UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-2195

VICTORIA ANDERSON, 

Plaintiff - Appellant,

v.

DISCOVERY COMMUNICATIONS, LLC; JANELL COLES; LISA WILLIAMSFAUNTROY; DOE DEFENDANTS 1 THROUGH 4,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Alexander Williams, Jr., District 

Judge. (8:08-cv-02424-AW)

Argued: January 30, 2013 Decided: April 5, 2013

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Elaine Lynette Fitch, KALIJARVI, CHUZI, NEWMAN & FITCH, 

PC, Washington, D.C., for Appellant. Mark David Harris, 

PROSKAUER ROSE, LLP, New York, New York, for Appellees. ON 

BRIEF: George M. Chuzi, KALIJARVI, CHUZI, NEWMAN & FITCH, PC, 

Washington, D.C., for Appellant. Amanda D. Haverstick, Julianne 

M. Apostolopoulos, PROSKAUER ROSE, LLP, Newark, New Jersey, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Victoria Anderson appeals from the district court’s 

judgment granting summary judgment to her former employer 

Discovery Communications, LLC, (“Discovery”) and other 

individual defendants on her claims brought under the Americans 

with Disabilities Act (“ADA”), the Montgomery County, Maryland,

Human Rights Act (“MCHRA”), and the Family Medical Leave Act 

(“FMLA”). For the reasons set forth below, we affirm the 

judgment of the district court. 

I. Factual Background & Proceedings Below

From August 2004 to January 2007, Discovery employed 

Anderson as an attorney in the Programming, Production, and 

Talent Group (“the Group”) of Discovery’s Legal Department. 

Defendant-Appellee Janell Coles was the Director of the Group,

and Anderson’s direct supervisor; Defendant-Appellee Lisa 

Williams-Fauntroy was Vice President of the Group, and Coles’ 

direct supervisor.1

 Although Anderson received praise for her 

strong technical, legal, and drafting skills, her annual 

performance reviews repeatedly indicated needing improvement in 

areas such as “effectively organizing, planning, and 

 1 For ease of reference, all of the Defendants (Appellees

here) will be referred to collectively as “Discovery.”
3

prioritizing work,” working on her demeanor and tone, and in 

developing her interpersonal skills with both colleagues and 

clients. (J.A. 659-60.) 

In October 2006,2 Anderson was in California for a 

conference when she became ill and visited a local doctor, who 

advised her, inter alia, that she may have a sleep impairment. 

Upon her return to Maryland, Anderson requested and was granted 

FMLA leave from October 20 to November 15, during which time she 

consulted with her personal physician, Dr. Collin D. Cullen, and 

a sleep specialist, Dr. Andrew P. Tucker. The physicians

determined that Anderson’s laboratory and sleep test results 

were normal, and excluded sleep apnea as a diagnosis. Since 

Anderson reported that she was only sleeping between two and 

four hours each night, the physicians concluded she likely 

suffered from “fatigue,” “sleep deprivation,” and “insomnia.” 

(J.A. 306-09.) The physicians gave Anderson advice on falling 

and staying asleep and a prescription for Ambien.

In late November, Anderson returned to Dr. Cullen, and 

based on Anderson’s statements indicating that her overall 

condition was improving, Dr. Cullen recommended that she

“[r]eturn to full duty with hour restriction to 8 hours per 

day.” (J.A. 306, 308.) In two follow-up appointments with Dr. 

 2 All dates are in 2006, unless otherwise noted.
4

Tucker at the end of November and mid-December, Dr. Tucker

indicated that he placed “no restrictions” on Anderson’s ability 

to work, and that he had no reason to believe that she was 

“significantly impaired” by that point. (J.A. 327.) At his 

deposition, Dr. Tucker testified that as of December 19, there 

was no basis for placing Anderson on disability “from a sleep 

standpoint.” (J.A. 325-26.)

When she returned to work, Anderson asked her supervisors 

to be allowed a maximum 8-hour work day. At their request, 

Anderson submitted a proposal, but only committed to work in the 

office between 11 a.m. and 4 p.m. Moreover, she stated that she 

would not track her personal, break, or lunch time or account 

for her specific workload unless other members of the Group were 

also required to do so. Anderson’s supervisors reviewed the 

proposal and denied her request, stating that the proposal would 

not enable her to perform the responsibilities of her job, which 

included a 40-hour minimum work week, presence in the office 

during core business hours of 9 a.m. to 6 p.m. Monday through 

Friday, and flexibility to work outside those hours as 

international transactions required. 

On January 3, 2007, Williams-Fauntroy informed Anderson 

that Discovery was terminating her employment. At her 

deposition, Anderson stated that Williams-Fauntroy told her that 

her “performance was not at all a factor in her termination,” 
5

and that the “sole reason” for her termination was her failure 

to update her time records. (J.A. 157-58.) Williams-Fauntroy

stated in her deposition that she informed Anderson that “she 

was being terminated because [Discovery] determined that she is 

untrustworthy and that she had not accurately represented her 

time entries [documenting her work hours] as requested by her 

manager.” (J.A. 217.) Williams-Fauntroy also recounted several

factors underlying that decision, many of which she had listed 

in a bullet-point note she had prepared prior to meeting with 

Anderson on January 3, but which she described in greater detail 

during her deposition. Those factors included Anderson’s longterm “insubordination”; her refusal to accept a performance plan 

schedule following her mid-year (2006) review; her “[c]ombative, 

difficult, manipulating” nature, which had led to “difficulties”

with clients and colleagues, as well as “skewing” and 

misrepresenting prior discussions with co-workers and 

supervisors; and her “manipulating” time sheets documenting 

vacation and sick leave, coupled with her subsequent refusal to 

correct them when confronted with evidence establishing that she 

had inaccurately recorded her time. (J.A. 220, 223-24.) 

Anderson filed a complaint in the United States District 

Court for the District of Maryland, alleging claims of failure 
6

to accommodate and retaliation under the ADA and MCHRA,3 and 

retaliation and interference of rights under the FMLA. 

Following discovery, Discovery moved for summary judgment, which 

the district court granted. The district court held that 

Anderson was not an “individual with a disability” under the 

ADA and therefore could not establish a prima facie case of 

failure to accommodate; that even if she could establish a prima 

facie case of retaliation, Anderson had not presented any 

evidence indicating Discovery’s legitimate, non-discriminatory 

reasons for firing her were a pretext; that Anderson did not 

have a “serious medical condition” entitling her to FMLA leave; 

and that Anderson had not given Discovery adequate notice of her 

need for FMLA leave. Anderson v. Discovery Commc’ns, LLC, 814 

F. Supp. 2d 562, 569-72 (D. Md. 2011). 

Anderson noted a timely appeal, and we have jurisdiction 

under 28 U.S.C. § 1291. 

 3 Because Maryland has applied the MCHRA by looking to ADA 

case law, it is appropriate to consider those claims together, 

as the district court did. See Ridgely v. Montgomery Cnty., 883 

A.2d 182, 193 (Md. Ct. App. 2005) (stating that the MCHRA and 

ADA contain “almost identical” definitions of “disability” and 

“qualified individual with a disability”). Similarly, our 

analysis of the ADA claims encompasses our analysis of 

Anderson’s MCHRA claims.
7

II. Standard of Review

We review the district court’s grant of summary judgment de 

novo, applying the same standard used by the district court. 

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). 

Summary judgment is appropriate when there is no genuine issue 

of material fact, and the moving party is entitled to judgment 

as a matter of law. Id. The facts must be viewed in the light 

most favorable to the non-moving party, id., which we do here. 

III. ADA Claims

The ADA prohibits discrimination in employment decisions 

against “individual[s] on the basis of disability.” 42 U.S.C. § 

12112(a). A threshold issue is whether a plaintiff has adduced 

evidence showing that she is such a person, i.e., that she is an 

individual with a disability as defined by the statute. See

Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 (4th Cir. 

2004) (stating that a plaintiff is first required “to produce 

evidence that she is . . . disabled.”). In relevant part, the 

ADA defines a “disability” as “a physical or mental impairment 

that substantially limits one or more major life activities of 

such individual.”4

 42 U.S.C. § 12102(a)(A). Thus, having a 

 4 The ADA lists three definitions of “disability,” but 

Anderson relies only on this one. See 42 U.S.C. § 12102(2) 

(2007).
8

“physical or mental impairment” is not sufficient on its own to 

establish an ADA-cognizable disability, nor is showing that the 

impairment affects “one or more major life activities.”5 An 

individual must also show she is “substantially limit[ed]” as a 

result of the impairment. See Sutton v. United Airlines, Inc., 

527 U.S. 471, 489 (1999). 

Anderson contends that the record evidence shows a genuine 

issue of material fact exists as to whether she was 

“substantially impaired” in her major life activity of sleeping. 

This is so, she submits, because the record reflects her 

diagnosis of insomnia as a result of averaging less than four 

hours of sleep at night, which is less than the average person. 

In addition, Anderson contends that the district court 

improperly considered the effect her lack of sleep had on her 

daytime productivity and work, thus holding her to a heightened 

standard of showing impairment in more than one major life 

activity. She further asserts that the district court failed to 

view the evidence in the light most favorable to her.6

 5 Although the applicable version of the ADA does not 

expressly delineate “sleeping” as a “major life activity,” every 

court to address the issue, including this one, has concluded or 

assumed that it is. See EEOC v. Sara Lee Corp., 237 F.3d 349, 

352 (4th Cir. 2001); see also EEOC v. Chevron Phillips Chem. 

Co., LP, 570 F.3d 606, 616 (5th Cir. 2009) (collecting cases).

6 Anderson also maintains that the district court erred in 

refusing to consider her diagnosis of dysthymic disorder because 

(Continued)
9

We have reviewed the record and conclude the district court 

did not err in granting summary judgment on this claim. Cf.

Anderson, 814 F. Supp. 2d at 569-72. Viewing the evidence in

the light most favorable to Anderson, the evidence simply does 

not support the conclusion that she was “substantially impaired” 

at the time Discovery terminated her employment. Moreover, 

considering the district court’s statements in context, the 

court did not hold Anderson to an improper standard. Nor did it 

misapply the standard for granting summary judgment.

 

she “was not seeking to have this considered as a separate 

disability, but rather, submitted that her impairment of 

dysthymic disorder impacted the major life activity of 

sleeping.” (Opening Br. 40.) The district court appropriately 

declined to consider this diagnosis as part of Anderson’s claim 

given that she relied on it for the first time in opposing 

summary judgment. See Conley v. Gibson, 355 U.S. 41, 47 (1957) 

(stating that a complaint must give “fair notice of what the 

plaintiff’s claim is and the grounds upon which it rests”) 

(emphasis added). Moreover, the analysis as to whether Anderson 

was “substantially limited” as a result of impairment to her 

ability to sleep would be the same regardless of the underlying 

impairment creating her problems sleeping. See 29 C.F.R. § 

1630.2(j).

On appeal, Anderson raises for the first time her diagnosis 

of anxiety as a basis for an ADA claim. Given her failure to 

raise it to the district court, we need not address this claim 

either. Williams v. Prof’l Transp. Inc., 294 F.3d 607, 614 (4th 

Cir. 2002) (“[In this circuit,] issues raised for the first time 

on appeal are generally not considered absent exceptional 

circumstances.”).
10

Under the Supreme Court precedent applicable to Anderson’s 

case,7 the term “substantially” as used in the ADA, is “to be 

interpreted strictly to create a demanding standard for 

qualifying as disabled.” Toyota Motor Mfg., Ky., Inc. v. 

Williams, 534 U.S. 184, 197 (2002). “[A]n individual must have 

an impairment that prevents or severely restricts the individual 

from doing activities that are of central importance to most 

people’s daily lives. The impairment’s impact must also be 

permanent or long term.” Id. at 198. As the Supreme Court 

explained:

It is insufficient for individuals attempting to prove 

disability status under this test to merely submit 

evidence of a medical diagnosis of an impairment. 

Instead, the ADA requires those claiming the Act’s 

protection . . . to prove a disability by offering 

evidence that the extent of the limitation [caused by 

their impairment] in terms of their own experience . . 

. is substantial.

Id. (internal quotation marks omitted); see also Sutton, 527 

U.S. at 482 (“A ‘disability’ exists only where an impairment 

‘substantially limits’ a major life activity, not where it 

 7 In 2008, Congress amended the ADA considerably, broadening 

the Supreme Court’s narrow reading of the statute. These 

amendments do not apply to Anderson’s case, however, because she 

was terminated prior to their enactment. See Reynolds v. Am. 

Nat’l Red Cross, 701 F.3d 143, 151-52 (4th Cir. 2012) (joining 

other circuits court of appeals in holding that the 2008 ADA 

amendments do not apply retroactively). 
11

‘might,’ ‘could,’ or ‘would’ be substantially limiting if 

mitigating measures were not taken.”).

Applying these principles to Anderson’s case, the record 

fails to show a genuine issue of material fact as to whether 

Anderson suffered from a disability cognizable under the ADA. 

Anderson’s own doctors recounted that during their appointments 

with her in late November and mid-December, Anderson stated that 

her condition had “improved since time off” and that despite 

getting “much less sleep than what she had historically,” she 

“awakes feeling fully refreshed,” was “functioning normally,” 

and was not “feeling any functional impairment as a result” of 

getting less sleep. (J.A. 516, 315-17, 325, 329-30, 333.) In 

addition, Anderson’s sleep test results were “normal” and she 

slept “more than seven hours.” (J.A. 325.) Dr. Tucker 

specifically indicated that as of Anderson’s appointment with 

him on December 19, there was no basis “from a sleep standpoint” 

to place Anderson on disability because her functioning was not 

significantly impaired as of late November. (J.A. 325-26.) 

While Anderson is entitled to have the evidence viewed in 

the light most favorable to her, 

only reasonable inferences from the evidence need be 

considered by the court . . . . Permissible inferences 

must still be within the range of reasonable 

probability, however, and it is the duty of the court 

to withdraw the case from the jury when the necessary 

inference is so tenuous that it merely rests upon 

speculation and conjecture. 
12

Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 818 (4th Cir. 

1995). As we previously recognized, “[m]any individuals fail to 

receive a full night of sleep.” EEOC v. Sara Lee Corp., 237 

F.3d 349, 352 (4th Cir. 2001) (quoting Ford Motor Co. v. 

McDavid, 259 F.2d 261, 266 (4th Cir. 1958)). Sleep patterns 

vary between individuals and even during a person’s lifetime, 

and on this record, Anderson simply failed to present evidence

creating a genuine issue of material fact as to whether she was 

“substantially impaired” in December 2006 as a result of her

insomnia. Cf. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 

618 (5th Cir. 2009) (“In an ADA case, the relevant time for 

assessing the existence of a [cognizable] disability is the time 

of the adverse employment action.”). Accordingly, the district 

court did not err in concluding that Anderson was not an 

“individual with a disability” under the ADA.

Anderson’s ADA retaliation claim is based on the ADA’s 

prohibition of discrimination “against any individual because 

such individual has opposed any act or practice made unlawful by 

[the ADA] or because such individual made a charge” thereunder. 

42 U.S.C. § 12203. To survive summary judgment on her ADA 

retaliation claim, Anderson had to produce evidence 

demonstrating that (1) she engaged in conduct protected by the 

ADA; (2) she suffered an adverse employment action subsequent to 
13

engaging in the protected conduct; and (3) a causal link exists 

between the protected activity and the adverse action. Freilich 

v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 

2002). 

Anderson sought to prove causation using the burdenshifting framework established for Title VII cases in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Anderson thus 

bore the initial burden of establishing a prima facie case of 

discrimination; if successful, the burden then shifted to 

Discovery to provide a legitimate, nondiscriminatory reason for 

its action; thereafter, the burden returned to Anderson to show 

by a preponderance of evidence that the proffered reason was a 

pretext for discrimination or retaliation. Laber v. Harvey, 438 

F.3d 404, 432 (4th Cir. 2006) (en banc). 

Anderson contends the district court erred in holding that 

she had failed to set forth evidence from which a jury could 

conclude that Discovery’s nondiscriminatory explanation for its 

action was a pretext. She asserts Discovery had “shifting 

justifications” for terminating her and that is sufficient

reason to deny summary judgment. Specifically, she asserts that 

at the time of her termination, Williams-Fauntroy confirmed that 

the “sole” reason for the decision was her failure to amend her 

time entries, but that since litigation commenced, Discovery 

manufactured a host of additional reasons to support its 
14

decision. As such, she posits that Discovery’s questionable 

credibility supports an inference of pretext. 

We agree with the district court that even assuming

Anderson has set forth a prima facie case of retaliation, 

Discovery has provided a legitimate, nondiscriminatory reason 

for terminating her employment, and no genuine issue of material

fact calls that reason into question as pretext. Anderson 

repeatedly misrepresents the record evidence and parrots 

statements of law regarding pretext, but the record evidence 

simply does not support her contention. From the time of 

Anderson’s actual discharge through litigation Discovery 

provided specific examples of that behavior, and different 

individuals characterized her conduct using slightly different 

examples or terminology, but Discovery’s explanation for its 

decision has been consistent: Anderson’s untrustworthiness and 

poor communication skills. 

Far from being the “sole” reason for her termination, the 

accuracy of Anderson’s time sheets was the proverbial straw that 

broke the camel’s back, i.e., the last in a line and immediate 

precipitating factor in a long, documented history of Anderson’s 

inability to communicate accurately and truthfully with her coworkers. This record diverges from cases where we have held 

that an employer’s changing explanations for its employment 

decision gave rise to an inference of pretext. See, e.g., 
15

Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646 

(4th Cir. 2002) (discussing how a shift both in the detail and 

the explanation for the employer’s decision gave them “the 

flavor of post-hoc rationalizations”); EEOC v. Sears Roebuck & 

Co., 243 F.3d 846, 853 (4th Cir. 2001) (stating that an 

employer’s inconsistent explanations and different 

justifications were probative of pretext). Anderson “cannot 

seek to expose [Discovery’s] rationale as pretextual by focusing 

on minor discrepancies that do not cast doubt on the 

explanation’s validity[.]” Hux v. City of Newport News, 451 

F.3d 311, 315 (4th Cir. 2006). In the absence of such evidence

of pretext, “[i]t is not our province to decide whether 

[Discovery’s] reason was wise, fair, or even correct, 

ultimately, so long as it truly was the reason for [Anderson’s] 

termination.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 

(4th Cir. 1998) (quotation marks omitted).

Discovery articulated a legitimate, non-discriminatory 

reason for Anderson’s termination of employment, and the record 

is devoid of evidence that would create a genuine issue of 

material fact as to whether that explanation was mere pretext. 

Consequently, the district court did not err in granting 

Discovery summary judgment on Anderson’s ADA retaliation claim.
16

IV. FMLA Claims

Anderson also challenges the district court’s grant of 

summary judgment to Discovery on her FMLA retaliation and 

interference claims. Anderson alleged that Discovery violated 

the FMLA by unlawfully interfering with her right to take a 

reduced work schedule upon her return to work in November, and 

that her subsequent termination constituted retaliation under 

the FMLA. Having reviewed the record, as well as the parties’ 

arguments on appeal, we conclude that the district court did not 

err in granting summary judgment to Discovery.8

 

The FMLA allows certain employees to take a total of “12 

work weeks of leave” during a twelve-month period for a “serious 

health condition” that makes the employee “unable to perform the 

functions of” her job. 29 U.S.C. § 2612(a)(1)(D). “FMLA claims 

arising under [a] retaliation theory are analogous to those 

derived under Title VII and so are analyzed under the burdenshifting framework of McDonnell Douglas[.]” Yashenko v. 

Harrah’s NC Casino Co., 446 F.3d 541, 550-51 (4th Cir. 2006). 

 8 The district court concluded Anderson’s FMLA claims failed 

because she did not have a “serious health condition” and had 

not provided adequate notice to Discovery of her need for FMLA 

leave. We affirm on different grounds than relied on by the 

district court. See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th 

Cir. 1993) (“In reviewing the grant of summary judgment, we can 

affirm on any legal ground supported by the record and are not 

limited to the grounds relied on by the district court.”). 
17

Anderson’s FMLA retaliation claim thus fails for the same reason 

her ADA retaliation claim failed: the absence of evidence 

indicating that Discovery’s legitimate, nondiscriminatory reason 

for terminating Anderson was pretext for unlawful behavior. See

infra pp. 12-15.

In order to establish a claim for violation of the FMLA, 

including interference of rights thereunder, Anderson had to 

prove not only the fact of interference, but also that the 

violation prejudiced her in some way. Ragsdale v. Wolverine 

World Wide, Inc., 535 U.S. 81, 89 (2002); see 29 U.S.C. § 

2617(a)(1). Such prejudice can be proven by showing that the 

employee lost compensation or benefits “by reason of the 

violation,” id. § 2617(a)(1)(A)(i)(I); sustains other monetary 

losses “as a direct result of the violation,” id. § 

2617(a)(1)(A)(i)(II); or suffers some loss in employment status 

remediable through “appropriate” equitable relief, such as 

employment, reinstatement, or promotion, id. § 2617(a)(1)(B). 

Here, the only injury Anderson alleged as a result of 

Discovery’s alleged unlawful denial of her request for a reduced 

work schedule was that she was not permitted to work a reduced 

schedule. She does not claim that she lost any compensation or 

benefits, sustained other monetary loss, or suffered loss in 

employment status as a result of the purported interference. 

While Anderson sought $786,000 back pay and reinstatement, she 
18

has failed to show that she is entitled to any of these amounts. 

As discussed above, Anderson’s termination of employment was a 

separate and unrelated event, and from the record it appears 

that Anderson remained employed and was given full benefits 

until her termination. As such, her interference claim must 

also fail. See Yashenko, 446 F.3d at 549-50 (holding that where 

employee was terminated due to a legitimate reason, he cannot 

show that he is entitled to reinstatement even if the employer 

otherwise interfered with his FMLA rights by denying leave). 

V.

For the aforementioned reasons, we affirm the district 

court’s judgment awarding summary judgment in favor of 

Discovery.

AFFIRMED