Stephanie Waggel v. George Washington University

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2019 Decided May 8, 2020

No. 18-7181

STEPHANIE WAGGEL,
APPELLANT

v.

GEORGE WASHINGTON UNIVERSITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01412)

Peter K. Tompa argued the cause for appellant. With him
on the briefs was Jason H. Ehrenberg.

Nicholas S. McConnell argued the cause for appellee.
With him on the brief was James N. Markels.

Before: ROGERS, GARLAND and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: Stephanie Waggel underwent
treatment for cancer while working as a psychiatry resident at
the George Washington University Hospital. Less than a year

2

later, the University terminated Waggel based on documented
instances of unprofessionalism and deficient performance.
Waggel alleges the University violated the Americans with
Disabilities Act (“ADA”) by failing to provide a reasonable
accommodation and discriminating against her because of her
cancer. Waggel further alleges the University retaliated against
her and interfered with her rights under the Family and Medical
Leave Act (“FMLA”). The district court granted summary
judgment for the University on all claims. Because Waggel
failed to request an accommodation under the ADA and failed
to rebut the University’s legitimate justifications for its actions,
we affirm.

I.

Stephanie Waggel joined the George Washington
University Hospital for a four-year psychiatry residency
program in July 2014. The residency program involves both
clinical rotations under the supervision of attending physicians
and academic coursework. To advance through each successive
year, a resident must satisfy the program’s minimum
competency and training requirements. Residents receive
intensive feedback from their supervising physicians
channeled through the residency program’s director, Dr. Lisa
Catapano. From the beginning, Waggel’s supervisors reported
concerns about her allegedly unprofessional conduct,
resistance to feedback, and lack of clinical knowledge.

In April 2015, Waggel was diagnosed with a renal cyst
later confirmed to be stage one kidney cancer. Waggel suffered
significant stress and anxiety from the diagnosis as well as
physical discomfort related to the cyst. During this period,
Waggel’s supervising physicians reported a decline in her
performance and in one instance sent Waggel home from a shift
after determining she was unfit to deliver patient care. After

3

this incident, Waggel conferred with Dr. Catapano and
a University administrator about medical leave. Although the
University offered Waggel the option of seeking leave as an
ADA accommodation, Waggel ultimately took ordinary
vacation days to travel within the United States and abroad. In
July 2015, Waggel underwent an inpatient surgery that
successfully removed the cyst. Although the University
granted two weeks of medical leave, Waggel found it
extremely difficult to arrange time off for surgery
notwithstanding the seriousness of her condition. Further,
despite approval for two weeks of light duty upon returning to
work, Waggel worked very long hours during this time,
including shifts lasting more than twenty hours. For the
remainder of her time in the program, Waggel needed to attend
medical appointments for follow-up cancer screenings,
treatment related to lingering physical symptoms, and therapy
for ongoing anxiety related to her diagnosis. Waggel often
struggled to secure time off and had to deal with supervisors
who sometimes kept her late when she had appointments and
told her to plan the appointments around the program’s
schedule.

In her second year in the residency program, Waggel’s
behavior at work prompted several complaints by supervising
physicians to Dr. Catapano. In one incident, Waggel allegedly
exhibited dangerous patterns of dealing with psychiatric
patients by using methods of restraint contrary to University
policy. In several others, Waggel allegedly missed shifts or
failed to appropriately communicate patient status to other
physicians. Dr. Catapano interceded to notify Waggel of these
deficiencies and develop a plan to remedy shortfalls in training
and performance. Waggel attributed the complaints in large
part to her illness and believed the University was mistreating
her because of her medical needs.

4

In October 2015, Waggel’s relationship with Dr. Catapano
and other program leaders deteriorated further when she
encountered difficulties scheduling leave for a mandatory
licensing exam. Although initially approved for a four-day
administrative leave, the University revised Waggel’s leave to
two days for the stated purpose of maintaining uniform
treatment with other residents. The program offered Waggel
the option of taking additional personal leave, but also noted
that further absences might cause her to work fewer than the
minimum number of days required to complete the rotation.
After an increasingly hostile email exchange with her
supervisors, Waggel announced the following day that she
would be taking two weeks of FMLA leave from program
responsibilities.

In November 2015, Waggel was placed on forced
administrative leave by Dr. Jeffrey Berger, the University’s
Associate Dean for Graduate Medical Education, pending
investigation into allegations about Waggel’s behavior.
According to several police and community reports, Waggel
appeared publicly intoxicated at an apartment complex near the
hospital, engaged in loud and disruptive conduct, and used
abusive language toward observers. The University initially
viewed these reports as raising concerns about Waggel’s
mental health and suitability for patient care. After discussing
the issue with Waggel, however, Dean Berger accepted
Waggel’s explanation that the incident arose from disputes
with a neighbor rather than a substance abuse problem. Several
weeks later, the University determined Waggel was ineligible
for promotion to her third year in the program based on letters
of deficiency she had accumulated over the previous year. In
addition to describing instances of unprofessional conduct
noted above, the letters indicated Waggel had failed two
required courses and neglected to complete other
administrative requirements.

5

Throughout Spring 2016, Waggel engaged in a series of
discussions with Dr. Catapano and Dean Berger about
remedying her performance, getting back on track to complete
the program, and the possibility of transferring to a new
residency program. According to the University, Waggel
declined to follow up on offers to remedy identified
deficiencies, threatened to bring legal action, and, in one
instance, attempted to attend a class for which she lacked
eligibility by misrepresenting her status to the instructor.
According to Waggel, the University sought to burden her
career by making it difficult to remedy her deficiencies,
declining to provide specific feedback, and refusing to help her
transfer to another residency program. Waggel took a second
round of FMLA leave, this time as intermittent leave, to attend
medical appointments in March.

In April 2016, a committee of supervising faculty voted
unanimously to recommend dismissal, citing Waggel’s letters
of deficiency, a notice of unprofessional conduct related to her
eligibility misrepresentation, and additional concerns about her
suitability for patient care. This decision was adopted by
Dr. Catapano, sustained on independent review, and affirmed
on appeal by a senior University official.

After properly exhausting administrative remedies before
the Equal Employment Opportunity Commission, Waggel filed
suit against the University for failure to accommodate her
disability and other disability discrimination under Title I of the
ADA, 42 U.S.C. § 12111 et seq., as well as for retaliating
against and interfering with her exercise of rights under the
FMLA, 29 U.S.C. § 2601 et seq.
1
The district court denied

1
Waggel also pled her ADA claims under the District of Columbia
Human Rights Act (“DCHRA”), D.C. CODE § 2–1401.01 et seq., and

6

Waggel’s motion for summary judgment on the ADA claims
and granted summary judgment to the University on all claims.
Waggel v. George Washington Univ., No. 16-cv-1412, 2018
WL 5886653 (D.D.C. Nov. 9, 2018); Waggel v. George
Washington Univ., No. 16-cv-1412, 2018 WL 5893346
(D.D.C. Nov. 9, 2018).

This timely appeal followed. We review grants of
summary judgment de novo, considering the evidence in the
light most favorable to the non-prevailing party under the same
standards as the district court. See Stewart v. St. Elizabeths
Hosp., 589 F.3d 1305, 1307 (D.C. Cir. 2010). In doing so, we
do not “weigh the evidence and determine the truth of the
matter” but instead “determine whether there is a genuine issue
for trial.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

II.

Title I of the Americans with Disabilities Act requires
employers to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability,” 42 U.S.C. § 12112(b)(5)(A), and
makes it unlawful to “discriminate against a qualified
individual on the basis of disability,” id. § 12112(a). Waggel
claims that the University failed to accommodate her disability,

her FMLA claims under the District of Columbia Family and
Medical Leave Act (“DCFMLA”), id. § 32–501 et seq. Neither
Waggel nor the district court noted material differences between the
federal and District of Columbia statutes, and we therefore treat the
analyses as identical for our purposes. See Giles v. Transit Emps.
Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015) (collapsing ADA
and DCHRA inquiries); Alford v. Providence Hosp., 561 F. App’x.
13, 14 (D.C. Cir. 2014) (unpublished judgment) (equating FMLA
and DCFMLA inquiries).

7

namely renal cancer, and furthermore discriminated against her
because of this disability. The University responds that Waggel
never made a request for accommodation under the ADA and
asserts legitimate, non-discriminatory reasons for each alleged
adverse employment action.

A.

We turn first to Waggel’s accommodation claim. To
prevail on a reasonable accommodation claim, a plaintiff must
establish by a preponderance of the evidence that “(1) she was
a qualified individual with a disability, (2) the [employer] had
notice of her disability and (3) the [employer] denied her
request for a reasonable accommodation.” Ward v. McDonald,
762 F.3d 24, 31 (D.C. Cir. 2014). We assume without deciding,
as did the district court, that Waggel’s renal cancer and the
University’s awareness of her diagnosis satisfy Ward’s first
and second prongs. See Waggel, 2018 WL 5886653, at *3;
Waggel, 2018 WL 5893346, at *6. Thus, Waggel’s claim turns
on the third prong, which requires her to demonstrate both that
she requested a reasonable accommodation and that the request
was denied by the University. See Flemmings v. Howard Univ.,
198 F.3d 857, 861 (D.C. Cir. 1999) (“An underlying
assumption of any reasonable accommodation claim is that the
plaintiff-employee has requested an accommodation which the
defendant-employer has denied.”).

Waggel concedes that she never expressly requested an
ADA accommodation through the University’s Office of Equal
Employment Opportunity (“OEEO”). The OEEO processes
ADA and FMLA requests confidentially and without
interference from an employee’s direct supervisors. Medical
residents receive notice of the OEEO process in the resident
manual, which details the ADA’s protections and lists contact
information for the OEEO. Further, after Waggel discussed

8

medical leave options with Dr. Catapano in May 2015, a leave
administrator followed up by email to notify Waggel of FMLA
eligibility requirements and to encourage her to contact the
OEEO “[i]f you believe you are a qualified individual with
a disability and would like to request a reasonable
accommodation (such as medical leave) under the Americans
with Disabilities Act.” Email from Kimberly Vanlewen, Leave
of Absence Program Administrator, to Dr. Stephanie Waggel
(May 18, 2015). The email further stated that “ADA leave
would provide similar job protections as FMLA so it is
recommended that you apply.” Id. Although Waggel visited the
OEEO in September 2015, the record contains no evidence she
sought assistance from OEEO staff pertaining to an ADA
accommodation or submitted forms to initiate the University’s
accommodation process. Waggel inquired only about “policies
to protect residents who needed time off for medical leave,”
and OEEO staff responded reasonably by providing
information about FMLA leave. Decl. of Dr. Stephanie Waggel
¶ 98 (Feb. 1, 2018) (“Waggel Decl.”).

Waggel argues her individual requests for time off to
attend medical appointments amounted to a request for
accommodation under the ADA notwithstanding her failure to
ask for an accommodation. In Flemmings, however, we held
that a request for a medical leave of absence standing alone was
insufficient to make out a request for accommodation. See 198
F.3d at 861–62. Similarly, in Chenari v. George Washington
University, we “doubt[ed]” that, notwithstanding the plaintiff’s
concession he never utilized the University’s formal process
for requesting ADA accommodation, his repeated notifications
to the University of his ADHD made his “need for an
accommodation ... so apparent that the defendant must [have]
offer[ed] one.” 847 F.3d 740, 748 (D.C. Cir. 2017).

9

Relatedly, Waggel also claims that the “obvious
problems” associated with her cancer diagnosis required the
University to offer an accommodation in the absence of a valid
request. Although we have assumed that the University had
notice of her disability, Waggel argues that the problems
arising from her disability—scheduling difficulties, serious
anxiety, and perceived unprofessional conduct, for example—
obligated the University to offer an accommodation. To be
sure, in Chenari we recognized that “there may well be cases
where the plaintiff’s need for an accommodation is so apparent
that the defendant must offer one regardless of whether the
plaintiff requested it.” Id. (citing Pierce v. District of
Columbia, 128 F. Supp. 3d 250, 269–70 (D.D.C. 2015)). But
this is not such a case. Notice of a disability does not ordinarily
satisfy the ADA’s request requirement, which performs the
independent function of informing an employer of the
limitations imposed by a disability and the nature of the
accommodation needed to remedy those limitations. See, e.g.,
Windham v. Harris Cty., 875 F.3d 229, 238 (5th Cir. 2017)
(“[K]nowledge of a disability is different from knowledge of
the resulting limitation. And it certainly is different from
knowledge of the necessary accommodation.”). Here, the
connection between Waggel’s disability and her performance
difficulties was not obvious. As noted above, “[a]n underlying
assumption of any reasonable accommodation claim is that the
plaintiff-employee has requested an accommodation which the
defendant-employer has denied.” Flemmings, 198 F.3d at 861.

Finally, we reject Waggel’s argument that her requests for
FMLA leave should have been construed as requests for an
ADA accommodation. Waggel cites no provision in the text of
either statute that contemplates such an equivalency, and the
structure of the statutes are fundamentally different. The
FMLA guarantees leave to “eligible employee[s]” who have
worked at their place of employment for a minimum length of

10

time. 29 U.S.C. §§ 2611(2), 2612(a)(1). Moreover, under the
FMLA, a person may take leave to assist a family member. See
id. § 2612(a)(1)(A)–(C), (E). By contrast, Title I of the ADA
applies to “qualified individual[s]” with disabilities. 42 U.S.C.
§§ 12111(8), 12112(a). The scope of entitlements under the
ADA includes a range of reasonable accommodations while the
FMLA authorizes only leave. Compare id. §§ 12111(9),
12112(b)(5)(A), with 29 U.S.C. § 2612(a)(1). The ADA, but
not the FMLA, requires exhaustion of administrative remedies
before filing suit. See 42 U.S.C. §§ 2000e-5(f)(1), 12117(a).
Finally, the Department of Labor’s implementing regulations
emphasize claims under each statute must be analyzed
separately while acknowledging accommodations may
sometimes overlap. See 29 C.F.R. § 825.702(b) (noting the
“ADA’s ‘disability’ and FMLA’s ‘serious health condition’ are
different concepts, and must be analyzed separately”); id.
§ 825.702(c)(2) (comparing ADA and FMLA entitlements).
2

Waggel chose to seek leave under the FMLA rather than
request accommodation under the ADA. The ADA respects
individual choices regarding whether and what type of
accommodation to seek. See 42 U.S.C. § 12201(d) (“Nothing
in this chapter shall be construed to require an individual with
a disability to accept an accommodation, aid, service,
opportunity, or benefit which such individual chooses not to
accept.”). Here, Waggel concedes she did not seek an ADA

2
Waggel urges us to adopt the reasoning in Capps v. Mondelez
Global, LLC, 847 F.3d 144 (3d Cir. 2017), which she argues equates
FMLA and ADA requests. We read Capps more modestly as noting
that a request can trigger both the FMLA and the ADA through
language that independently satisfies the requirements of both
statutes. See id. at 156–57 (“[A] request for FMLA leave may
qualify, under certain circumstances, as a request for a reasonable
accommodation under the ADA.” (citing 29 C.F.R.
§ 825.702(c)(2))).

11

accommodation through established channels, and under the
circumstances this choice means no issues of material fact
remain as to her reasonable accommodation claim.

B.

We turn next to Waggel’s remaining ADA discrimination
claims. “[T]he two basic elements of a disability discrimination
claim are that (i) the plaintiff suffered an adverse employment
action (ii) because of the plaintiff’s disability.” Adeyemi v.
District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008).
When an employer asserts legitimate, nondiscriminatory
reasons for an adverse employment action, we ask “whether the
plaintiff produced sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason
was not the actual reason and that the employer intentionally
discriminated against the plaintiff on a prohibited basis.” Id. To
prevail on her discrimination claim, Waggel must point to
evidence tending to show the University’s justifications for one
or more adverse employment actions are pretextual.

The breadth and variety of discriminatory actions alleged
in Waggel’s complaint led the district court to analyze them
categorically. See Waggel, 2018 WL 5886653, at *8–11;
Waggel, 2018 WL 5893346, at *9–24. Waggel frames dozens
of actions taken by the University during her two years in the
program as circumstantial evidence of intentional
discrimination through decisions on promotion, termination,
job assignment, vacation time, training, and eligibility for
transfer to another program. The University explains each
decision by pointing to legitimate, non-discriminatory
rationales embedded in documented reports from supervisors,
letters of deficiency, and minutes from the meetings at which
program leaders determined Waggel’s status in the program.

12

Waggel fails to demonstrate the University took adverse
employment actions against her “because of” her disability.
Adeyemi, 525 F.3d at 1226. Take, for example, Waggel’s claim
that program leaders discriminated against her by reducing her
administrative leave allotment for the October 2015 licensing
exam. The University explains it reduced Waggel’s leave to
correct a clerical mistake: residents are allowed only two days
of administrative leave for the exam, but administrators had
mistakenly approved Waggel for four administrative days.
Waggel points to no direct or circumstantial evidence rebutting
the University’s explanation and offers no reason to link the
reduction in leave to her disability. The University here
articulated a legitimate interest in following its policies and
ensuring equal treatment of similarly situated employees.

Waggel was also unable to rebut the University’s
nondiscriminatory rationale for her termination. The faculty
committee voted unanimously to dismiss Waggel based on
many documented instances in which she fell short of the
program’s professional and academic requirements. This
suffices as “a legitimate, nondiscriminatory reason” for the
University’s action. Figueroa v. Pompeo, 923 F.3d 1078, 1087
(D.C. Cir. 2019). Moreover, the University also provided
Waggel with an independent review and appeals process before
terminating her employment. Although there was some
disagreement within the University regarding the extent to
which her cancer diagnosis should have been a mitigating
factor in the University’s decision, Waggel cites no evidence
capable of rebutting the University’s affirmative reasons
justifying termination.

In addition, Waggel fails to identify sufficient evidence
that Dean Berger used troubling police and community reports
about her behavior as a pretext to place her on forced
administrative leave in November 2015. Waggel’s evidence of

13

pretext is the allegation that Dr. Catapano told her over the
phone that the University disciplined her because she had taken
“too much sick leave,” a comment Waggel interpreted as
relating to her disability. Waggel Decl. ¶ 136. The district court
noted Dean Berger, not Dr. Catapano, was the decisionmaker
regarding forced leave, and concluded Dr. Catapano’s “stray
comment” was insufficient to raise a genuine issue of material
fact regarding pretext. Waggel, 2018 WL 5893346, at *28–30
(evaluating comment as possible evidence for Waggel’s FMLA
retaliation claims). Our cases recognize that stray remarks by
non-decisionmakers are not generally direct evidence of
discrimination. See Adeyemi, 525 F.3d at 1229 (discounting
comments made with respect to disabled employee by non-
decisionmaker). However, the “actions of a discriminatory
supervisor that feed into and causally influence the
decisionmaker’s ultimate determination” may establish
a discrimination claim if sufficiently influential in the ultimate
decision. Steele v. Mattis, 899 F.3d 943, 950 (D.C. Cir. 2018).
Here, Dean Berger consulted Dr. Catapano before making his
ultimate decision on forced administrative leave. See Decl. of
Dr. Lisa Catapano ¶¶ 572–83 (Jan. 2, 2018). But the “too much
sick leave” comment falls short of direct evidence of
discrimination because it does not establish bias without the
need for additional inference. Cf. Steele, 899 F.3d at 950–51.
As indirect evidence, the “too much sick leave” comment does
not establish bias sufficient to rebut the ample evidence that
Dean Berger placed Waggel on administrative leave for
nondiscriminatory reasons.

Waggel’s submission “boils down to the proposition that
discrimination plaintiffs should receive jury trials as a matter
of course.” Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1249
(D.C. Cir. 2011). “But that is not the way the law has
developed.” Id. The district court correctly awarded summary
judgment to the University because Waggel failed to identify

14

evidence allowing a reasonable jury to conclude her employer
discriminated against her because of her disability.

III.

Waggel asserts retaliation and interference claims under
the Family and Medical Leave Act, which guarantees leave to
covered employees for, among other purposes, “a serious
health condition that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C.
§ 2612(a)(1)(D). Employers may not “interfere with, restrain,
or deny the exercise” of FMLA rights, id. § 2615(a)(1), or
“discriminate against any individual for opposing any practice
made unlawful by this subchapter,” id. § 2615(a)(2). As
relevant here, a plaintiff may bring retaliation claims under
§ 2615(a)(1) by alleging an employer discriminated against her
for taking FMLA leave. Gordon v. U.S. Capitol Police, 778
F.3d 158, 161 (D.C. Cir. 2015) (citing Gleklen v. Democratic
Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367–68 (D.C.
Cir. 2000)). And, of course, a plaintiff may bring interference
claims under § 2615(a)(1) as well. Id. at 164 (citing McFadden
v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6
(D.C. Cir. 2010)).

A.

Waggel alleges the University retaliated against her for
taking medical leave in October 2015 and March 2016.
Although her complaint did not specify which provision of 29
U.S.C. § 2615(a) was allegedly violated, we understand her
allegations to arise under § 2615(a)(1) because her retaliation
theories relate primarily to the University’s reaction to her
decisions to take FMLA leave rather than her opposition to the

15

University’s leave policies.
3
We evaluate FMLA retaliation
claims under the McDonnell Douglas framework. See Gleklen,
199 F.3d at 1367. To establish a prima facie case of FMLA
retaliation, a plaintiff must show (1) the exercise of protected
FMLA activity; (2) an adverse employment decision; and (3)
a causal connection between the protected activity and the
adverse action. See id. at 1368. Employers may rebut a prima
facie case by putting forward evidence of a legitimate, non-
retaliatory reason for the adverse action. See id. The plaintiff
must identify evidence of pretext in order to overcome the
employer’s rebuttal and survive summary judgment. See id.
(citing Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289
(D.C. Cir. 1998) (en banc)).

Many of Waggel’s retaliation allegations fail to satisfy one
or more elements of the prima facie case. For example, Waggel
alleges the University caused her to miss an appointment with
her therapist in November 2015 by denying her additional time
off. But the record notes only that she “could not leave work,”
Waggel Decl. ¶ 136, and Waggel alleges no specific adverse
decision by the University or a causal connection between the
action and her earlier FMLA leave. Further, Waggel alleges the
University retaliated against her for appealing the faculty’s
decision that she repeat certain coursework. But this allegation,

3
The district court interpreted Waggel’s retaliation claims as arising
under 29 U.S.C. § 2615(a)(2), which requires a plaintiff demonstrate
she opposed an employer practice that violated the FMLA. See
Waggel, 2018 WL 5893346 at *25. Because we interpret her claims
as arising under § 2615(a)(1), we need not decide whether Waggel
“oppos[ed] any practice” to determine whether the district court
properly granted summary judgment on the retaliation claims. See
Gordon, 778 F.3d at 162 (“[W]e need not resolve the adequacy of
her claim under § 2615(a)(2) because [the plaintiff] also advances
her retaliation claim under § 2615(a)(1), which contains no
requirement that she ‘oppose any practice.’”).

16

too, fails to draw a causal connection between the alleged
retaliatory actions and her exercise of FMLA rights.

Another set of Waggel’s allegations plausibly state
a prima facie case but fail to rebut the University’s legitimate,
nonretaliatory explanations. See Gleklen, 199 F.3d at 1368
(affirming summary judgment where plaintiff “fell far short of
rebutting the [employer’s] more plausible explanation for its
actions”). For instance, Waggel claims the temporal proximity
between her October 2015 FMLA leave and the University’s
decision to make her repeat certain coursework demonstrates
the decision was retaliatory. As we have noted before, timing
can help to establish the causal element of a prima facie case
of retaliation. See id. (“Temporal proximity is often found
sufficient to establish the requisite causal connection for such
claims.”). But the University explained its decision by pointing
to Waggel’s poor exam performance and distracting in-class
behavior. While timing can establish a prima facie case of
retaliation, dislodging an employer’s nonretaliatory
explanation as pretextual at the third step of McDonnell
Douglas requires “positive evidence beyond mere proximity.”
Minter v. District of Columbia, 809 F.3d 66, 71–72 (D.C. Cir.
2015) (quoting Solomon v. Vilsack, 763 F.3d 1, 16 (D.C. Cir.
2014)).

On appeal, Waggel highlights one claim for which she
points to more than proximity to rebut the University’s
explanation. Reframing her November 2015 forced
administrative leave discrimination claim as an FMLA
retaliation claim, Waggel argues Dr. Catapano’s comment that
she had “taken too much sick leave” rebuts the University’s
explanation as pretextual. Waggel Decl. ¶ 136. But as discussed
above, this comment is not enough to overcome the
University’s justification and raise a genuine issue of material
fact. Thus, the district court was correct to find the University

17

entitled to summary judgment on Waggel’s FMLA retaliation
claims.

B.

Waggel also claims the University interfered with her
FMLA rights in violation of 29 U.S.C. § 2615(a)(1). To prevail
on an FMLA interference claim, a plaintiff must show (1)
employer conduct that reasonably tends to interfere with,
restrain, or deny the exercise of FMLA rights, and (2) prejudice
arising from the interference. See Gordon, 778 F.3d at 164–65;
McFadden, 611 F.3d at 7 (citing Ragsdale v. Wolverine World
Wide Inc., 535 U.S. 81, 89 (2002)).

Although Waggel raised several claims of interference
below, see Waggel, 2018 WL 5893346, at *33–35, she presses
only one on appeal: that the University discouraged her from
retaining an attorney to represent her interests. In support of
this allegation, Waggel cites an email from Dean Berger
stating: “Please do not reference your attorney going forward,
particularly to the people in your Department. It does not make
for a safe working environment. It is your choice to continue to
pursue this avenue.” Email from Dr. Jeffrey Berger, Associate
Dean for Graduate Medical Education, to Dr. Stephanie
Waggel (Nov. 19, 2015). Further, Waggel points to
a subsequent comment by Dean Berger during a meeting she
secretly recorded that “he could not treat me the same way as
others because I had legal representation.” Waggel Decl. ¶ 212.

As an initial matter, Waggel cites no authority suggesting
her retention of an attorney constituted protected FMLA
activity under these circumstances. The FMLA protects an
employee’s rights to take guaranteed leave, oppose or complain
about an employer practice made unlawful by the statute, and
participate in “legal proceedings or inquiries relating to an

18

employee’s rights.” 29 C.F.R. § 825.220(a). To fall under the
FMLA’s protection, Waggel must show she retained her
attorney to oppose or complain about unlawful activity,
namely, the University’s alleged retaliation for her FMLA
leave in October 2015. But the record shows Dean Berger’s
email was responding to Waggel’s statement that she had
retained an attorney to pursue the goal of “graduat[ing] on
time.” Email from Dr. Stephanie Waggel to Dr. Lisa Catapano,
Residency Training Program Director, and Dr. Jeffrey Berger,
Associate Dean for Graduate Medical Education (Nov. 18,
2015). Further, the transcript of Waggel’s recorded meeting
with Dean Berger shows the two were discussing the
University’s internal procedures and support systems with no
relation to FMLA leave or other protected activity. Tr.
Interview between Dr. Jeffrey Berger, Associate Dean for
Graduate Medical Education, and Dr. Stephanie Waggel 31–37
(Mar. 17, 2016).

Even if we were to assume her activity falls under the
protection of the FMLA, a reasonable employee could not be
discouraged from exercising FMLA rights by the innocuous
comments at issue here. Drawing all inferences in Waggel’s
favor, Dean Berger’s comments merely suggest something that
is both plausible and lawful: Waggel’s retention of an attorney
prompted the University to become more cautious in
communicating with her. Without more, an employer’s
statements mentioning the lawful consequences of initiating
litigation and asking an employee to refrain from threats do not
run afoul of the FMLA’s prohibition on interference.

Finally, Waggel fails to identify evidence of prejudice
arising “by reason of the violation” or “as a direct result of the
violation.” Ragsdale, 535 U.S. at 89 (quoting 29 U.S.C.
§ 2617(a)(1)(A)(i)(I)–(II)). Remedies for FMLA interference
claims are “tailored to the harm suffered.” Id. In Gordon, for

19

instance, we found a plaintiff adequately alleged prejudice in
the form of documented monetary losses and harm to future
career prospects. 778 F.3d at 166. In the absence of any similar
allegations of prejudice arising specifically from
Dean Berger’s comments, Waggel’s claim necessarily fails.
The University was entitled to summary judgment on Waggel’s
interference claims.
4

* * *

For the foregoing reasons, the district court’s grant of
summary judgment in favor of the University is affirmed.

So ordered.

4
Because the University’s summary judgment motion failed to cite
to the record as to Waggel’s FMLA claims, the district court
exercised its discretion to consider the motion based on the court’s
own review of the record under FED. R. CIV. P. 56(e)(3). Waggel,
2018 WL 5893346, at *27. Waggel argues the district court abused
its discretion by cherry picking evidence unfavorable to her case. We
disagree. While Rule 56(c) provides that the court “need consider
only the cited materials,” Rule 56(e)(3) grants district courts
discretion to go beyond facts cited by the moving party. There is no
abuse of discretion so long as the movant successfully shifted the
burden of production and the court views the evidence in the light
most favorable to the nonmoving party. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); cf. Winston & Strawn, LLP v. McLean,
843 F.3d 503, 507 (D.C. Cir. 2016) (emphasizing the district court’s
independent obligation to assure summary judgment is warranted
based on undisputed material facts).