Tempie Ann Bell v. ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1890
TEMPIE ANN BELL,
Plaintiff - Appellant,
v.
ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs,
Defendant - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cv-00057-WO-LPA)
Submitted: August 26, 2014 Decided: September 16, 2014
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel F. Read, Durham, North Carolina, for Appellant. Lynne P.
Klauer, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On August 10, 2010, Tempie Ann Bell was injured while
working for the United States Department of Veterans Affairs
(“Defendant”) and was unable to return to work. Defendant
granted Bell leave until November 14, 2010, but required her to
return to work thereafter. Bell failed to comply, and on
February 25, 2011, Defendant terminated her for being absent
without leave, effective March 11, 2011. Bell filed a complaint
alleging that Defendant discriminated against her on the basis
of her disability and retaliated against her for engaging in
protected activities, in violation of the Rehabilitation Act, 29
U.S.C. §§ 701–796l (2012), amended by Workforce Innovation and
Opportunity Act, Pub. L. No. 113-128, §§ 401-488, 128 Stat.
1425, 1631-94 (2014). The district court granted summary
judgment to Defendant on these claims, and Bell appeals.
Finding no reversible error, we affirm.
We review a district court’s order granting summary
judgment de novo. D.L. ex rel. K.L. v. Balt. Bd. of Sch.
Comm’rs, 706 F.3d 256, 258 (4th Cir. 2013). Summary judgment is
appropriate only where “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a
matter of law.” Seremeth v. Bd. of Cnty. Comm’rs Frederick
Cnty., 673 F.3d 333, 336 (4th Cir. 2012) (internal quotation
marks omitted). In determining whether a genuine issue of

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material fact exists, we “view[] the facts and the reasonable
inferences therefrom in the light most favorable to the
nonmoving party.” Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.
2011).
To establish a prima facie case of disability
discrimination, a plaintiff must prove that she is “qualified,”
by showing that either (1) “she could perform the essential
functions of the job, i.e., functions that bear more than a
marginal relationship to the job at issue,” or (2) some
“reasonable accommodation by the employer would enable [her] to
perform those functions.” Tyndall v. Nat’l Educ. Ctrs., Inc.,
31 F.3d 209, 213 (4th Cir. 1994) (internal quotation marks
omitted); see Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 150
(4th Cir. 2012) (discussing prima facie case under Americans
with Disabilities Act for discriminatory discharge claim). The
district court found that Bell was not qualified because she
could not perform her job and no reasonable accommodations would
enable her to do so. Bell argues that, even if she could not
have continued in her current nursing position, she could have
worked in an administrative capacity. However, Bell has not
produced evidence that there were any positions available at the
time of her termination that she was qualified to fill.
Moreover, as the district court noted, Bell’s absence from work
left her unable to perform any job. See Byrne v. Avon Prods.,

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Inc., 328 F.3d 379, 381 (7th Cir. 2003). Because Bell failed to
show that she was qualified for her position, summary judgment
on her disability claim was proper.
Because Bell presented no direct evidence of
retaliation, we analyze her retaliation claim under the familiar
burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Ennis v. Nat’l Ass’n
of Bus. & Educ. Radio, Inc., 53 F.3d 55, 57–58 (4th Cir. 1995).
“In the McDonnell Douglas framework, the plaintiff must first
establish a prima facie case of retaliation, whereupon the
burden shifts to the employer to establish a legitimate non-
retaliatory reason for the action.” Price v. Thompson, 380 F.3d
209, 212 (4th Cir. 2004). If the employer meets this burden,
“the plaintiff then must show that the employer’s proffered
reasons are pretextual . . . by showing that the explanation is
unworthy of credence or by offering other forms of
circumstantial evidence sufficiently probative of
[retaliation].” Id. (internal quotation marks omitted).
Throughout this process, the plaintiff bears the ultimate burden
of “establish[ing] that . . . her protected activity was a but-
for cause of the alleged adverse action by the employer.” Univ.
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
The district court found that Defendant had proffered
a legitimate non-retaliatory reason for her termination — her

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continued absence — and that Bell had failed to forecast
sufficient evidence to establish that this reason was
pretextual. To establish pretext, Bell relies on evidence that
her supervisors were hostile to her. However, even assuming
that such hostility existed, Bell’s prolonged absence, with no
indication that she would be able to return to work in the near
future, makes it implausible that she would have been retained
regardless of her supervisors’ feelings about her. Because the
evidence did not allow the reasonable inference that Bell would
not have been terminated but for her protected activity, summary
judgment on this issue was proper.
Accordingly, we affirm the entry of summary judgment
in favor of Defendant. We deny Bell’s pending motions to file a
supplemental document and dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED

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