Filed: Jun. 13, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1476 CHUCKWUDI PERRY, Plaintiff – Appellant, v. DAVID KAPPOS, Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant – Appellee, and GARY F. LOCKE, Secretary, United States Department of Commerce, United States Patent and Trademark Office, Agency, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Jame
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1476 CHUCKWUDI PERRY, Plaintiff – Appellant, v. DAVID KAPPOS, Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant – Appellee, and GARY F. LOCKE, Secretary, United States Department of Commerce, United States Patent and Trademark Office, Agency, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1476
CHUCKWUDI PERRY,
Plaintiff – Appellant,
v.
DAVID KAPPOS, Secretary of Commerce for Intellectual
Property and Director of the United States Patent and
Trademark Office,
Defendant – Appellee,
and
GARY F. LOCKE, Secretary, United States Department of
Commerce, United States Patent and Trademark Office,
Agency,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cv-00167-JCC-TCB)
Argued: May 17, 2012 Decided: June 13, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Floyd joined.
ARGUED: Stephen Z. Chertkof, HELLER, HURON, CHERTKOF, LERNER,
SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant. Julie
Ann Edelstein, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Douglas B. Huron, HELLER,
HURON, CHERTKOF & SALZMAN, Washington, D.C., for Appellant.
Neil H. MacBride, United States Attorney, R. Joseph Sher,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
The U.S. Patent & Trademark Office (“USPTO”) terminated the
employment of Chuckwudi Perry. Perry responded by filing suit,
alleging that the USPTO discharged him in contravention of the
Rehabilitation Act of 1973 and Title VII. The district court
granted summary judgment in favor of the USPTO. On appeal, we
conclude that Perry’s Rehabilitation Act claim fails because he
is unable to establish that he is disabled under the statute.
Perry’s Title VII claim similarly lacks merit, as Perry has not
shown a causal relation between his alleged protected conduct
and the termination of his employment. We therefore affirm the
judgment of the district court.
I.
A.
Perry suffers from vision problems. He has no vision in
his left eye and reduced vision in his right eye. Perry’s
ailments have caused a “lack of depth perception, frequent
sudden degradation of vision in [his] right eye, and inability
to distinguish subtle color changes.” J.A. 239. With the use
of corrective devices, however, Perry is able to perform
critical tasks. He has obtained a Maryland driver’s license and
even feels comfortable traversing certain routes at night,
provided they are familiar and well lit. Perry can moreover
3
“read efficiently” with the use of magnifying glasses and
straight-edge devices. Id. In the workplace, Perry reports
that the “cumulative effects” of his conditions “frequently
leave [him] fatigued and needing to take a break or rest before
continuing work.”
Id. Although Perry can perform an office job
that requires him to work primarily at a computer, his vision
problems render him “less efficient than able-bodied persons.”
Id. 240.
On January 22, 2007, Perry joined the USPTO as a patent
examiner. Despite his vision problems, Perry “was able to
perform the essential functions of his patent examining
position.”
Id. 258. Indeed, Perry was even able to drive
himself to and from the local Metro stop each workday. While
employed at the USPTO, Perry suffered complications with his
eyesight that required continuing medical treatment. He sought
a flexible schedule from the USPTO, allowing him to miss normal
work hours to tend to his medical needs and make up the lost
time at night or on the weekends. Perry claimed that none of
his supervisors responded to his requests in a meaningful
manner.
Soon after joining the USPTO, Perry became involved in a
dispute about his salary. On January 29, Perry emailed April
Irondi, a human-resources employee, to begin the process of
securing a pay advance. Irondi told Perry to stop by her office
4
when he had time to talk, and he visited Irondi’s office after
receiving her response. He claimed that Irondi was on the phone
when he arrived at her office. As he approached the door, Perry
asserted that Irondi told him to leave immediately and close the
door behind him. Irondi later complained to her supervisor
about the incident, alleging that Perry had verbally accosted
her. Jeffrey Pwu, Perry’s supervisor, learned about the
incident and confronted Perry. Perry, an African American,
believed that Irondi’s and Pwu’s actions were the result of
discrimination against him on the basis of race.
After the incident with Irondi and discovering that the
wrong salary grade and step had been entered in his file, Perry
contacted Bernice Nesbitt, another human-resources employee, to
remedy the problem. Nesbitt directed Perry to speak with
Irondi. Perry responded in a February 6 email that he had “had
problems with Ms. Irondi and [he did] not want to deal with her
any more [sic].” Id. 144. He also threatened to file an
administrative grievance if employees did not become more
solicitous of his requests and complaints.
About a week later, Perry contacted the USPTO’s Office of
Civil Rights (“OCR”) about the incident with Irondi. On
February 15, Lisa Dill, the Equal Employment Opportunity (“EEO”)
specialist at the USPTO, scheduled a meeting with Perry to
discuss his concerns about the pay-advance dispute. Perry met
5
with Dill and described his issues with Irondi and Pwu, alleging
that the actions of both were racially discriminatory. Perry
learned that the OCR would draft an informal complaint, after
the issuance of which he would have fifteen days to file a
formal complaint of employment discrimination.
Perry testified that he felt pressure from Pwu not to file
a formal complaint. According to Perry, Pwu began asking him
about the status of his complaint in late February or early
March. On the first occasion, Pwu asked Perry, “[W]hat’s going
on?” and Perry informed him that he was “trying to work through
the issues.” Id. 167. Pwu told Perry to keep him informed. In
a second encounter, Pwu stopped Perry in the hall and again
asked, “What’s going on?”
Id. Perry responded that “everything
was fine” because he feared being fired.
Id. He explained why
he thought Pwu was pressuring him not to file a formal
complaint:
It wasn’t so much what he said. It was what he did.
He was very--he was constantly wanting to talk with me
and get my--get my status or what was happening with
this. It wasn’t from a standpoint of wanting to help,
or at least that, because he really didn’t. It was
just from the standpoint of wanting to know what was
going on and whether or not I was going to file
formal.
Id. 176–77. Perry received his Notice of Right to File a Formal
Complaint on March 15, but he elected not to formalize his
grievances.
6
Citing Perry’s lackluster performance as a patent examiner,
Deborah Reynolds, the assistant to the director at the Patent
Training Academy, on May 14 filed a request for termination of
his employment. Jim Ng, director of the Patent Training
Academy, wrote to Perry on May 23 to inform him that he had been
discharged. Ng explained that Perry’s performance had not
“progressed at the expected rate,” that he had “routinely”
missed due dates and failed to complete assignments, and that
his work record “indicate[d] little or no potential for growth
and development as a career professional in the USPTO.” Id.
129.
B.
Perry responded to his termination by filing a second
informal complaint with the USPTO’s OCR, alleging that the USPTO
had discriminated against him on the basis of race and
disability. He subsequently filed a formal complaint of
employment discrimination--which repeated the charges made in
the second informal complaint--with the Equal Employment
Opportunity Commission (“EEOC”). An administrative law judge
dismissed Perry’s complaint, and the EEOC affirmed.
Perry then filed this action in the U.S. District Court for
the Eastern District of Virginia, raising two claims against
David Kappos, the director of the USPTO. First, Perry alleged
7
that the USPTO violated the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq., by refusing to grant him reasonable
accommodations and intentionally discriminating against him on
the basis of his disability--i.e., monocular vision that
impaired his ability to perform the major life activities of
seeing and working. Second, Perry alleged that the USPTO
discharged him in contravention of the antiretaliation provision
of Title VII, 42 U.S.C. § 2000e-3(a). He claimed that the USPTO
terminated his employment as retaliation for filing an informal
complaint of discrimination.
The district court granted Kappos’s motion for summary
judgment. The court first held that Perry was not “disabled”
pursuant to the Rehabilitation Act, foreclosing relief on that
claim. As for the Title VII claim, the court found that Perry’s
filing an informal complaint was mere “opposition” activity
under the statute. Because Perry had failed to demonstrate that
he reasonably believed that the employment practice he opposed
was unlawful, the court found this claim meritless.
This appeal followed.
II.
We review de novo the district court’s grant of summary
judgment. EEOC v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir.
2011). Summary judgment is appropriate where the moving party
8
“shows that there is no genuine dispute as to any material fact”
and that it is “entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). At the summary judgment stage,
the nonmoving party must come forward with more than “ ‘mere
speculation or the building of one inference upon another’ ” to
resist dismissal of the action. Othentec Ltd. v. Phelan,
526
F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy,
769 F.2d
213, 214 (4th Cir. 1985)); see also Francis v. Booz, Allen &
Hamilton, Inc.,
452 F.3d 299, 308 (4th Cir. 2006) (“Mere
unsupported speculation is not sufficient to defeat a summary
judgment motion if the undisputed evidence indicates that the
other party should win as a matter of law.”).
III.
Perry first challenges the district court’s holding that he
does not suffer from a “disability” under the Rehabilitation
Act. He argues that his monocularity “substantially limits” the
9
major life activity of seeing. 1 Because Perry’s admissions
reveal that he is able to function adequately with the use of
corrective devices, he has not established disability under the
Rehabilitation Act. His claim on that score consequently fails.
As a threshold matter, a plaintiff seeking relief pursuant
to the Rehabilitation Act 2 for discrimination or failure to
accommodate must establish disability. Edmonson v. Potter, 118
F. App’x 726, 728 (4th Cir. 2004). To successfully show
disability, a plaintiff must prove “(1) that he has a physical
or mental impairment, (2) that this impairment implicates at
least one major life activity, and (3) that the limitation is
substantial.” Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d
249, 254 (4th Cir. 2006). The USPTO does not dispute that Perry
has a physical impairment that implicates the major life
activity of seeing. Our analysis thus centers on the third
1
Perry at various times in the litigation has referenced a
limitation on the major life activities of working and reading.
On appeal, however, he has abandoned the argument with regard to
working. See Appellant’s Br. 16 n.2. As for the major life
activity of reading, Perry raises this claim for the first time
on appeal and it is therefore waived. See United States v. Am.
Target Adver., Inc., 257 F.3d 348, 351 (4th Cir. 2001).
2
Given the overlapping standards, we rely on cases
construing the Americans with Disabilities Act when resolving
claims under the Rehabilitation Act. Hooven-Lewis v. Caldera,
249 F.3d 259, 268 (4th Cir. 2001).
10
prong--whether the limitation on Perry’s vision is
“substantial.” 3
The Rehabilitation Act’s substantiality requirement must
“be interpreted strictly to create a demanding standard.”
Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002).
Regulations accompanying the Act provide the following
definition of the phrase “substantially limits”:
(i) Unable to perform a major life activity that the
average person in the general population can
perform; or
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a particular major life activity as
compared to the condition, manner, or duration
under which the average person in the general
population can perform that same major life
activity.
29 C.F.R. § 1630.2(j)(1), amended by 76 Fed. Reg. 16,978 (2011).
Plaintiffs claiming disability are required to “have an
impairment that prevents or severely restricts [them] from doing
activities that are of central importance to most people’s daily
lives” to meet the substantiality standard. Toyota, 534 U.S. at
3
The ADA Amendments Act of 2008 superseded the Supreme
Court’s elucidation of the substantiality test in Toyota Motor
Mfg. v. Williams,
534 U.S. 184 (2002), and Sutton v. United Air
Lines, Inc.,
527 U.S. 471 (1999). But as the parties agree, the
ADA Amendments Act of 2008 does not apply retroactively to the
conduct giving rise to this dispute. See Cochran v. Holder, 436
F. App’x 227, 232 (4th Cir. 2011). Precedent construing the
prior version of the statute and regulations consequently
governs this case.
11
198. Mindful of the Supreme Court’s admonition to interpret the
regulations exactingly, we have explained that the
substantiality prong is intended to “preclude[] coverage of
impairments whose effects on a major life activity rise only to
the level of a mere difference with the abilities of an average
individual.” Heiko, 434 F.3d at 256 (internal quotations
omitted).
We must take into account mitigating measures when
performing the disability analysis. Sutton v. United Air Lines,
Inc., 527 U.S. 471, 482 (1999) (concluding that plaintiffs, who
had 20/200 or worse vision in their right eye and 20/400 vision
or worse in their left eye but had 20/20 vision with the aid of
corrective lenses, were not disabled for statutory purposes).
Indeed, it impermissibly strains the text of the Rehabilitation
Act to posit that “persons are to be evaluated in their
hypothetical uncorrected state.”
Id.
Evaluating disability under the Rehabilitation Act demands
an individualized, case-by-case analysis, in which plaintiffs
point to concrete evidence of their own experience with an
impairment.
Toyota, 534 U.S. at 198. Such a case-specific
inquiry is particularly important when an individual claims
disability based on monocularity, as the many variables
associated with the condition “are not the stuff of a per se
rule.” Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 566
12
(1999). “While monocularity inevitably leads to some loss of
horizontal field of vision and depth perception,” acknowledged
the Supreme Court, a plaintiff must present evidence showing
that his case of monocularity amounts to a substantial
limitation on seeing. Id. at 566–67. Though the Court
counseled that “people with monocular vision ‘ordinarily’ will
meet the Act’s definition of disability,” such individuals are
not excused from the obligation to “offer[] evidence that the
extent of the limitation in terms of their own experience . . .
is substantial.”
Id. at 567. We have held monocular
individuals to the burden articulated by the Court in
Albertson’s, concluding in one case that a monocular plaintiff
had not met the substantiality prong because he had overcome his
impairment with the use of corrective devices. Foore v. City of
Richmond, 6 F. App’x 148, 153 (4th Cir. 2001) (unpublished)
(explaining that the court was not presented with the “ordinary
case” referenced in Albertson’s).
Applying these principles to Perry’s impairment, we find
that he has not demonstrated that he is substantially limited in
the major life activity of seeing. We note initially that our
analysis focuses on Perry’s global ability to see; it is not
confined to his ability to read highly technical documents while
examining patent applications at the USPTO. Nor may we overlook
the ameliorative effect of corrective lenses and straight-edge
13
devices on Perry’s ability to see. Conducting the disability
inquiry at the proper level of generality and taking into
account mitigating measures, we conclude that Perry has failed
to establish that his monocularity “prevents or severely
restricts,” Toyota, 534 U.S. at 198, him from seeing.
The record shows that Perry, like the plaintiff in Foore,
“has overcome his impairment and is not substantially limited,”
6 F. App’x at 153. Indeed, through the use of mitigating
measures Perry was able to obtain a Maryland driver’s license.
He drove himself to the Metro stop each workday, and he could
even drive at night along familiar, well-lit routes. Perry was
moreover able to “read efficiently” with the use of “magnifying
glasses and straight-edge-type devices.” J.A. 239. He admitted
that his vision problems did not preclude him from “perform[ing]
the essential functions of his patent examining position.” Id.
258. Although Perry suffered fatigue when reading for long
periods of time, we do not deem this--when viewed in conjunction
with his ability to read efficiently, drive, and perform all the
functions required of him at the USPTO--sufficient to establish
that he was “severely restrict[ed],”
Toyota, 534 U.S. at 198
(emphasis added), from seeing.
To be sure, the Supreme Court has instructed that monocular
individuals “ordinarily” will meet the Rehabilitation Act’s
definition of disability. Albertson’s, 527 U.S. at 567. But we
14
find that Perry has not presented an “ordinary” case, as he has
not demonstrated “a disability by offering evidence that the
extent of the limitation in terms of [his] own experience . . .
is substantial,” id.; see also Foore, 6 F. App’x at 153.
Perry’s failure to prove disability in this case does not
inexorably doom possible future claims under the Rehabilitation
Act. Disability determinations are inherently fluid, changing
as a plaintiff’s underlying conditions improve or deteriorate.
Should Perry’s vision continue to decline and lead to greater
impediments in his daily life, he might be able to obtain relief
in a later action.
IV.
We turn next to Perry’s Title VII retaliation claim. The
parties and the district court focused on whether Perry’s filing
of an informal complaint qualified as participation or
opposition activity under the statute. But we need not resolve
that issue to decide this case. See Seremeth v. Bd. of Cnty.
Comm’rs, 673 F.3d 333, 337 n.2 (4th Cir. 2012) (recognizing that
a circuit court may affirm on grounds different from those on
which the district court relied). Because Perry has failed to
demonstrate a causal link between the filing of the complaint
and his discharge, we conclude that he has not raised an
actionable retaliation claim under Title VII.
15
Title VII’s antiretaliation provision forbids an employer
“to discriminate against any of [its] employees . . . because
[the employee] has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.”
42 U.S.C. § 2000e-3(a). Under the familiar burden-shifting
model, the plaintiff must establish a prima facie case of
retaliation. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405
(4th Cir. 2005). To meet this initial burden, the plaintiff
must satisfy a three-part test: (1) he engaged in a protected
activity; (2) his employer took adverse employment action
against him; and (3) there was a causal link between the two
events.
Id. at 405–06. Our analysis here is confined solely to
the third prong of the formulation.
Save for situations in which the adverse employment
decision follows the protected activity “very close[ly],” “mere
temporal proximity” between the two events is insufficient to
satisfy the causation element of the prima facie requirement.
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per
curiam) (internal quotations omitted). Although neither we nor
the Supreme Court have adopted a bright temporal line, we have
held that a three- or four-month lapse between the protected
activities and discharge was “too long to establish a causal
16
connection by temporal proximity alone,” Pascual v. Lowe’s Home
Ctrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006)
(unpublished). Even a mere ten-week separation between the
protected activity and termination “is sufficiently long so as
to weaken significantly the inference of causation between the
two events.” King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.
2003). Where the time between the events is too great to
establish causation based solely on temporal proximity, a
plaintiff must present “other relevant evidence . . . to
establish causation,” such as “continuing retaliatory conduct
and animus” in the intervening period. Lettieri v. Equant Inc.,
478 F.3d 640, 650 (4th Cir. 2007).
Perry may not rely on temporal proximity alone to establish
the requisite nexus of causation. Perry first contacted Dill,
the EEO specialist, on February 14, 2007 about filing an
informal complaint, more than three months before he was
discharged, on May 23. Such a three-month lapse is too long to
establish causation, without more. See Clark Cnty., 532 U.S. at
273–74 (collecting cases). Even assuming that Pwu did not learn
about the complaint until just prior to questioning Perry about
it, in late February or early March, roughly ten weeks or more
elapsed between that time and the USPTO’s decision to terminate
Perry’s employment. This separation between the two events is
“sufficiently long so as to weaken significantly the inference
17
of causation,” requiring Perry to present additional evidence of
retaliation. See King, 328 F.3d at 151 n.5.
This he has not done. In fact, Perry has presented no
evidence that any supervisors at the USPTO displayed animus
toward him or otherwise retaliated against him in the time
between his filing the informal complaint and the termination of
his employment. Perry testified that Pwu was
“uncharacteristically aggressive” about checking the status of
his complaint and twice asked him whether he had filed a formal
complaint. J.A. 176. Perry assigns nefarious motives to Pwu’s
questions about the complaint, attempting to convert Pwu’s
actions from those of a solicitous supervisor to those of a boss
scheming to thwart the exercise of federally recognized rights.
At the summary judgment stage, however, we will not allow the
nonmoving party to “ ‘create a genuine issue of material fact
through mere speculation or the building of one inference upon
another.’ ” Othentec, 526 F.3d at 140 (quoting
Beale, 769 F.2d
at 214). Because Perry has not come forward with any evidence
to establish causation beyond temporal proximity, we find that
he has not met his burden to establish a prima facie case of
retaliation.
18
V.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
19
