall, Deputy Center Director; Yvonne Curry,

Team Leader; and Phyllis Branch-McCoy. 4 J.A. 1404-05 (the

“Stewart-Stevens Meeting”). Stewart-Stevens asked all those

present, “[S]hould this employee be terminated[?]” and “each one

of them said yes.” Id. at 1405. It is undisputed that Noma

Carter, one of Works’s project managers, was not present at the

meeting. Works alleges Carter was deliberately excluded;

however, Warner testified at the administrative hearing that

Carter simply “didn’t show up,” and that they obtained Carter’s

approval for termination the following day. Id. at 1137. 5

4
Branch-McCoy’s position is not clear from the
administrative record.
5
Carter testified at the administrative hearing that she
was not invited to the Stewart-Stevens Meeting, but that her
opinion would be that Works should not have been fired. See
J.A. 1481. She also stated at the hearing that after Works was
notified of her termination, she was “never” asked about Works’s
performance. Id. at 1470. This is contrary to Warner’s
testimony: “Bill Johnson-Bey and I met with [Carter] separately
the next day [after Works was terminated] and asked her what her
opinion was of Toni’s performance . . . and we asked her if she
was in agreement with [the termination].” Id. at 1137. Warner
stated that Carter responded, “[Works] would function probably
better in a job that was more structured and had more
supervision” and that Works should not be retained. Id. at
1137-38.

11
 B.

After Works’s contact with the EEOC on July 22, 2003,

the administrative investigation began. Works requested a

hearing before an ALJ, and the administrative hearing took place

during four days in August 2006. The ALJ ruled in favor of the

SSA, finding the SSA granted the only accommodation Works ever

sought (taking leave), Works had consistent performance

problems, and those problems, rather than discrimination or

retaliation, resulted in her termination. Works appealed to the

EEOC, and on February 19, 2010, the EEOC affirmed the ALJ’s

decision.

Works then filed the instant action in the District of

Maryland on May 21, 2010. On August 26, 2010, the SSA filed a

Motion to Dismiss, or Alternatively, for Summary Judgment.

Because this motion was styled as a motion to dismiss, by

operation of the District of Maryland’s Local Rules, a

scheduling order could not be entered -– and discovery could not

commence -– until the motion was resolved. See D. Md. Local

Rule 104(4) (“Unless otherwise ordered by the Court or agreed

upon by the parties, the conference of counsel required by Fed.

R. Civ. P. 26(f) need not take place and discovery shall not

commence and disclosures need not be made until a scheduling

12
order is entered.”). 6 Works responded to the motion on February

8, 2011, and requested time to conduct discovery pursuant to

Rule 56(f) (actually 56(d)). 7 Her attorney attached an affidavit

specifically explaining the discovery needed at the district

court level and the relevance thereof. See J.A. 1872-73 (the

“Affidavit”).

The district court granted the SSA’s motion on March

29, 2011, without mentioning Works’s discovery request. Works

then filed a Motion for Reconsideration on April 12, 2011. In

that motion, she noted that the district court “remained silent”

on her discovery request, and she argued, “[t]he Court should

have permitted [her] to conduct discovery before ruling for

Defendant based on an incomplete factual record.” J.A. 2173.

The district court denied the Motion for Reconsideration on

February 3, 2012. As to the discovery request, the district

court stated only the following:

6
The operation of this rule can be seen in Young v. United
States, which states, “Because of the dispositive nature of the
[motion to dismiss or for summary judgment], it is not
appropriate at this time to enter a scheduling order that would
permit discovery to commence.” No. RDB-08-3349, 2009 WL
2170068, at *1 n.1 (D. Md. Jul. 20, 2009).
7
Rule 56(f) was recodified as Rule 56(d) on December 1,
2010, without significant substantive change. In her response
to the SSA’s motion in February 2011, Works inadvertently cited
to Rule 56(f). For ease of reference, we herein refer to the
appropriate rule as “Rule 56(d),” regardless of which version
was in effect at the particular time.

13
 [T]his Court does not need to expressly explain its
reasoning when granting an order that is inconsistent
with the requested relief. As the Fourth Circuit
explained in Malbon v. Pa. Millers Mut. Ins. Co., “the
determination of a motion need not always be expressed
but may be implied by the entry of an order
inconsistent with the granting of the relief sought.”
663 F.2d 936, 939 n.8 (4th Cir. 1980).

Id. at 2274. Works then timely noted this appeal. 8

II.

Rule 56(d) “require[s] that ‘summary judgment be

refused where the nonmoving party has not had the opportunity to

discover information that is essential to his opposition.’”

Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986));

see also Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

961 (4th Cir. 1996) (Generally, “summary judgment is appropriate

only after adequate time for discovery.” (internal quotation

marks omitted)). The rule “is intended as a safeguard against a

premature grant of summary judgment . . . thus, [courts] should

construe the rule liberally[.]” King v. Cooke, 26 F.3d 720, 726

(7th Cir. 1994); see also Harrods Ltd. v. Sixty Internet Domain

Names, 302 F.3d 214, 245 n.18 (4th Cir. 2002) (discussing with

approval sources in favor of applying the rule liberally). Such

8
The district court also dismissed a number of Works’s
claims for failure to exhaust administrative remedies. Works
does not appeal the judgment as to those claims.

14
requests should be denied, however, “if the additional evidence

sought for discovery would not have by itself created a genuine

issue of material fact sufficient to defeat summary judgment.”

Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal

quotation marks omitted). We should not reverse a denial of a

Rule 56(d) request unless we find “a clear abuse of discretion

or, unless there is a real possibility the party was prejudiced

by the denial of the extension.” Id. (internal quotation marks

omitted).

III.

A.

In her response to the SSA’s Motion to Dismiss or,

Alternatively, for Summary Judgment, Works asked the district

court for a chance to conduct discovery, as she had not yet had

the opportunity to conduct discovery at all in the district

court. She explained that she needed documents and deposition

testimony on “a range of disputed issues,” including:

• “Defendant’s characterization of Plaintiff’s work
on certain projects”;

• “Defendant’s knowledge that Ms. Works’ medical
condition affected her work performance such that
she required a reasonable accommodation”;

• “Defendant’s argument that Ms. Works was not a
qualified individual with a disability because
she could not perform the essential functions of
the job of a Probationary Management Assistant”;
and

15
 • “The specific performance deficiencies Defendant
asserts justify its termination of Ms. Works.”

J.A. 1835. The Affidavit, which was attached to the response,

explained that the following evidence needed to be collected:

• “instructions provided to Ms. Works”;

• “correspondence or the details of conversations
regarding Ms. Works’ performance on those
projects”;

• “the final version of any projects assigned to
Ms. Works, as well as drafts of Mr. Works’ work
on those projects”;

• “medical documentation from the Nurse’s Suite
. . . as it may give some indication of how Ms.
Works’ seizure disorder affected her work
performance and what symptoms she experienced and
exhibited in the workplace”;

• deposition testimony of Dionne (Harrison) Miller,
Blas Rueda-Caraballo, Renee M. Moore, John Wargo,
and/or Shawnte Jordan, “all of whom were
Probationary Management Assistants either during
Ms. Works’ tenure at the Agency or shortly after
her termination. In addition to being
comparators, these employees possess critical
information regarding the essential functions of
the Management Assistant position”;

• deposition testimony of Warner, Johnson-Bey,
Yvonne Curry, and Noma Carter, “all of whom
supervised Ms. Works on the various projects at
issue and can provide insight into her work
performance”;

• deposition testimony of Denise Kendall, Janet
Edrington, Kathy Fox, Ethel Maker, “and/or any
other Agency Employee Relations staff who were
involved in drafting or have knowledge regarding
the Termination of Career Conditional Appointment
issued to Ms. Works on July 25, 2003.”

16
Id. at 1872-73. 9

The SSA contends, “because the record in this case

makes clear that [Works] had every opportunity to discover all

pertinent facts necessary to her opposition,” and because she

“failed to demonstrate how any more discovery was ‘essential’ to

her opposition,” the district court’s tacit denial of her

request for discovery should be affirmed. Appellee’s Br. 27.

In support of its position, the SSA references the numerous

exhibits and pages of testimony from the ALJ hearing available

to Works and notes that she had ample time at the administrative

level to collect evidence relevant to her case.

B.

Rule 56(d) provides,

If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts
essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or
declarations or to take discovery; or

9
We reject the SSA’s contention that Works waived this
request for discovery because it was “not included in the
argument section of her summary judgment opposition brief” but
rather, “tucked . . . in the middle of her recitation of the
legal standards.” Appellee’s Br. 26. Works squarely presented
a Rule 56(d) affidavit to the district court, which this court
has deemed sufficient. See Harrods, 302 F.3d at 244 (“If a
party believes that more discovery is necessary for it to
demonstrate a genuine issue of material fact, the proper course
is to file a Rule 56([d]) affidavit[.]”).

17
 (3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). This court has long held that parties

wishing to obtain additional discovery must “specifically allege

why the information sought would have been sufficient to create

a genuine issue of material fact such that it would have

defeated summary judgment.” Strag v. Bd. of Trustees, 55 F.3d

943, 954 (4th Cir. 1995); see also Nguyen v. CAN Corp., 44 F.3d

234, 242 (4th Cir. 1995) (affirming district court’s denial of

Rule 56(d) request because Nguyen did not “focus our attention

on an affidavit presented to the district court that

particularly specifies legitimate needs for further discovery”).

In Ingle v. Yelton, this court held that the district

court abused its discretion in denying Ingle’s Rule 56(d) motion

in the context of a motion to dismiss, or in the alternative for

summary judgment. See 439 F.3d 191, 194 (4th Cir. 2006).

Ingle asked for extra time in order to seek videotape evidence

of a police chase and shooting that left her son dead. This

evidence was to be used to support Ingle’s theory of the case

with regard to qualified immunity: that the window in her son’s

car was closed when officers took shots at him. The defendant’s

theory, in contrast, was that Ingle’s son was aiming his shotgun

at the officers through an open car window. See id. at 195.

We held the district court abused its discretion in

failing to grant this request for discovery because it

18
“seemingly ignored” an earlier request for such evidence, the

necessary information was “possessed only by her opponent,” and

“there was a sufficient basis to believe such videos existed,

and [] this evidence represented Ingle’s principal opportunity

to contradict the assertion that the district court found

dispositive[.]” Id. at 196-97.

Like Ingle, here, Works set forth in the Affidavit

legitimate requests for discovery that could very well

“contradict the assertion[s]” made by the SSA to the district

court, as explained infra. Furthermore, because certain key

players in this matter -- employees of the SSA -- did not

testify at the administrative hearing and were not deposed at

that level or at the district court level, there is a “real

possibility that [Works] was prejudiced by the denial” of her

discovery request. Ingle, 439 F.3d at 195 (internal quotation

marks omitted).

C.

Works brought three claims under the Rehabilitation

Act, 29 U.S.C. §§ 701, et seq. 10 First, she claimed that the SSA

10
Section 504 of the Rehabilitation Act provides, “No
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance[.]” 29 U.S.C.
§ 794(a).

19
discriminated against her based upon her disability (the

“Discrimination Claim”); second, she claimed that the SSA failed

to accommodate her disability (the “Accommodation Claim”); and

third, she claimed that the SSA retaliated against her for

requesting leave and reassignment (the “Retaliation Claim”). As

explained below, her specific requests for discovery bear on the

disputed nature of each of these claims.

1.

The Discrimination Claim

The analysis used to determine whether an employer has

discriminated under the Rehabilitation Act is the same as the

analysis under the Americans with Disabilities Act (“ADA”). See

Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001). To

establish a claim of discrimination under the ADA, a plaintiff

must show she (1) was a qualified individual with a disability;

(2) was discharged; (3) was fulfilling her employer’s legitimate

expectations at the time of discharge; and (4) “the

circumstances of h[er] discharge raise a reasonable inference of

unlawful discrimination.” Reynolds v. Am. Nat’l Red Cross, 701

F.3d 143, 150 (4th Cir. 2012) (internal quotation marks

omitted). The SSA claims discovery on this claim would be

futile. We disagree.

The parties have agreed that Works has a disability:

the seizure disorder. As to the other aspect of the first

20
element, in determining whether a plaintiff is a qualified

individual, a court should ask whether she is someone who, “with

or without reasonable accommodation, can perform the essential

functions of the employment position[.]” 42 U.S.C. § 12111(8).

A court must decide (1) whether she could perform “functions

that bear more than a marginal relationship to the job at

issue,” and (2) if not, whether “any reasonable accommodation by

the employer would enable [her] to perform those functions.”

Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994)

(internal quotation marks omitted) (alteration in original).

The Affidavit asks for deposition testimony of other

Probationary Management Assistants who were employed either

during Ms. Works’s tenure at the SSA or shortly after her

termination. We agree with the Affidavit that “these employees

possess critical information regarding the essential functions

of the Management Assistant position,” J.A. 1873, which bears on

whether Works was a qualified individual.

Furthermore, there is certainly some dispute as to

Works’s performance, the employer’s expectations, and the level

of instruction and training provided to Works. See King v.

Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (considering whether

employee was performing to employer’s “legitimate expectations”

is key to establishing a prima facie discrimination claim).

Indeed, one of Works’s arguments to the district court was

21
“[w]hen she tried her best to complete projects successfully,

she was often prevented from doing so because she was never

given clear instructions or specific guidance as to what was

expected of her.” J.A. 1817. Noma Carter also testified, “I

don’t think” Works “received adequate training.” Id. at 1458.

To further investigate this claim, Works’s attorney

explains that he would like to ascertain the instructions

provided to Works for each of the projects the SSA claims she

failed to complete; correspondence or the details of

conversations regarding Works’s performance on those projects;

and the final version of any projects assigned to Works, as well

as drafts of her work on those projects. We find these requests

to be essential to Works’s claim.

Likewise, as to whether the circumstances of Works’s

discharge raise a reasonable inference of unlawful

discrimination, the record needs more development through

relevant discovery, as stressed in Works’s 56(d) request and the

Affidavit. Notably, Johnson-Bey -- one of Works’s supervisors

who approved her leave time, assigned projects to her, oversaw

those projects, and ultimately participated in the decision to

uphold her termination -- was never deposed and did not testify

22
at the administrative hearing. 11 His testimony is crucial on

the issue of Works’s job performance and her termination. Also

relevant to this inquiry is the testimony of SSA managers Kathy

Fox and Denise Kendall, who were allegedly present at the

Stewart-Stevens Meeting. These individuals also did not testify

at the administrative hearing and were not deposed.

On this point, the SSA argues “the only perspective

that is legally relevant is that of the Plaintiff’s supervisors,

Warner and Johnson-Bey,” and the court should not sit as a

“‘super-personnel department’” that second-guesses management

decisions. Appellee’s Br. 22-23 (citing King, 328 F.3d at 149;

quoting Anderson v. Westinghouse Savannah River Co., 406 F.3d

248, 272 (4th Cir. 2005)). The SSA also cites King for the

proposition that “the alleged opinions of [plaintiff’s]

coworkers as to the quality of [plaintiff’s] work are close to

irrelevant.” 329 F.3d at 149 (internal quotation marks

omitted).

11
The parties submit that because Johnson-Bey had retired
from the SSA at the time of the administrative hearing, he was
not subject to EEOC’s subpoena power. Thus, the only
opportunity Works had to cross-examine Johnson-Bey was at her
unemployment insurance appeal hearing, during which she was not
represented by an attorney. There, the focus was on Works’s
unemployment benefits and, specifically, whether Works had
engaged in misconduct disqualifying her from receipt of
unemployment benefits. And, the cross-examination was
necessarily limited by the scope of direct examination.

23
 These admonishments do not apply given that here, the

SSA has admitted, “Warner solicited feedback from coworkers who

worked with [Works] and she was informed that [Works’s] work

performance was not acceptable and that [Works] had trouble

completing virtually every assignment . . . given her.” J.A. 32

(internal quotation marks omitted). Therefore, Warner’s

perception was undoubtedly based on the opinions and perceptions

of Works’s coworkers, which would make deposing those coworkers

all the more crucial. Furthermore, because the SSA has

acknowledged that Johnson-Bey’s perspective is “legally

relevant,” Works should be able to depose him. Appellee’s Br.

22.

2.

The Accommodation Claim

In order to prevail on a reasonable accommodation

claim under the Rehabilitation Act, Works would have to prove

(1) she was an individual with a disability in the name of the

ADA; (2) the SSA had notice of her disability; (3) with

reasonable accommodation, Works could perform the essential

functions of the position; and (4) the SSA refused to make such

accommodation. See Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th

Cir. 2001). See also 34 C.F.R. § 104.12(a); 45 C.F.R.

§ 84.12(a) (“A recipient [of federal financial assistance] shall

make reasonable accommodation to the known physical . . .

24
limitations of an otherwise qualified handicapped applicant or

employee unless the recipient can demonstrate that the

accommodation would impose an undue hardship on the operation of

its program[.]”) (internal quotation marks and alterations

omitted)).

On this claim, the only accommodation Works sought was

medical leave to deal with her recurring seizures. As stated

above, there is evidence yet to be discovered regarding whether

Works could perform the essential functions of the position,

even considering her approved leave. This issue should be

fleshed out with testimony from those individuals whom Stewart-

Stevens said participated in the Stewart-Stevens Meeting and who

were not deposed at the administrative or district court level –

i.e., Warner, Johnson-Bey, Leidig, Kendall, Curry, Fox, and

Branch-McCoy. Indeed, the Affidavit requests evidence from “any

. . . agency Employee Relations staff who were involved in

drafting or have knowledge regarding the Termination of Career

Conditional Appointment issued to Ms. Works on July 25, 2003.”

J.A. 1873. Works’s project managers could also speak to their

perceptions of her performance at the time she was taking large

amounts of leave related to her disability. Medical

documentation from the Nurse’s Suite –- also requested in the

Affidavit -– could likewise shed light on if and how Works’s

seizure disorder affected her work performance.

25
 3.

The Retaliation Claim

In order to prevail on a Rehabilitation Act

retaliation claim, Works must prove (1) she engaged in a

protected activity; (2) the SSA took an adverse employment

action against her; and (3) a causal connection existed between

the protected activity and the adverse action. Hooven-Lewis,

249 F.3d at 272-74. If the SSA proffers a legitimate, non-

retaliatory reason for the decision, then Works must rebut the

reason as pretextual. See Brockman v. Snow, 217 F. App’x 201,

207, 208 n.6 (4th Cir. 2007) (Rehabilitation Act); Yashenko v.

Harrah’s N.C. Casino Co., 446 F.3d 541, 551 (4th Cir. 2006)

(Title VII) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 800-06 (1973)).

Again, discovery could aid Works on this claim. What

is most pertinent to this analysis is the termination notice

given to Works on July 25, 2003. That notice provided only two

reasons for termination: (1) failure to complete assignments as

expected, which was “largely . . . attributed to your excessive

amount of time that you have been seen away from your

workstation, socializing with others, aimlessly walking the

halls and spending an inordinate amount of time on the telephone

26
for personal reasons”; and (2) being absent from work on

unscheduled leave. 12 J.A. 2003.

Further discovery could help Works to develop her

theory of pretext. To demonstrate pretext, a plaintiff must

provide the court with admissible evidence that a defendant’s

“explanation is unworthy of credence or by offering other forms

of circumstantial evidence sufficiently probative of [illegal]

discrimination.” Mereish v. Walker, 359 F.3d 330, 336 (4th Cir.

2004) (internal quotation marks omitted); see also EEOC v. Sears

Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (“An employer’s

changing rationale for making an adverse employment decision can

be evidence of pretext.” (internal quotation marks omitted)).

First, Warner explicitly stated, “[t]he sole determination to

fire [Works] was based on performance,” J.A. 1303, despite the

different reasons set forth in the termination notice, such as

socializing and talking on the phone. 13 Other potential

12
At oral argument, the SSA’s counsel stated that the
banker’s box incident itself could be grounds for dismissal.
However, management did not mention this incident in its
termination notice.
13
Even if these were reasons for her termination, there is
disputed evidence regarding the time Works spent socializing and
on personal phone calls, something that could also be developed
with further discovery. For example, Warner testified at the
administrative hearing, “[Trevette] [H]ord, Yvonne Curry,
Phyllis Branch, No[ma] Carter, [and] Bill Johnson-Bey . . . all
told me that [Works] was on the phone and having a personal
conversation.” J.A. 1116. However, one of these individuals
(Continued)
27
evidence could support the pretext argument, including

information about Noma Carter’s exclusion from the Stewart-

Stevens Meeting and the idea that the SSA terminated Works for

taking leave, while nonetheless admitting, “all of [Works’s]

leave requests were granted by the [SSA].” Appellee’s Br. 32

n.3.

D.

Finally, we reject SSA’s argument that because Works

had a chance to conduct discovery at the administrative level,

she is somehow barred from doing so in federal court. Amirmokri

v. Abraham, 266 F. App’x 274 (4th Cir. 2008), the case cited by

the SSA, is inapposite. In that case, “the central participants

were all deposed.” Id. at 282 (internal quotation marks

omitted). Here, as mentioned supra, many of the crucial

decision-makers were not deposed. Moreover, the Supreme Court

has recognized a federal employee’s right to a trial anew

following an adverse administrative decision. See Chandler v.

Roudebush, 425 U.S. 840, 848 (1976) (holding, in the Title VII

context, “Congress intended to accord federal employees the same

has declared, “[Works] did not engage in extended conversations
on the telephone. All employees are allowed to make and receive
telephone calls, and Ms. Works never abused the privilege
bestowed upon us.” Id. at 1976 (Hord affidavit). Furthermore,
Carter claimed Works “did not socialize at the workplace any
more than other employees.” Id. at 1978 (Carter affidavit).

28
right to a trial de novo [following administrative proceedings]

as is enjoyed by private-sector employees[.]”); 14 Massingill v.

Nicholson, 496 F.3d 382, 384 (5th Cir. 2007) (“Once a federal-

sector employee exhausts her administrative remedies, she can

file two types of civil actions: a suit to enforce the final

administrative disposition, in which the court examines only

whether the agency has complied with the disposition, or de novo

review of the disposition.” (emphasis added) (footnote

omitted)). See also Boandl v. Geithner, 752 F. Supp. 2d 540,

557 (E.D. Pa. 2010) (“While we are entitled to review the

administrative record, we are also entitled to consider new

evidence presented by the parties, and are not bound in any way

by the determinations made by the [administrative review boards]

below.” (alteration in original)). 15

Further, while we are cognizant that parties who are

“dilatory in pursuing discovery” should not find solace in Rule

56(d), Harrods, 302 F.3d at 246, we have been presented with no

14
Although Chandler addressed Title VII, the Rehabilitation
Act and the ADA share “standards used to determine whether” a
violation has occurred, 29 U.S.C. § 794(d), and the ADA, in
turn, follows the “powers, remedies and procedures” set forth in
Title VII, 42 U.S.C. § 12117(a). See also Spencer v. Ashcroft,
147 F. App’x 373, 375 (4th Cir. 2005).
15
This court has also held in an unpublished opinion,
“[T]he existence of an administrative investigation and record”
does not “automatically preclude[] the need for discovery.”
Radi v. Sebelius, 434 F. App’x 177, 179 (4th Cir. 2011).

29
evidence tending to show that Works was dilatory in this manner,

and the district court certainly made no such finding in its

implicit denial of Works’s request for discovery.

IV.

For the foregoing reasons, the district court’s orders

granting summary judgment to the SSA and denying Works’s motion

for reconsideration are vacated, and this matter is remanded for

the district court to grant Works’s request for discovery.

VACATED AND REMANDED

30