UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1548
PHILLIP L. COCHRAN,
Plaintiff - Appellant,
v.
ERIC H. HOLDER, JR., Attorney General in his official
capacity,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-01328-JCC-TRJ)
Argued: May 10, 2011 Decided: June 21, 2011
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Phoebe Leslie Deak, LAW OFFICE OF LESLIE DEAK,
Washington, D.C., for Appellant. Ian James Samuel, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Tony West, Assistant Attorney General, Marleigh D.
Dover, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises out of a federal employee’s claim of
disability discrimination filed pursuant to the Rehabilitation
Act of 1973 (the “RA”), 29 U.S.C. § 791 et seq. Plaintiff-
Appellant Phillip Cochran (“Cochran”), a former Deputy United
States Marshal (“DUSM”), appeals the district court’s grant of
summary judgment to the United States Marshals Service (“USMS”)
on his claims that the USMS discriminated against him based on a
hearing disability. For the following reasons, we affirm.
I.
As this is an appeal from a grant of summary judgment, we
present the facts in the light most favorable to the appellant.
Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009).
A.
Cochran served as a DUSM from 1986 to 1993. DUSMs’ primary
mission is “to provide for the security” of judicial personnel.
28 U.S.C. §566(a). Their responsibilities generally include
protecting witnesses, providing safe transportation and handling
of prisoners, and apprehending fugitives. To help ensure the
agents’ safe and effective performance of these duties, the USMS
imposes a demanding set of medical fitness requirements. Of
particular relevance at the time of Cochran’s retirement was the
agency’s hearing standard. DUSMs were required to “be able to
2
hear [a] whispered voice at 15 feet with each ear.” J.A. 29.
Significantly, DUSMs had to meet the minimum hearing requirement
without the use of a hearing aid. This was due to the risk of
hearing aids being “knocked out during a struggle, not being
worn by the individuals when they should be,” or not being
“tuned or adjusted properly.” J.A. 290-91.
In November 1992, following a required periodic medical
examination at work, Cochran learned that he suffered from
hearing loss which kept him from satisfying the USMS’s hearing
standards and thereby disqualified him from service.
Audiologist Andrea McDowell specifically reported that Cochran’s
“test results revealed a moderate sloping to severe
sensorineural hearing loss bilaterally.” J.A. 310. For further
testing, Cochran was referred to Dr. Mark Winter, an
otolaryngologist, who reported to the USMS in February 1993 that
Cochran suffered a more “severe level of hearing loss” in the
high frequencies, although his “binaural hearing loss would be
less than 10%” overall “due to the better hearing in the lower
frequencies.” J.A. 317. Cochran’s high frequency hearing loss
was “consistent with his history of noise exposure,” and
manifested itself in an inability to “hear an ambulance easily
while driving to the scene of an investigation” and a difficulty
hearing “people in background noise.” J.A. 316.
3
When Cochran was later asked in a sworn deposition whether
his “hearing trouble [was] giving [him] any problems on a day-
to-day basis” as of his 1992 hearing examinations, he answered
“[a]bsolutely not.” J.A. 254. He testified that he had
previously been fitted for hearing aids in 1989, but did not
wear them. Cochran gave contradictory explanations for not
wearing his hearing aids, saying at one point that it was
because he “didn’t need them” and “didn’t have any problems
doing [his] job,” J.A. 98, but also saying that they were not
“effective,” J.A. 326.
On March 23, 1993, the USMS informed Cochran that his
hearing loss “present[ed] a significant risk” to him and others
in the work environment, and recommended he “contemplate
voluntary disability retirement.” J.A. 320. The Service
explained that if Cochran chose not to retire, it was “prepared
to propose [his] removal based on medical unfitness.” Id. On
April 5, 1993, Cochran advised the USMS that he had opted for
voluntary disability retirement. In his application for
disability retirement, Cochran stated that his hearing loss
prevented him from performing his duties as a DUSM and that
continued exposure to loud noise would put him at risk of losing
“all of [his] hearing.” J.A. 32. His disability retirement was
granted and became effective June 1993.
4
In December 1994, more than a year after Cochran’s
disability retirement took effect, the USMS Director announced
the agency’s contemplation of a change to the hearing standards
which would allow the use of hearing aids during DUSM medical
testing. In light of this proposed change, Cochran contacted
the USMS Director in a January 1995 letter requesting
reinstatement. The USMS responded that the proposals to the
medical standards were still under review but that it would
consider Cochran’s request once the medical standards were
finalized.
Shortly thereafter, Cochran made an additional, verbal
request for reinstatement on the ground that his hearing had
recovered. Because the relevant regulations did not provide for
immediate reinstatement once an employee had been away from his
job for more than one year, the USMS construed this
communication as a request to be placed on the Reemployment
Priority List (“RPL”) via the Department of Justice’s Priority
Placement and Referral System (“PPRS”). 1 The agency responded to
Cochran in a letter explaining that, in order to place him on
the list, it needed “a written request,” “an Office of Workers’
1
As of 1995, the relevant regulation provided that “A[n] .
. . employee . . . separated because of a compensable injury or
disability . . . who has fully recovered more than 1 year after
compensation began is entitled to be placed on the RPL.” 5
C.F.R. § 330.204(a) (1995).
5
Compensation Programs [OWCP] report or other evidence showing
[Cochran was] recovered,” and a completed “registration form for
the PPRS.” J.A. 374. The record “provides no indication that
[Cochran] completed any of the paperwork necessary for
reinstatement.” J.A. 125. Instead, in September 1995, Cochran
filed a formal administrative complaint with the USMS’s equal
employment officer alleging discriminatory discharge and seeking
immediate reinstatement. He explained that placement on the RPL
was “not what [he] want[ed].” J.A. 383.
B.
Cochran’s case followed a lengthy administrative path that
we summarized in our prior decision, Cochran v. Holder, 564 F.3d
318, 320 (4th Cir. 2009). After being denied administrative
relief, Cochran filed a civil complaint in federal court. He
alleged two counts of employment discrimination under the RA.
First, he claimed that his voluntary retirement in 1993
constituted a constructive discharge because the USMS terminated
him “solely because of his disability and/or perceived
disability,” and that the USMS failed to provide him with a
reasonable accommodation in lieu of retirement. J.A. 21-22.
Second, Cochran claimed that the USMS impermissibly “refused”
his requests for reinstatement in 1995, and that its refusal to
immediately reemploy him either because its policy regarding
6
hearing aids was changing or because his hearing had recovered,
also constituted discrimination. J.A. 22-23.
The USMS responded to the filing of Cochran’s civil
complaint with a motion to dismiss the complaint as untimely,
which the district court granted. Cochran, 564 F.3d at 320. We
reversed and remanded for further proceedings. Id. at 325.
Following additional discovery on remand, the district
court granted summary judgment to the USMS, concluding that
Cochran was not “disabled” within the meaning of the RA. J.A.
39. The court specifically found that Cochran was not
substantially limited in the major life activities of hearing or
working, that there was no record of his disability, and that he
was not regarded as disabled by the USMS. The court also
concluded that Cochran was not a “qualified individual” for the
position of a DUSM, and that he was not eligible for
reinstatement. J.A. 45-46, 54.
Cochran moved for reconsideration on the basis of newly
discovered evidence. The district court, construing the motion
as one for relief from the judgment under Fed. R. Civ. P. 60(b)
so as to render it timely, denied the motion on the ground that
Cochran had failed to establish the existence of “extraordinary
7
circumstances” warranting such relief. J.A. 57, 67. This
appeal followed. 2
II.
On appeal, Cochran first disputes the district court’s
determination that he was not “disabled” under the RA in 1993 or
1995 and that his claims of discrimination therefore failed. We
review the district court’s grant of summary judgment de novo,
viewing the facts in the light most favorable to Cochran, and
drawing all reasonable inferences in his favor. See Lettieri v.
Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007). Summary
judgment is appropriate if the record shows “there is no genuine
2
The government argues that the bulk of this appeal is not
properly before us because the district court abused its
discretion in finding that Cochran demonstrated the “excusable
neglect” necessary to extend the deadline for filing a notice of
appeal under Fed. R. App. P. 4(a)(5). Cochran responds that the
government is precluded from advancing its argument because it
failed to file a cross appeal, which is required for an appellee
to argue for the reversal of a motion to extend the deadline to
file an appeal. Assuming, without deciding, that the
government’s claim is properly before us, we nevertheless find
it unavailing. We review the district court’s grant of a filing
extension for abuse of discretion. Thompson v. E.I. DuPont de
Nemours & Co., Inc., 76 F.3d 530, 532 (4th Cir. 1996). Under
this deferential standard, we find that the district court’s
determination that excusable neglect existed in this case is
supportable. In particular, the record reflects that Cochran’s
attorney suffered a debilitating condition requiring major
surgery that left her unable to work during the time the notice
of appeal should have been filed. See Plaintiff’s Motion for
Extension of Time to File Notice of Appeal, 06-cv-1328, Doc. No.
81 (E.D. Va. April 12, 2010).
8
dispute as to any material fact and that the [USMS] is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A.
We begin by addressing Cochran’s claim that the USMS
discriminated against him with respect to his voluntary
retirement in 1993. To establish a prima facie case, a
plaintiff must first show he was “an individual with a
disability under the RA.” 3 Id. at 269; see also Pollard v.
High’s of Balt., Inc., 281 F.3d 462, 467 (4th Cir. 2002) (noting
that the plaintiff bears the burden of demonstrating his
disability). The standards used to determine whether an
employer has discriminated under the RA are the same standards
applied under the Americans with Disabilities Act of 1990
(“ADA”). Hooven-Lewis, 249 F.3d at 268; see also 29 C.F.R.
§ 1614.203(b). Under both the RA and the ADA, a plaintiff can
make the requisite showing of a disability in one of three ways:
(1) by demonstrating he has “a physical or mental impairment
that substantially limits one or more of [his] major life
3
A plaintiff may bring a claim under the RA either in the
form of a “failure to accommodate” claim or a “disparate
treatment” claim. Throughout these proceedings, Cochran has
attempted to allege both types of claims. For either claim,
however, the first step in our analysis is identical: the
plaintiff must establish that he was a qualified individual with
a “disability” within the meaning of the Act. Rhoads v.
F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001); Hooven-Lewis,
249 F.3d at 269.
9
activities,” (2) by revealing “a record of such an impairment,”
or (3) by proving he is “regarded as having such an impairment.”
29 C.F.R. § 1630.2(g)(1); see also id. § 1614.203(b).
As an initial matter, we address Cochran’s argument that
the standards announced in Toyota Motor Manufacturing v.
Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1991), for determining whether an individual
is “disabled” “should only have limited applicability to this
case.” Appellant’s Br. at 19. As Cochran’s briefing
emphasizes, Congress amended the ADA in 2008 to correct what it
viewed as an overly restrictive interpretation of the statute’s
terms that had been adopted by the Supreme Court in Toyota and
Sutton. See ADA Amendments Act of 2008, Pub. L. No. 110-325
(“ADAAA”). The ADAAA made it easier for a plaintiff to
demonstrate his disability under the RA. In light of these
changes, Cochran argues that we should “subordinate” the Toyota
and Sutton decisions to earlier court rulings that employ a more
lenient standard. Appellant’s Br. at 21.
In order to do as Cochran asks, we would need to find that
the ADAAA applies retroactively. While we have yet to rule on
this issue, all circuits to consider the question have found
that the ADAAA does not apply retroactively. See, e.g.,
Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164
(9th Cir. 2009) (holding that the ADAAA does not apply
10
retroactively and collecting cases from the D.C., Fifth, Sixth,
and Seventh Circuits reaching the same conclusion). Indeed,
“absent clear congressional intent favoring such a result,” we
may not apply statutes retroactively. Landgraf v. USI Film
Prods., 511 U.S. 244, 280 (1994); see also Chambers v. Reno, 307
F.3d 284, 288 (4th Cir. 2002). The ADAAA provides that “[t]his
Act and the amendment made by this Act shall become effective on
January 1, 2009.” ADAAA § 8, 122 Stat. at 3559. Far from
demonstrating a clear retroactive intent, the amendment evinces
a prospective intent with its delayed effective date. We
therefore follow our sister circuits in concluding that the
ADAAA does not apply retroactively. This conclusion forecloses
Cochran’s argument that we should “subordinate” the holdings of
Toyota and Sutton to the amendments and apply a more relaxed
standard for purposes of this appeal.
1.
We turn now to whether Cochran has raised genuine issues of
fact as to whether he was actually disabled, regarded as
disabled, or had a record of disability at the time of his
retirement. We begin by considering if, under the first
disability formulation enumerated in the RA, Cochran was
actually disabled. We can find that he has met his burden on
this point only if he has adduced sufficient evidence to
demonstrate that when he applied for voluntary retirement in
11
1993, he had a “physical or mental impairment” that
“substantially limit[ed]” a “major life activit[y].” 29 C.F.R.
§ 1630.2(g)(1)(i).
The parties agree that hearing is a major life activity
contemplated by the Act, see id. at § 1630.2(i)(1)(i), and that
Cochran’s hearing was at least somewhat impaired. 4 They
disagree, however, as to whether his hearing loss “substantially
limited” his hearing. The Supreme Court clarified in Toyota
that “substantially” sets a high bar: “an individual must have
an impairment that prevents or severely restricts the individual
from” performing a major life activity. Toyota, 534 U.S. at 198
(emphasis added). Medical diagnoses alone cannot demonstrate
substantiality; instead, a plaintiff must offer “evidence that
the extent of the limitation caused by their impairment in terms
of their own experience is substantial.” Id. (internal
quotations and alterations omitted) (emphasis added).
The district court relied on three pieces of evidence to
find that Cochran could not make out a prima facie case that his
partial hearing loss severely restricted the major life activity
of hearing. First, when asked in a deposition about his own
4
The district court also analyzed whether Cochran’s hearing
loss might significantly limit the major life activity of
“working” and concluded that it did not. However, Cochran’s
briefing on appeal focuses only on the activity of “hearing.”
We therefore limit our analysis to the impairment of that
activity.
12
experience and whether his hearing was “giving [him] any
problems on a day-to-day basis” as of his 1992 hearing tests,
Cochran replied “[a]bsolutely not.” J.A. 254. Second, the
otolaryngologist’s February 1993 report found that Cochran’s
hearing loss was “less than 10%.” J.A. 317. Finally, although
Cochran had been fitted for hearing aids in 1989, he chose not
to wear them because he “didn’t need them.” J.A. 98.
On appeal, Cochran argues that the district court ignored
evidence in the record that created genuine issues of material
fact as to the degree of his hearing impairment and whether it
qualified as “substantially limiting.” For example, as we have
noted, Cochran also testified that he did not wear his hearing
aids because they were not “effective,” J.A. 326, and that the
type of digital hearing aid that corrected for his particular
type of hearing loss was unavailable in 1993 and not provided to
him until 1995. As to the substantiality of his hearing loss,
Cochran points to his disability application where he also
stated that his hearing loss “ha[d] created many problems at
work and at home.” J.A. 326. Cochran’s arguments, however,
misperceive the nature of summary judgment. He cannot create a
genuine issue of material fact by pointing to contradictions in
his own testimony. “[I]t is well established that ‘a genuine
issue of fact is not created where the only issue of fact is to
determine which of the two conflicting versions of a party’s
13
testimony is correct.’” Erwin v. United States, 591 F.3d 313,
325 n.7 (4th Cir. 2010) (quoting Halperin v. Abacus Tech. Corp.,
128 F.3d 191, 198 (4th Cir. 1997)) (alterations omitted); see
also S.P. v. City of Takoma Park, Md., 134 F.3d 260, 274 n. 12
(4th Cir. 1998) (disregarding affidavit of witness that
contradicted witness’s own prior sworn deposition testimony). 5
Cochran’s sworn statement, under oath and under penalty of
perjury, that at the time of his 1992 hearing examinations, his
hearing was “absolutely not” giving him trouble on a day-to-day
basis cannot be overcome by his later expositions in differing
circumstances.
2.
We next consider whether, under the second disability
formulation, Cochran has established he has a “record of such an
impairment.” 29 C.F.R. § 1630.2(g)(1)(ii). An individual has a
record of a disability “if the individual has a history
of . . . a mental or physical impairment that substantially
limits one or more major life activities.” Id. at 1630.2(k)(1).
Cochran’s argument under this category fails for the same reason
that his claim to an actual disability under the first
5
Cochran also seeks to rely on information contained in a
1995 letter from the Department of Labor’s Office of Workers’
Compensation Programs (“OWCP”). However, as Cochran’s counsel
acknowledged at oral argument, the district court denied the
admission of this letter into evidence, and it is therefore not
before us.
14
formulation does. While there are reports establishing that
Cochran no longer met the USMS hearing standards, those same
reports indicated that, despite a more “severe level of hearing
loss” in the high frequencies, Cochran’s “binaural hearing loss
would be less than 10%” overall “due to the better hearing in
the lower frequencies.” J.A. 317. This record does not
establish a history of impairment that “substantially limit[ed]”
Cochran’s hearing. 29 C.F.R. § 1630.2(k)(1).
3.
Finally, we address whether Cochran demonstrated that he
was “disabled” because the USMS “regarded” him as such. 29
C.F.R. § 1630.2(g)(1)(iii). Under this third formulation,
Cochran must show that the USMS “entertain[ed] misperceptions
about [him]” by believing he had a “substantially limiting
impairment” that he did not in fact have or that was not “so
limiting.” Sutton, 527 U.S. at 489. Simply believing Cochran
had an impairment is not enough under this inquiry. Rather,
Cochran must prove that the USMS believed his hearing condition
“substantially limit[ed] a major life activity.” Id.
In attempts to meet this burden, Cochran argues that even
if we find as a matter of law that he was not actually disabled
under the RA as of 1993, his employer believed that he was. He
points to a 2000 agency decision issued by the Department of
Justice’s Complaint Adjudication Office which states that the
15
“record supports the conclusion that [Cochran] was an individual
with a disability.” J.A. 129. However, the decision also
explained that “this is not the only possible conclusion” given
the intervening Supreme Court precedent establishing a more
stringent definition of “disability.” Id. at n.6.
Consequently, the decision “assume[d],” without deciding, that
Cochran was an individual with a disability, and proceeded to
deny Cochran’s claim on other grounds. Id. Such evidence
simply does not establish that the USMS “regarded” Cochran as
disabled within the meaning of the RA.
In sum, Cochran has failed to demonstrate that, at the
point he opted for voluntary retirement in 1993, he was a
disabled individual under any of the three formulations
articulated in the RA. We need go no further to affirm the
district court’s grant of summary judgment to the USMS with
respect to Cochran’s first claim of discrimination.
B.
Cochran’s second claim of discrimination involves his
requests for reinstatement in 1995. As with the first claim, in
order to survive summary judgment on this count, Cochran must
first prove he is a qualified individual with a “disability”
under the meaning of the RA. Hooven-Lewis, 249 F.3d at 269.
Whereas we earlier applied the analysis to Cochran at the time
16
he opted for voluntary retirement, here we apply it to him at
the time he requested reinstatement.
Cochran was not actually “disabled” when he sought
reinstatement to the USMS in 1995. In a letter to Joseph Moy,
USMS Chief of the Retirement and Benefits Branch, Cochran wrote
I now have new hearing aids as of the first part of
February 1995. According to the test by the
audiologist, without hearing aids my hearing is within
the acceptable level of the standards I was hired
under. With hearing aids it is well above the
standards. . . . All of this amounts to the following
request[] . . . [t]o immediately have my job
reinstated.
J.A. 203. To the extent Cochran requested reinstatement because
the USMS had changed its policy to allow for the use of hearing
aids during testing, his own account demonstrates that he was
not disabled because the hearing aids he used corrected for any
hearing deficiency. As the Supreme Court explained in Sutton,
for purposes of determining if an individual is “disabled” under
the RA, we consider whether “a person is taking measures to
correct for, or mitigate, a physical or mental impairment.” 527
U.S. at 482 (finding that petitioners were not “disabled” under
the ADA, because the corrective measures actually taken by them
corrected their vision to “20/20 or better”) (emphasis added). 6
6
Because Cochran testified that he did not begin using
hearing aids until after his voluntary disability took effect,
we only consider the impact of that corrective measure on his
second claim involving reinstatement in 1995, when he was
(Continued)
17
Inasmuch as Cochran requested reinstatement because he had
recovered his hearing sufficiently to meet the hearing standards
without the use of hearing aids, his own claims show he suffered
no “impairment,” let alone a substantial one. Either way,
Cochran has only presented evidence that his condition improved
between 1993 and 1995. If he was not actually disabled in 1993,
then he certainly could not have been actually disabled in 1995.
Cochran has introduced no evidence to suggest that he had a
record of disability in 1995 or that the agency regarded him as
disabled. 7 His failure to prove a “disability” under the RA also
forecloses his second claim of discrimination.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
actually using hearing aids. Sutton, 527 at 482 (considering
“the effects of those measures” actually taken by the
petitioners).
7
In fact, Cochran attempted (unsuccessfully) to introduce
into evidence a letter from the OWCP that purported to show that
his employer regarded him as recovered and without the need for
hearing correction. See J.A. 247-250.
18
Phillip Cochran v. Eric Holder, Jr.
Court: Court of Appeals for the Fourth Circuit
Date filed: 2011-06-21
Citations: 436 F. App'x 227
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