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Law Digest — U.S. Court of Appeals for the 4th Circuit — July 28, 2022

U.S. Court of Appeals for the 4th Circuit

Employment Discrimination; summary judgment: Where an employee “routinely” received above-average performance reviews, and received the highest rating possible in her last two reviews prior to her termination, there was a disputed issue of whether she was satisfying her employer’s legitimate business expectations at the time of her termination that made summary judgment inappropriate. Cowgill v. First Data Technologies Inc., No. 21-1543 (filed July 22, 2022).

Employment Discrimination

Summary judgment

BOTTOM LINE: Where an employee “routinely” received above-average performance reviews, and received the highest rating possible in her last two reviews prior to her termination, there was a disputed issue of whether she was satisfying her employer’s legitimate business expectations at the time of her termination that made summary judgment inappropriate.

CASE: Cowgill v. First Data Technologies Inc., No. 21-1543 (filed July 22, 2022) (Judges GREGORY, Thacker) (Judge Quattlebaum concurring in part and dissenting in part).

FACTS: Terri Cowgill sued her former employer for disability discrimination pursuant to the Americans with Disabilities Act, or ADA; failure-to-accommodate under the ADA and retaliation pursuant to the ADA and Family and Medical Leave Act, or FMLA.

First Data Technologies Inc. moved to dismiss Cowgill’s FMLA retaliation claim as time-barred, as well as Cowgill’s ADA retaliation claim because Cowgill failed to exhaust her administrative remedies. The district court granted First Data’s motion. First Data later moved for summary judgment on Cowgill’s disability discrimination and failure-to- accommodate claims, and the district court granted this motion too.

Cowgill now appeals the district court’s dismissal of the ADA retaliation claim, as well as the grant of summary judgment as to the disability discrimination and failure-to- accommodate claims.

LAW: To survive summary judgment on a failure-to-accommodate claim under the ADA, a plaintiff must show (i) she was disabled, (ii) the employer had notice of her disability, (iii) she could perform the essential functions of her position with a reasonable accommodation and (iv) the employer refused to make such accommodation.

Even assuming that Cowgill’s requests for intermittent FMLA leave constitutes a request for a reasonable accommodation under the ADA, First Data continued to approve Cowgill’s requested leave, Cowgill took the requested leave and thus First Data provided the requested accommodation. The district court’s grant of summary judgment on this claim is affirmed.

Next, to establish a prima facie case of disability discrimination, a plaintiff must show (i) she was disabled, (ii) she was discharged, (iii) she was fulfilling her employer’s legitimate expectations when she was discharged and (iv) the circumstances of her discharge raise a reasonable inference of unlawful discrimination. The district court concluded that Cowgill failed to meet First Data’s legitimate expectations. This court disagrees.

The record shows that Cowgill “routinely received above-average performance reviews,” and during her 2014 year-end and 2015 mid-year reviews, she received the highest rating possible—a “3.” Considering that Cowgill is entitled to the benefit of all inferences as the non-movant, there is a genuine dispute as to whether Cowgill met First Data’s legitimate expectations.

To satisfy the fourth element of a disability discrimination claim, a plaintiff must show that the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination. The district court found that Cowgill failed to establish this element, but the court concludes that a genuine issue of material fact exists here too.

First Data placed Cowgill on a 30-day improvement action plan, or IAP, three weeks after she used the FMLA leave granted to her. Later, she was placed on an IAP immediately after Cowgill confirmed that she was requesting recertification of FMLA leave. Moreover, during the meeting in which Annette Wood (HR) withdrew the January 2015 final written warning, Wood told Cowgill that she needed to “protect” her job. Taken together, this evidence is sufficient to create a jury question regarding the causation prong of Cowgill’s prima facia disability discrimination claim.

Because Cowgill established her prima facie case, the burden shifts to First Data to articulate a “legitimate, nondiscriminatory reason” for terminating her employment. First Data explained that Cowgill was fired following her second instance of call avoidance. Faced with this nondiscriminatory explanation for her termination, Cowgill bears the burden of establishing that First Data’s proffered explanation is pretext for disability discrimination.

Cowgill identifies as comparators the two employees First Data identified when submitting its motion for the EEOC to reconsider its reasonable cause determination. A reasonable factfinder could conclude that these comparators are similarly-situated to Cowgill in all relevant respects—specifically, both employees answered customer calls and were prohibited from engaging in call avoidance. There is a sufficient basis for a reasonable factfinder to conclude that Cowgill—despite being similarly-situated to the comparators—was treated differently. A reasonable factfinder could also be persuaded that First Data engaged in a disparate application of its progressive discipline when Cowgill was up for discussion.

Finally, considering Cowgill’s retaliation claim, the district court concluded it was not administratively exhausted. The court agrees. Cowgill’s charge does not allege that First Data retaliated against her because she requested a reasonable accommodation, and it does not otherwise allege facts that would have put First Data on notice that she was charging the company with retaliation.

Affirmed in part, vacated in part and remanded.

DISSENT/CONCUR: I agree with the majority’s decision concerning Cowgill’s failure to accommodate and retaliation claims. With respect to Cowgill’s disability discrimination claim, I disagree that Cowgill established that she was fulfilling First Data’s expectations when she was discharged.