Stacie D. Brockman v. JOHN SNOW, Secretary, United States Department of the Treasury

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1004
STACIE D. BROCKMAN,
Plaintiff - Appellant,
versus
JOHN SNOW, Secretary, United States Department
of the Treasury,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-04-
1823-8-RWT)
Argued: November 30, 2006 Decided: February 13, 2007
Before MOTZ and DUNCAN, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Motz and Judge Lee joined.
ARGUED: Nathaniel Baccus, III, Washington, D.C., for Appellant.
Ariana Wright Arnold, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Stacie D. Brockman (“Brockman”) appeals the district court’s
grant of summary judgment to the Internal Revenue Service (“IRS”)
on her discrimination and retaliation claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
Rehabilitation Act of 1973, 29 U.S.C. § 790, et seq. For the
reasons that follow, we affirm.
I.
As is required upon review of a grant of summary judgment, we
view all disputed facts in the light most favorable to Brockman and
draw all reasonable inferences in her favor. See Tinsley v. First
Union Nat’l Bank, 155 F.3d 435, 438 (4th Cir. 1998). In 2001,
Brockman was a program analyst in the IRS’s Equal Employment
Opportunity & Diversity (“EEOD”) office. On November 14, 2001,
Brockman and her co-worker Deborah Lewis (“Lewis”) met with their
“second-level supervisor,” Rich Morgante, the Director of
Management and Finance, to discuss the allegedly discriminatory
work environment created by JoAnn Innis (“Innis”), then-director of
the EEOD. Lewis eventually filed an EEO complaint against Innis
that identified Brockman as a supporting witness. Lewis emailed a
copy of the complaint to her supervisor and copied Christina
Mollett (“Mollett”), a Senior Operations Advisor. Lewis eventually
accepted a settlement agreement disposing of her complaint.

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1Although Mollett testified that she never saw a copy of the
complaint, Lewis’s affidavit stated that Mollett requested the
meetings with the three employees to discuss its allegations.
Therefore, we must assume that Mollett had at least some knowledge
of the complaint and Brockman’s participation therein.
3
Mollett did not handle the complaint itself or negotiate the
settlement agreement. She did, however, implement the terms of the
settlement. To that end, Mollett met with Brockman, Lewis, and
another employee, Cynthia Marks, at the direction of her
supervisor, Morgante. 1
In January 2002, Innis was removed as EEOD Director and
replaced by Mollett as Acting Director. One of Mollett’s primary
duties was to counsel IRS employees on reasonable accommodations.
The IRS policy on reasonable accommodations, with which Mollett was
familiar, states that an employee need not specifically mention the
words “reasonable accommodation” and that the request for the
accommodation need not be written. J.A. 353-55.
Also in January 2002, Brockman became pregnant and was
hospitalized for acute pregnancy complications, including bleeding
and threatened abortion. Her doctor gave her a medical certificate
endorsing her ability to work from home if she remained on bed rest
until further notice; there was no indication of how long the bed
rest would be necessary. On January 28, 2002, Brockman called
Mollett to explain the doctor’s instructions and to request

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2Mollett claims, however, that Brockman only told her that she
was sick and did not request to work from home. As this is a
motion for summary judgment, we accept Brockman’s version of the
discussion.
4
permission to work from home. 2 On February 5, 2002, Brockman faxed
her medical certificate and a note to Mollett again requesting
permission to work from home.
The course of subsequent communications between Brockman and
Mollett is disputed. Viewed in the light most favorable to
Brockman, she called Mollett almost daily about her request to work
from home. Although Brockman relocated during this period, she
testified to leaving voicemail messages with both Mollett and
Mollett’s assistant with her new contact information as well as
instructions for bypassing the call-intercept feature of her phone.
Brockman denied receiving a faxed letter from Mollett requesting
more information about her medical condition and her proposal to
work from home, but she does not contest Mollett’s claim that the
fax was sent. Brockman does acknowledge receiving a fax from
Mollett on February 25 denying her request. As grounds for that
decision, Mollett noted Brockman’s failure to provide medical
documentation that Brockman could work during her prescribed bed
rest, the difficulties associated with communicating with Brockman
by phone and fax, and security concerns in having customer
information at Brockman’s home.

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5
Brockman filed an EEO complaint on March 23, 2002 to protest
the denial of what she viewed as a reasonable accommodation for her
pregnancy-related disability. Prior to her scheduled administrative
hearing before the EEOC, however, she filed the instant suit
charging the IRS with discrimination and retaliation under Title
VII, and a failure to accommodate and retaliation under the
Rehabilitation Act. The district court, ruling from the bench,
granted the IRS’s motions for summary judgment on all of Brockman’s
claims. Regarding Brockman’s Title VII claims, the court found
that Brockman failed to make out a prima facie case of disparate
treatment, and it found that her retaliation claim failed on
multiple grounds. The court found that Brockman had not engaged in
protected activity under Title VII, had not been subject to an
adverse employment action, and had failed to show a causal nexus
between the alleged adverse employment action and protected
activity. Brockman fared no better on her Rehabilitation Act
claims: the district court concluded that Brockman failed to show
a disability under the Act and that there was no retaliation in
response to her request to work from home. Brockman timely
appealed this order.

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II.
A.
We turn first to Brockman’s claim that she was discriminated
against under Title VII. This court reviews a grant of summary
judgment de novo. Med. Waste Assocs. v. Mayor of Baltimore, 966
F.2d 148, 150 (4th Cir. 1992).
We analyze a disparate treatment case under Title VII under
the framework of shifting burdens set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Hux v. City of
Newport News, 451 F.3d 311, 314-15 (4th Cir. 2006). First, the
plaintiff must establish a prima facie case of discrimination. To
make a prima facie case, the plaintiff must show that (1) she is a
member of a protected class; (2) she was qualified for the job and
performed it satisfactorily; (3) she suffered an adverse employment
action; and (4) she was treated differently than similarly situated
employees outside of the protected class. Autry v. N.C. Dep’t. of
Human Res., 820 F.2d 1384, 1385 (4th Cir. 1987). If the plaintiff
meets these four requirements, the burden then shifts to the
employer to demonstrate a legitimate non-discriminatory reason for
the adverse employment action. Hux, 451 F.3d at 314. If the
employer does so, then the plaintiff must prove that this reason
was actually a pretext for discrimination. Id. at 315.
Brockman’s disparate treatment claim fails because she cannot
show an adverse employment action. The standard for an adverse

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3The Supreme Court has recently clarified that a different--
and less strenuous–standard is used to define adverse employment
actions in the retaliation context. See Burlington N. & Santa Fe
Rwy. v. White, 126 S. Ct. 2405, 2413 (2006)(explaining that the
retaliation provision was intended to protect employees from a
broader array of employer actions than the substantive
discrimination provisions)(discussed in Part II.B).
7
employment action in a disparate treatment case is different than
in a retaliation case: in a discrimination case, our precedent
mandates that the plaintiff has the higher burden of showing an
“ultimate employment” action that affects “hiring, granting leave,
discharging, promoting, and compensating.” Page v. Bolger, 645
F.2d 227, 233 (4th Cir. 1981). 3 Although Brockman was not allowed
to work from home, she was not denied leave. It is undisputed that
Mollett offered to approve sick leave, but Brockman did not want to
take time off. A determination affecting Brockman’s ability to
work where she chooses is not the type of ultimate decision that
this court has required for a prima facie case of discrimination.
See id. Neither are the other actions attributed to Mollett, such
as assigning different projects and failing to return phone calls.
See Munday v. Waste Management of N.A., Inc., 126 F.3d 239, 243
(4th Cir. 1997) (holding that giving an employee less preferable
work assignments, excluding her from meetings, or ignoring her is
not enough for an adverse employment action). Finding no adverse
employment action, we affirm the district court’s grant of summary
judgment to the IRS on Brockman’s disparate treatment claim.

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B.
We next consider Brockman’s claim that she was retaliated
against for engaging in protected activity under Title VII, again
under a de novo standard of review.
A retaliation claim under Title VII, like a disparate
treatment inquiry, is analyzed under the McDonnell Douglas
framework set forth above. See 411 U.S. at 802-04. The
requirements of the prima facie case of retaliation, however,
differ. To make a prima facie case for retaliation under Title
VII, Brockman must show that she (1) engaged in protected activity;
(2) suffered an adverse employment action; and (3) there is a
causal nexus between the protected activity and the adverse action.
McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991).
The district court found that Brockman had not engaged in
protected activity, as her only involvement in Lewis’s claim was
serving as a witness. We disagree. Under our precedent, it is
clear that acting as a witness in a Title VII claim is protected
activity. Laughlin v. Metro. Washington Airports Auth., 149 F.3d
253, 259 (4th Cir. 1998) (“Activities that constitute participation
are . . . (1) making a charge; (2) testifying; (3) assisting; or
(4) participating in any manner in an investigation, proceeding, or
hearing under Title VII.”). Although Brockman clears this hurdle,
however, she still must establish the other elements of the prima
facie case and show pretext for the IRS’s proffered reason for the

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9
adverse action. See Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d
541 (4th Cir. 2006).
The district court also found that Brockman failed to show an
adverse employment action. After the district court ruled in this
case, the Supreme Court clarified the requirement for an adverse
employment action in the retaliation context. “[T]he anti-
retaliation provision, unlike the substantive provision, is not
limited to discriminatory actions that affect the terms and
conditions of employment.” White, 126 S. Ct. at 2412-13. The scope
of what constitutes an adverse employment action for discrimination
purposes is not infinite, however: “a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, which . . . means it well might have dissuaded
a reasonable worker from making or supporting a charge of
discrimination.” Id. at 2415 (emphasis added) (internal quotations
omitted).
In White, the Court found that reassignment to a less
desirable job and a period of suspension without pay were material.
By that standard, many of Brockman’s claims--that Mollett failed to
respond to Brockman’s phone calls, assigned her difficult work, and
forced her to walk--do not approach materiality. See id. These
actions simply would not have dissuaded a reasonable employee from
making a discrimination charge. Nonetheless, White requires us to
separate significant from trivial harms. See id. We cannot say,

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however, that the denial of Brockman’s request to work from home
might not be a material harm. Because the denial of such a request
might deter one from participating in protected activity, we
assume, without deciding, that it was an adverse employment action
and proceed with our analysis.
Next, Brockman must show a causal nexus between the denial of
her request to work from home and her involvement with Lewis’s
complaint. An employee need not prove causation itself at the
prima facie case stage: rather, a close temporal relationship
between the protected activity and the adverse action is sufficient
to show a causal nexus. Yashenko, 446 F.3d at 551 (citing Williams
v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). We have
not decided how close a temporal connection must exist for there to
be a causal nexus, but our precedent establishes that several
months is sufficiently proximate to satisfy the requirement. See
Cerberonics, 871 F.2d at 454, 457 (finding that the employee’s
filing of a discrimination complaint and being fired approximately
three months later was sufficiently close to show a causal nexus
for the purposes of a prima facie case); but see Tinsley, 155 F.3d
at 443 (finding that fourteen years is “far too long a period” to
satisfy the casual-nexus requirement). Here, Brockman’s request to
work from home was denied approximately three months after Mollett
became aware of her involvement with Lewis’s EEO complaint. Again,
we will assume without deciding that Brockman satisfies the

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requirement of a causal nexus and therefore makes a prima facie
case of retaliation.
Ultimately, however, Brockman’s retaliation claim fails
because she does not offer evidence sufficient to show that the
IRS’s legitimate nondiscriminatory reason for denying her request
to work from home was pretextual. Mollett’s February 25 letter to
Brockman listed several factors on which she based her conclusion
that Brockman could not perform her job as well from home: (1) the
doctor’s order of bed rest was incompatible with Brockman
performing her work duties; (2) it was consistently difficult to
reach Brockman by either phone or fax; (3) customers complained
about service problems from Brockman; and (4) Brockman worked with
sensitive EEO complaint information that needed to be secured for
privacy purposes. See J.A. 399-400. Under our precedent, these are
legitimate, nondiscriminatory reasons for denying Brockman’s
request which Brockman must rebut with evidence of pretext. See
Yashenko, 446 F.3d at 551.
An employee cannot survive a motion for summary judgment in a
retaliation case “by focusing on minor discrepancies that do not
cast doubt on the [employer’s proffered explanation’s] validity.”
Hux, 451 F.3d at 315. Our precedent, and the Supreme Court’s,
explains that “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported

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4Brockman also attempts to construe certain factual
inconsistencies in the record as evidence of pretext, such as a
dispute over who initiated Mollett’s initial meeting with Brockman
and Lewis, but these inconsistencies are peripheral and are not
sufficiently material to show pretext.
5 Brockman asserts that there were no problems with her phone
system, but she does not contest Mollett’s assertions that she
attempted to contact Brockman via phone and fax.
12
motion for summary judgment.” Id. at 317 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
Here, Brockman attempts to characterize Mollett’s failure to
respond more quickly to her request as evidence of pretext.4 This
is unpersuasive, as Mollett responded in a timely fashion and
requested that Brockman provide more information about her medical
condition and proposal to work from home. Brockman never provided
any medical information to Mollett to indicate that her health
problems rose to the level of a disability. That Brockman claims
not to have received the fax is irrelevant, as it is clear that
Mollett attempted to resolve the issue in a timely manner and was
stymied by communication problems with Brockman. It is not
contested that Mollett attempted to contact Brockman on multiple
occasions.5 We note that this very communication problem is one of
the reasons that Mollett found it would be inappropriate for
Brockman to work from home. At oral argument, Brockman also
focused on the fact that Lewis was allowed to work from home as an
indicator of pretext; we find this, too, to be unpersuasive, as
Innis--not Mollett--granted Lewis’s request. Brockman does not

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6We find that Brockman’s Rehabilitation Act retaliation claim
fails on the same grounds as does her Title VII retaliation claim.
Even if we assume, without deciding, that she can present a prima
facie case of retaliation, she does not present sufficient evidence
of pretext to raise a genuine issue of material fact that the IRS
retaliated against her for requesting a reasonable accommodation
for her alleged disability. See supra Part II.B. for our complete
analysis of the pretext issue.
13
raise an issue of material fact with regard to the existence of
pretext.
We find that Brockman fails to rebut the IRS’s legitimate
reasons given for denying her request to work from home and
therefore does not have a Title VII retaliation claim. Thus, we
affirm the district judge’s grant of summary judgment to the IRS on
this issue.
III.
We turn next to Brockman’s claims under the Rehabilitation
Act. Brockman argues that the IRS discriminated against her in
violation of the Rehabilitation Act when it refused her a
reasonable accommodation for her disability, and she also argues
that the IRS retaliated against her for requesting a reasonable
accommodation. 6 Again, we review the district court’s grant of
summary judgment to the IRS de novo. Med. Waste Assocs., 966 F.2d
at 150.
Our analysis under the Rehabilitation Act (“RA”), like Title
VII, follows the McDonnell Douglas framework of burden shifting.

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See Ennis v. Nat’l Assoc. of Bus. and Educ. Radio, Inc., 53 F.3d
55, 57 (4th Cir. 1995). The RA is also interpreted using the law
applicable to the Americans with Disabilities Act. Myers v. Hose,
50 F.3d 278, 281 (4th Cir. 1995). To make a prima facie case of
disability discrimination, Brockman must prove that: (1) she has a
disability under the RA; (2) she is qualified for the employment in
question; and (3) she suffered an adverse employment action due to
discrimination on the basis of disability. Doe v. Univ. of Md.
Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). The RA
defines an individual with a disability as a person who:
(i) has a physical or mental impairment which
substantially limits one or more of such person’s
major life activities;
(ii) has a record of such an impairment; or
(iii)is regarded as having such an impairment.
Rehabilitation Act, 29 U.S.C. § 705(20)(B); Rehabilitation Act, 29
C.F.R. § 1614.203(a)(1). Walking is a major life activity under
the RA. 29 C.F.R. § 1614.203(a)(3). Duration, severity, and
permanent or long-term impact of the impairment are all factors
used in determining whether an individual is substantially limited
in a major life activity. 29 C.F.R. § 1630.2(I). We have not
decided whether complications due to pregnancy can constitute a
disability under the RA and need not do so here. If an employee
does not prove that she is disabled under the RA, she is not
entitled to any accommodation. Hooven-Lewis v. Caldera, 249 F.3d
259, 271 (4th Cir. 2001).

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7We note that unlike the situation in other types of
employment-related claims, it is not the IRS that controlled
evidence that would support a finding that Brockman was disabled:
any evidence to this effect is under Brockman’s exclusive control.
8The district court approached the analysis of this issue
somewhat differently. It assumed, without deciding, that Brockman
established a prima facie case, but it concluded that allowing
Brockman to work from home would cause an undue hardship for the
IRS. We need not reach this step of the analysis as we find that
she fails to make a prima facie case under the RA.
15
Even if we assume that pregnancy complications may constitute
a disability, Brockman’s evidence falls far short of showing that
she was substantially limited in a major life activity. The only
evidence Brockman proffers in this regard is her doctor’s note
stating that she should be on bed rest “until further notice,” and
the claim that the doctor orally instructed her not to walk long
distances. Significantly, Brockman’s own actions directly
contradict her assertion that she was substantially limited in
walking, as she walked, stood, and performed other normal work
functions when she came back to the office of her own accord. It
is not enough that her ability to walk be limited--it must be
substantially limited. See 29 C.F.R. § 1630.2(j)(1). Brockman
offers no evidence of the duration of her impairment, nor of its
severity,7 both factors that would point to a finding of a
substantial limitation. As she does not present sufficient
evidence to show that she was substantially limited in a major life
activity, Brockman’s RA claim fails and we find that the district
court’s grant of summary judgment was proper on this issue.8

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IV.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the IRS on all of Brockman’s claims.
The judgment of the district court is
AFFIRMED.

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