UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY SETTLE,

Plaintiff-Appellant,

v.

No. 98-2312

S. W. RODGERS COMPANY,

INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CA-98-125-A)

Submitted: February 26, 1999

Decided: July 12, 1999

Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michele Scott Bellizaire, Manassas, Virginia, for Appellant. Joseph

H. Kasimer, Lesa Leonard Byrum, KASIMER & ITTIG, P.C., Falls

Church, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Larry Settle appeals from the district court's order granting summary judgment in favor of Defendant S. W. Rodgers Company, Inc.

("Rodgers"), on Settle's action alleging violations of the Americans

with Disabilities Act of 1990 ("ADA"), 42 U.S.C.A. §§ 12101-12213

(West 1994 & Supp. 1998), and the Family and Medical Leave Act

("FMLA"), 29 U.S.C.A. §§ 2601-2619 (West 1999). We affirm.

Settle was employed by Rodgers as a diesel mechanic from 1986

until May 1995. In June 1994, Settle injured his right shoulder in a

work-related accident. Settle reported the accident to Rodgers' Director of Human Resources, and a worker's compensation report was

filed. A few days after the accident, Settle went to see Dr. W. Bartley

Hosick, an orthopedic surgeon, for an evaluation. Dr. Hosick diagnosed the injury as a possible rotator cuff tear, placed Settle on a

physical therapy program, and limited Settle to light duty work. Settle

eventually returned to full duty, but by January of 1995 was again

experiencing pain and stiffness in his right shoulder. He returned to

Dr. Hosick for reevaluation, and Dr. Hosick recommended surgery.

Settle underwent surgery on his shoulder in February 1995. Settle

requested and received four weeks' paid leave of absence from Rodgers to recover from the surgery and informed Rodgers that Dr. Hosick ordered him to return to only light duty work following the fourweek leave of absence. Rodgers granted the leave of absence, and

Settle was told that he could receive two-thirds of his weekly salary

while he was absent under Rodgers' workers compensation plan. Settle was not given any information about the possibility of taking

unpaid leave under the FMLA. Because Settle determined that twothirds of his salary would be insufficient to meet his obligations, Rodgers agreed to pay Settle eighty percent of his average weekly salary

while he was out of work. Rodgers further agreed to pay Settle ninety

percent of his average weekly salary when Settle returned to light

duty work.

When Settle returned to work in late March, Rodgers assigned a

young apprentice, Thomas Noland, to assist Settle in doing any lift-

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ing, carrying or pushing that Settle was unable to do. Although Settle

felt that the arrangement was not fully satisfactory because Noland

was not there for Settle's full work day, Settle never requested any

accommodation from Rodgers or informed Rodgers that Noland's

help was insufficient. When Noland was not there, other mechanics

were available to help Settle as needed, and no one ever refused to

help Settle.

As ordered by Dr. Hosick, Settle attended physical therapy sessions

three times a week after the surgery, including when he returned to

work. He arranged for and attended the therapy sessions on work

time. He did not know of any FMLA rights he might have in connection with the therapy and did not request any unpaid leave to go to

therapy. However, Settle was not penalized by a reduction in pay for

the time missed from work due to therapy.

After a few weeks back on the job, Settle noted a significant

improvement in his shoulder condition and he felt confident that it

would heal. In late April, Settle informed Rodgers that he was now

available for regular duty. Accordingly, Settle began to receive his

full salary. By May, Settle had reacquired a full range of motion and

had decreased pain. Settle stopped going to physical therapy on Dr.

Hosick's direction and canceled his last appointment.

When Settle first returned to work in March, he had a conference

with his supervisor, James Hodge. Hodge warned Settle that he was

taking too long to get his work done and that he"roamed" the shop

too much. Hodge complained that Settle did not stay in his work area

and talked too often to other mechanics. Other supervisors also

warned Settle that he roamed outside his work area too often, talking

to other mechanics and taking up their work time. Hodge and other

supervisors also warned Settle that he received an excessive number

of personal phone calls. During the time period after he returned to

work, Settle received numerous phone calls from his ex-wife relating

to child support, from his current girlfriend, and from various bill collectors.

Rodgers terminated Settle in mid-May 1995 for excessive personal

phone calls and for roaming. Within two weeks of being fired, Settle

obtained another job as a diesel mechanic. He was not provided with

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a helper as he had been at Rodgers, but was told that other mechanics

would be there to help him if needed. Settle felt that this arrangement

was reasonable.

After Settle began work at his new job, his shoulder deteriorated,

and in November 1995 he underwent a second surgery. He did not

regain a full range of motion on his shoulder nor complete relief from

pain, and Dr. Hosick diagnosed Settle in March 1996 as having a permanent disability. In April 1996, Dr. Hosick noted that Settle was

cleared for full time medium to heavy demand work, and he noted

that Settle was investigating a job as an auto mechanic, which Dr.

Hosick felt that Settle could manage.

In January 1998, Settle filed a complaint against Rodgers alleging

discrimination under the ADA, willful interference with Settle's statutory rights under the FMLA, and retaliation under both statutes.* The

district court granted Rodgers' motion for summary judgment on the

grounds that Settle could not show he was disabled under the ADA,

as at the time of his termination from Rodgers, his ability to work was

not substantially limited by the shoulder injury. Even assuming that

Settle could show that he qualified as disabled under the ADA, he

could not rebut Rodgers' legitimate non-discriminatory reasons for

Settle's termination. Further, Settle could not show that he engaged

in any protected activity under the ADA to support a claim for retaliation. As to Settle's claims of willful FMLA violations, the district

court held that although Rodgers failed to inform Settle of his FMLA

right to take unpaid leave, there was no evidence that such failure was

willful. Further, the court found that there was no support for Settle's

contention that he was terminated because he availed himself of his

FMLA rights and thus no support for Settle's claim that he was terminated in retaliation for exercising his rights under the FMLA. Settle

timely appealed.

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*The district court noted that although the FMLA contains a general

two-year statute of limitations, Settle's FMLA claims were not timebarred to the extent that he alleged "willful" violations of the FMLA, to

which a three-year statute of limitations applies. See 29 U.S.C.A.

§ 2617(c)(2).

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We review the district court's grant of summary judgment de novo.

See Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir.

1997). Settle cannot make out a prima facie case of discrimination

under the ADA because he cannot show that he was a qualified individual with a disability at the time of his discharge. See Griffith v.

Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir. 1998); Halperin,

128 F.3d at 197-200; Harrington v. Rice Lake Weighing Sys., Inc.,

122 F.3d 456, 458, 461 (7th Cir. 1997). Assuming that Settle's shoulder condition qualifies as a physical impairment, he fails to show that

it substantially limited the major life activity of working at the time

of his termination. See 42 U.S.C.A. § 12102(2)(A). Settle was able to

perform light duty work four weeks after the surgery and within two

months was well enough to return to his full work load. He stopped

going to physical therapy, and reacquired a full range of motion.

Within two weeks of termination from Rodgers, Settle found comparable work as a diesel mechanic. Settle's shoulder condition thus did

not "significantly restrict" his ability to perform a wide range of jobs,

and he cannot show that he was disabled under the ADA. See

Halperin, 128 F.3d at 199-200; Williams v. Channel Master Satellite

Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996), cert. denied, ___ U.S.

___, 117 S. Ct. 1844 (1997). Further, Settle failed to rebut Rodgers'

legitimate, non-discriminatory reasons for terminating him: Settle

often roamed outside of his work area, wasting his own time and that

of other mechanics, and he received excessive personal phone calls.

See Halperin, 128 F.3d at 196. To the extent Settle asserts a retaliation claim under the ADA, he fails to show that he ever engaged in

any protected activity or any causal connection between any assumed

protected activity and his termination. See Williams v. Cerberonics,

Inc., 871 F.2d 452, 457 (4th Cir. 1989).

The FMLA prohibits any attempt by employers to interfere with or

deny the exercise of FMLA rights. See 29 U.S.C.A. §§ 2615(a)(1),

2617. Because Settle's claims accrued between March and May 1995,

when he was terminated, they are time-barred by the FMLA's general

two-year statute of limitations except to the extent that Settle can

show a "willful" violation. See 29 U.S.C.A. § 2617(c). A willful violation is shown when an employer knew or showed reckless disregard

regarding whether its conduct was prohibited. See McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 132-35 (1988). To prove a willful

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violation, Settle must show more than that Rodgers was merely negligent in failing to inform him of his FMLA rights. See id. at 133-35.

Here, there was no evidence that Rodgers' failure to inform Settle

of his entitlement to unpaid leave under the FMLA was more than

mere negligence. Further, Settle received as much leave as he needed

to recover from the surgery, which leave was not unpaid but paid at

eighty percent of his usual salary. In addition, Settle attended therapy

sessions on company time. As to Settle's retaliation claim under the

FMLA, Settle failed to show that he was terminated on account of any

assumed availment of his FMLA rights. See Hodgens v. General

Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998); Morgan v. Hilti,

Inc., 108 F.3d 1319, 1325 (10th Cir. 1997).

We affirm the district court's grant of summary judgment in favor

of Rodgers. We dispense with oral argument because the facts and

legal contentions are adequately set forth in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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