UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1288

TONI C. WORKS,

Plaintiff - Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner, U.S. Social Security 

Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:10-cv-01284-RDB)

Argued: February 21, 2013 Decided: April 24, 2013

Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit 

Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Richard Talbot Seymour, LAW OFFICES OF RICHARD T. 

SEYMOUR, PLLC, Washington, D.C., for Appellant. Jason Daniel 

Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, 

Maryland, for Appellee. ON BRIEF: Gary M. Gilbert, Sarah E. 

Diouf, Stephanie M. Herrera, Daniel A. Katz, THE LAW OFFICES OF 

GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney, 

Baltimore, Maryland, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Appellant Toni C. Works filed this employment 

discrimination suit under the Rehabilitation Act, 29 U.S.C. 

§§ 701 et seq., against the Social Security Administration (the 

“SSA” or “Appellee”). She claims the SSA illegally terminated 

her from a probationary program for disabled individuals 

attempting to re-enter the workforce. This case was first heard 

by an administrative law judge (“ALJ”), who decided in the SSA’s 

favor, and that decision was upheld by the Equal Employment 

Opportunity Commission (“EEOC”). 

Works then filed a separate suit in the district 

court. There, in her response to the SSA’s Motion to Dismiss, 

or Alternatively, for Summary Judgment, Works requested 

discovery pursuant to Rule 56(d) of the Federal Rules of Civil 

Procedure, as she had not yet had the opportunity to conduct 

discovery at the district court level. The district court 

granted the SSA’s motion –- deeming it a summary judgment motion 

-- without passing on Works’s discovery request. Indeed, the 

court addressed the request for the first time in its subsequent 

denial of Works’s Motion for Reconsideration.

We hold the district court’s denial of Works’s 

discovery request was an abuse of discretion. Works set forth 

in an affidavit specific, discoverable evidence that could 

enable her to defeat the SSA’s motion, including testimony from 
4

SSA employees and managers who did not testify at the 

administrative hearing and were never deposed. 

Therefore, we vacate the district court’s orders 

granting summary judgment to the SSA and denying Works’s Motion 

for Reconsideration, and remand with instructions to grant 

Works’s request for discovery.

I.

A.

Works is a disabled veteran of the United States Navy. 

She suffered a service-related accident in 1985, which resulted 

in a permanently disabling seizure disorder. She was honorably 

discharged from the Navy in 1989. From November 1989 to 

September 1991, she worked as a biomedical equipment technician. 

The next year, Works stopped working as a result of her seizure 

disorder. She applied for and received 100% disability 

compensation from the SSA, which found her to be totally 

disabled. After that, Works applied for and received 100% 

disability benefits from the Department of Veterans Affairs

(“VA”), which likewise found that she was completely disabled. 

From 1992 to 2002, Works did not have gainful employment. 

On August 26, 2002, Works began working at the SSA as 

a probationary employee, “which meant she could work for the SSA 

on a trial basis for one year without having to discontinue her 

disability benefits to demonstrate whether she could 
5

successfully perform the job and be retained on a permanent

basis.” Works v. Astrue, Civ. Action No. 10-1284, 2011 WL 

1197655, at *1 (D. Md. Mar. 29, 2011) (J.A. 2156);1 see also 20 

C.F.R. § 404.1592(a). Works worked as a “Management Assistant” 

in the Office of Management Operations (“OMO”). As a Management 

Assistant, she was required to, inter alia, conduct workflow 

studies; maintain, gather, and compile informational records 

such as organizational and workflow charts; make routine 

calculations, such as staff hours and workload figures; and 

develop, evaluate, and advise on methods and procedures for 

providing administrative support systems to organizations. Her 

supervisors at OMO were Marjorie Warner, Branch Manager, and 

William Johnson-Bey, Deputy Branch Manager. OMO project 

managers for whom she worked were Noma Carter and Jane Leidig. 

The quality of Works’s performance during her tenure 

with OMO is disputed. On March 19, 2003, Johnson-Bey met with 

Works to discuss her mid-year performance review. There is no 

written record; however, in a later memo given to Works, Warner 

recounted the results of that review. That memo, which was 

given to Works on June 23, 2003, stated that at the mid-year 

point in March, Works’s performance was “basically satisfactory, 

 1 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal. 
6

although not exceptional.” J.A. 1701 (the “June 2003 Memo”). 

The June 2003 Memo continued, “The only negative addressed at 

[the time of the March mid-year review] was your handling of a 

budget data entry project assigned to you by the Deputy Branch 

Manager, Bill Johnson-Bey, which you had difficulty 

understanding and needed an excessive amount of direction to 

complete.” Id. 

The June 2003 Memo also mentioned another project: 

developing a database to capture course registration data. The 

memo states, “[W]e asked that you prepare and schedule a 

briefing to demonstrate the database. Your co-worker, shortly 

thereafter, demonstrated the database, in passing, and you 

interjected a few items. . . . [F]eedback since, has indicated 

that your co-worker has done most of the work on this project.” 

J.A. 1701.2 

Also during the first half of her probationary period, 

Works experienced some health problems. From late December 2002 

 2 In April 2003, Works’s supervisors asked for a 

presentation on the progress of this project, which she was 

completing with co-worker George Frank. At the administrative 

hearing, Warner testified, “[I]t was obvious that this was 

George’s work and not Toni’s” and said that Frank told her Works 

“was more of a hindrance than helping.” J.A. 1103. Frank, who 

also testified at the administrative hearing, agreed that Works 

was “taking credit for the majority of th[e] project from 

[him].” Id. at 1031. But he also testified that Works had 

“good work ethics,” was “a diligent worker,” “applied herself,” 

and her work was “good quality.” Id. at 1017, 1018, 1020. 
7

to January 2003, Works’s doctors at the VA began trying new 

medications for her seizure disorder. In January, she suffered 

a seizure at home and as a result, could not work for nearly two 

weeks. Works had not accrued enough sick leave to cover her 

absence from work, so she requested advanced sick leave from 

Warner, who approved the request. On February 13, 2003, she 

suffered another seizure -– this time at work -- and requested 

another week’s worth of leave, which was approved. Works missed 

other days in February, both related and unrelated to her 

disability. Her leave was approved for all of these days. See

J.A. 1683-85 (leave slips with approval signatures of JohnsonBey and Warner).3

 

During the spring and summer of 2003, Works took 

additional leave for issues unrelated to her seizures, but all 

of this leave was also approved by either Warner or Johnson-Bey.

See J.A. 1686-97 (leave slips, all approved by Johnson-Bey or 

Warner). Works also suffered a seizure on July 15, after which 

she missed work from July 15-17, and this leave was approved by 

Warner. See id. at 1694. 

 3 One of these leave slips for February 24 and 25 was 

approved by Warner “pending documentation.” J.A. 1685. The 

record shows that a medical excuse was provided for February 25, 

but it is unclear whether Warner retracted her contingent 

approval. 
8

The June 2003 Memo also outlined performance 

deficiencies during a portion of the second half of Works’s 

probationary period, from March to June 2003. It stated, “Since 

[the March mid-year] progress review, several other issues have 

come to light, which indicate a need for improvement and which 

may impact our decision to retain you beyond your probationary 

period.” J.A. 1701. These issues were as follows:

• Works was resistant to join the typing pool for 

two hours a day, which would have extended the 

opportunity to work overtime on the weekends, 

because Works did not want to work overtime;

• Works wrongly notified Warner that she could be 

released from having her work reviewed because 

her mentor was pleased with her work;

• Works took too long completing a project assigned 

by Johnson-Bey. The June 2003 Memo stated, “Much 

direction is needed to get a completed assignment 

from you. [Y]ou don’t seem to comprehend the 

instructions given.”

Id. at 1701-02. The June 2003 Memo went on to discuss Works’s 

character traits as follows:

Dependability - [I]n addition to your assignments not 

being completed timely, you are frequently absent, 

unaware of your leave balances, and you seem to have 

trouble comprehending the rules for requesting and 

using leave. . . . Your documentation is usually 

vague and doesn’t usually justify total incapacitation 

for duty. In addition, you frequently make incorrect 

entries on the sign-in sheets and you continue to make 

these incorrect entries even after instruction is 

provided. . . . Your sign-in and out times 

frequently disagree and your leave slips often do not 

agree with the entries in the leave column on the 

sign-in sheets[.] You also sign out or annotate your 
9

leave on other employees’ lines, or you sign out, out 

of order.

Application of Time – [Y]ou are often out of the area. 

You have been seen in the halls and at other 

employees’ desks for long periods of time and you 

appear to be having personal conversations rather than 

work-related conversations. You have often been 

observed on the phone for long periods of time, as 

well, having personal conversations. You have also 

been observed sleeping during meetings, most recently 

at the CMA Townhall meeting. 

Id. at 1702. The June 2003 Memo concluded with the statement, 

“Thus far your performance and conduct has considerably 

deteriorated since the last performance discussion and immediate 

and substantial improvement is needed.” Id. 

On July 18, 2003, after a three-day absence due to a 

seizure, Works went to Warner and asked if she would be retained 

beyond her probationary period. Warner told her, if she had to 

make the decision that day, Works would not be retained “because 

she hadn’t made any effort to improve in any of the areas [] 

pointed out [in the June 2003 Memo].” J.A. 1121. After that 

conversation, Works approached the EEOC on July 22, 2003, about 

a possible claim. Then, she asked to meet with Warner and 

Johnson-Bey in order to show them that she was capable of 

performing the job. They agreed.

Warner set up the meeting for the morning of July 25. 

Works attended with a banker’s box full of documents in order to 

justify the work she had been doing; however, upon closer 
10

examination, the box was full of the same two pages copied over 

and over again. When questioned about this, Works “began crying 

and talking about personal problems she was having with her home 

life.” J.A. 1122. 

That afternoon, Works was given a notice of proposed 

removal, with an effective date of two weeks later, August 8, 

2003, about two weeks short of the end of her one-year 

probationary period. The termination notice gave the following 

reasons for termination:

• “repeated failure to complete assignments as 

expected,” which can “largely be attributed to 

your excessive amount of time that you have been 

seen away from your workstation, socializing with 

others, aimlessly walking the halls and spending 

an inordinate amount of time on the telephone for 

personal reasons”; and

• “[I]t is essential that our employees report to 

work regularly and perform their duties. Your 

actions are unacceptable because when you have 

been out on unscheduled leave, management cannot 

depend on you being available to accept and 

perform the assignments expected.”

J.A. 2003.

The following Monday, July 28, 2003, Works returned to 

work and asked Warner for reassignment to a different position. 

Warner referred Works to Joan Stewart-Stevens, Assistant 

Associate Commissioner for Management Operations Support, who 

called a meeting with “all the managers . . . and team leaders,” 

including Warner; Johnson-Bey; Leidig; Kathy Fox, Center 
11

Director; Denise Kendall, Deputy Center Director; Yvonne Curry, 

Team Leader; and Phyllis Branch-McCoy.4 J.A. 1404-05 (the 

“Stewart-Stevens Meeting”). Stewart-Stevens asked all those 

present, “[S]hould this employee be terminated[?]” and “each one 

of them said yes.” Id. at 1405. It is undisputed that Noma 

Carter, one of Works’s project managers, was not present at the 

meeting. Works alleges Carter was deliberately excluded; 

however, Warner testified at the administrative hearing that 

Carter simply “didn’t show up,” and that they obtained Carter’s 

approval for termination the following day. Id. at 1137.5

 

 4 Branch-McCoy’s position is not clear from the 

administrative record.

5 Carter testified at the administrative hearing that she 

was not invited to the Stewart-Stevens Meeting, but that her 

opinion would be that Works should not have been fired. See

J.A. 1481. She also stated at the hearing that after Works was 

notified of her termination, she was “never” asked about Works’s 

performance. Id. at 1470. This is contrary to Warner’s 

testimony: “Bill Johnson-Bey and I met with [Carter] separately 

the next day [after Works was terminated] and asked her what her 

opinion was of Toni’s performance . . . and we asked her if she 

was in agreement with [the termination].” Id. at 1137. Warner 

stated that Carter responded, “[Works] would function probably 

better in a job that was more structured and had more 

supervision” and that Works should not be retained. Id. at 

1137-38.
12

B.

After Works’s contact with the EEOC on July 22, 2003, 

the administrative investigation began. Works requested a 

hearing before an ALJ, and the administrative hearing took place 

during four days in August 2006. The ALJ ruled in favor of the 

SSA, finding the SSA granted the only accommodation Works ever 

sought (taking leave), Works had consistent performance 

problems, and those problems, rather than discrimination or 

retaliation, resulted in her termination. Works appealed to the 

EEOC, and on February 19, 2010, the EEOC affirmed the ALJ’s 

decision. 

Works then filed the instant action in the District of 

Maryland on May 21, 2010. On August 26, 2010, the SSA filed a 

Motion to Dismiss, or Alternatively, for Summary Judgment. 

Because this motion was styled as a motion to dismiss, by 

operation of the District of Maryland’s Local Rules, a 

scheduling order could not be entered -– and discovery could not 

commence -– until the motion was resolved. See D. Md. Local 

Rule 104(4) (“Unless otherwise ordered by the Court or agreed 

upon by the parties, the conference of counsel required by Fed. 

R. Civ. P. 26(f) need not take place and discovery shall not

commence and disclosures need not be made until a scheduling 
13

order is entered.”).6 Works responded to the motion on February 

8, 2011, and requested time to conduct discovery pursuant to 

Rule 56(f) (actually 56(d)).7 Her attorney attached an affidavit 

specifically explaining the discovery needed at the district 

court level and the relevance thereof. See J.A. 1872-73 (the 

“Affidavit”). 

The district court granted the SSA’s motion on March 

29, 2011, without mentioning Works’s discovery request. Works 

then filed a Motion for Reconsideration on April 12, 2011. In 

that motion, she noted that the district court “remained silent” 

on her discovery request, and she argued, “[t]he Court should 

have permitted [her] to conduct discovery before ruling for 

Defendant based on an incomplete factual record.” J.A. 2173. 

The district court denied the Motion for Reconsideration on 

February 3, 2012. As to the discovery request, the district 

court stated only the following:

 6 The operation of this rule can be seen in Young v. United 

States, which states, “Because of the dispositive nature of the 

[motion to dismiss or for summary judgment], it is not 

appropriate at this time to enter a scheduling order that would 

permit discovery to commence.” No. RDB-08-3349, 2009 WL 

2170068, at *1 n.1 (D. Md. Jul. 20, 2009).

7 Rule 56(f) was recodified as Rule 56(d) on December 1, 

2010, without significant substantive change. In her response 

to the SSA’s motion in February 2011, Works inadvertently cited 

to Rule 56(f). For ease of reference, we herein refer to the 

appropriate rule as “Rule 56(d),” regardless of which version 

was in effect at the particular time.
14

[T]his Court does not need to expressly explain its 

reasoning when granting an order that is inconsistent 

with the requested relief. As the Fourth Circuit 

explained in Malbon v. Pa. Millers Mut. Ins. Co., “the 

determination of a motion need not always be expressed 

but may be implied by the entry of an order 

inconsistent with the granting of the relief sought.” 

663 F.2d 936, 939 n.8 (4th Cir. 1980).

Id. at 2274. Works then timely noted this appeal.8

 

II.

Rule 56(d) “require[s] that ‘summary judgment be 

refused where the nonmoving party has not had the opportunity to 

discover information that is essential to his opposition.’” 

Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)); 

see also Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

961 (4th Cir. 1996) (Generally, “summary judgment is appropriate 

only after adequate time for discovery.” (internal quotation 

marks omitted)). The rule “is intended as a safeguard against a 

premature grant of summary judgment . . . thus, [courts] should 

construe the rule liberally[.]” King v. Cooke, 26 F.3d 720, 726 

(7th Cir. 1994); see also Harrods Ltd. v. Sixty Internet Domain 

Names, 302 F.3d 214, 245 n.18 (4th Cir. 2002) (discussing with 

approval sources in favor of applying the rule liberally). Such 

 8 The district court also dismissed a number of Works’s 

claims for failure to exhaust administrative remedies. Works 

does not appeal the judgment as to those claims. 
15

requests should be denied, however, “if the additional evidence 

sought for discovery would not have by itself created a genuine 

issue of material fact sufficient to defeat summary judgment.” 

Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal 

quotation marks omitted). We should not reverse a denial of a 

Rule 56(d) request unless we find “a clear abuse of discretion 

or, unless there is a real possibility the party was prejudiced 

by the denial of the extension.” Id. (internal quotation marks 

omitted). 

III.

A.

In her response to the SSA’s Motion to Dismiss or, 

Alternatively, for Summary Judgment, Works asked the district 

court for a chance to conduct discovery, as she had not yet had 

the opportunity to conduct discovery at all in the district 

court. She explained that she needed documents and deposition 

testimony on “a range of disputed issues,” including:

• “Defendant’s characterization of Plaintiff’s work 

on certain projects”;

• “Defendant’s knowledge that Ms. Works’ medical 

condition affected her work performance such that 

she required a reasonable accommodation”;

• “Defendant’s argument that Ms. Works was not a 

qualified individual with a disability because 

she could not perform the essential functions of 

the job of a Probationary Management Assistant”; 

and
16

• “The specific performance deficiencies Defendant 

asserts justify its termination of Ms. Works.”

J.A. 1835. The Affidavit, which was attached to the response, 

explained that the following evidence needed to be collected:

• “instructions provided to Ms. Works”;

• “correspondence or the details of conversations 

regarding Ms. Works’ performance on those 

projects”;

• “the final version of any projects assigned to 

Ms. Works, as well as drafts of Mr. Works’ work 

on those projects”;

• “medical documentation from the Nurse’s Suite 

. . . as it may give some indication of how Ms. 

Works’ seizure disorder affected her work 

performance and what symptoms she experienced and 

exhibited in the workplace”;

• deposition testimony of Dionne (Harrison) Miller, 

Blas Rueda-Caraballo, Renee M. Moore, John Wargo, 

and/or Shawnte Jordan, “all of whom were 

Probationary Management Assistants either during 

Ms. Works’ tenure at the Agency or shortly after 

her termination. In addition to being 

comparators, these employees possess critical 

information regarding the essential functions of 

the Management Assistant position”;

• deposition testimony of Warner, Johnson-Bey, 

Yvonne Curry, and Noma Carter, “all of whom 

supervised Ms. Works on the various projects at 

issue and can provide insight into her work 

performance”;

• deposition testimony of Denise Kendall, Janet 

Edrington, Kathy Fox, Ethel Maker, “and/or any 

other Agency Employee Relations staff who were 

involved in drafting or have knowledge regarding 

the Termination of Career Conditional Appointment 

issued to Ms. Works on July 25, 2003.”
17

Id. at 1872-73.9

The SSA contends, “because the record in this case 

makes clear that [Works] had every opportunity to discover all 

pertinent facts necessary to her opposition,” and because she 

“failed to demonstrate how any more discovery was ‘essential’ to 

her opposition,” the district court’s tacit denial of her 

request for discovery should be affirmed. Appellee’s Br. 27. 

In support of its position, the SSA references the numerous 

exhibits and pages of testimony from the ALJ hearing available 

to Works and notes that she had ample time at the administrative 

level to collect evidence relevant to her case. 

B.

Rule 56(d) provides, 

If a nonmovant shows by affidavit or declaration that, 

for specified reasons, it cannot present facts 

essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or 

declarations or to take discovery; or

 9 We reject the SSA’s contention that Works waived this

request for discovery because it was “not included in the 

argument section of her summary judgment opposition brief” but 

rather, “tucked . . . in the middle of her recitation of the 

legal standards.” Appellee’s Br. 26. Works squarely presented 

a Rule 56(d) affidavit to the district court, which this court 

has deemed sufficient. See Harrods, 302 F.3d at 244 (“If a 

party believes that more discovery is necessary for it to 

demonstrate a genuine issue of material fact, the proper course 

is to file a Rule 56([d]) affidavit[.]”).
18

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). This court has long held that parties 

wishing to obtain additional discovery must “specifically allege 

why the information sought would have been sufficient to create 

a genuine issue of material fact such that it would have 

defeated summary judgment.” Strag v. Bd. of Trustees, 55 F.3d 

943, 954 (4th Cir. 1995); see also Nguyen v. CAN Corp., 44 F.3d 

234, 242 (4th Cir. 1995) (affirming district court’s denial of 

Rule 56(d) request because Nguyen did not “focus our attention 

on an affidavit presented to the district court that 

particularly specifies legitimate needs for further discovery”). 

In Ingle v. Yelton, this court held that the district 

court abused its discretion in denying Ingle’s Rule 56(d) motion 

in the context of a motion to dismiss, or in the alternative for 

summary judgment. See 439 F.3d 191, 194 (4th Cir. 2006). 

Ingle asked for extra time in order to seek videotape evidence

of a police chase and shooting that left her son dead. This 

evidence was to be used to support Ingle’s theory of the case

with regard to qualified immunity: that the window in her son’s 

car was closed when officers took shots at him. The defendant’s 

theory, in contrast, was that Ingle’s son was aiming his shotgun 

at the officers through an open car window. See id. at 195.

We held the district court abused its discretion in 

failing to grant this request for discovery because it 
19

“seemingly ignored” an earlier request for such evidence, the 

necessary information was “possessed only by her opponent,” and 

“there was a sufficient basis to believe such videos existed, 

and [] this evidence represented Ingle’s principal opportunity 

to contradict the assertion that the district court found 

dispositive[.]” Id. at 196-97.

Like Ingle, here, Works set forth in the Affidavit

legitimate requests for discovery that could very well 

“contradict the assertion[s]” made by the SSA to the district 

court, as explained infra. Furthermore, because certain key 

players in this matter -- employees of the SSA -- did not 

testify at the administrative hearing and were not deposed at 

that level or at the district court level, there is a “real 

possibility that [Works] was prejudiced by the denial” of her 

discovery request. Ingle, 439 F.3d at 195 (internal quotation 

marks omitted).

C.

Works brought three claims under the Rehabilitation 

Act, 29 U.S.C. §§ 701, et seq.10 First, she claimed that the SSA 

 10 Section 504 of the Rehabilitation Act provides, “No 

otherwise qualified individual with a disability in the United 

States . . . shall, solely by reason of her or his disability, 

be excluded from the participation in, be denied the benefits 

of, or be subjected to discrimination under any program or 

activity receiving Federal financial assistance[.]” 29 U.S.C. 

§ 794(a). 
20

discriminated against her based upon her disability (the 

“Discrimination Claim”); second, she claimed that the SSA failed 

to accommodate her disability (the “Accommodation Claim”); and 

third, she claimed that the SSA retaliated against her for 

requesting leave and reassignment (the “Retaliation Claim”). As 

explained below, her specific requests for discovery bear on the 

disputed nature of each of these claims. 

1. 

The Discrimination Claim

The analysis used to determine whether an employer has 

discriminated under the Rehabilitation Act is the same as the 

analysis under the Americans with Disabilities Act (“ADA”). See

Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001). To 

establish a claim of discrimination under the ADA, a plaintiff 

must show she (1) was a qualified individual with a disability; 

(2) was discharged; (3) was fulfilling her employer’s legitimate 

expectations at the time of discharge; and (4) “the 

circumstances of h[er] discharge raise a reasonable inference of 

unlawful discrimination.” Reynolds v. Am. Nat’l Red Cross, 701 

F.3d 143, 150 (4th Cir. 2012) (internal quotation marks 

omitted). The SSA claims discovery on this claim would be 

futile. We disagree.

The parties have agreed that Works has a disability: 

the seizure disorder. As to the other aspect of the first 
21

element, in determining whether a plaintiff is a qualified 

individual, a court should ask whether she is someone who, “with 

or without reasonable accommodation, can perform the essential 

functions of the employment position[.]” 42 U.S.C. § 12111(8). 

A court must decide (1) whether she could perform “functions 

that bear more than a marginal relationship to the job at 

issue,” and (2) if not, whether “any reasonable accommodation by 

the employer would enable [her] to perform those functions.” 

Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994)

(internal quotation marks omitted) (alteration in original). 

The Affidavit asks for deposition testimony of other 

Probationary Management Assistants who were employed either 

during Ms. Works’s tenure at the SSA or shortly after her 

termination. We agree with the Affidavit that “these employees 

possess critical information regarding the essential functions 

of the Management Assistant position,” J.A. 1873, which bears on 

whether Works was a qualified individual. 

Furthermore, there is certainly some dispute as to 

Works’s performance, the employer’s expectations, and the level 

of instruction and training provided to Works. See King v. 

Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (considering whether 

employee was performing to employer’s “legitimate expectations” 

is key to establishing a prima facie discrimination claim). 

Indeed, one of Works’s arguments to the district court was 
22

“[w]hen she tried her best to complete projects successfully, 

she was often prevented from doing so because she was never 

given clear instructions or specific guidance as to what was 

expected of her.” J.A. 1817. Noma Carter also testified, “I 

don’t think” Works “received adequate training.” Id. at 1458. 

To further investigate this claim, Works’s attorney 

explains that he would like to ascertain the instructions

provided to Works for each of the projects the SSA claims she 

failed to complete; correspondence or the details of 

conversations regarding Works’s performance on those projects; 

and the final version of any projects assigned to Works, as well 

as drafts of her work on those projects. We find these requests 

to be essential to Works’s claim.

Likewise, as to whether the circumstances of Works’s

discharge raise a reasonable inference of unlawful 

discrimination, the record needs more development through 

relevant discovery, as stressed in Works’s 56(d) request and the 

Affidavit. Notably, Johnson-Bey -- one of Works’s supervisors 

who approved her leave time, assigned projects to her, oversaw 

those projects, and ultimately participated in the decision to 

uphold her termination -- was never deposed and did not testify 
23

at the administrative hearing.11 His testimony is crucial on 

the issue of Works’s job performance and her termination. Also 

relevant to this inquiry is the testimony of SSA managers Kathy 

Fox and Denise Kendall, who were allegedly present at the 

Stewart-Stevens Meeting. These individuals also did not testify 

at the administrative hearing and were not deposed. 

On this point, the SSA argues “the only perspective 

that is legally relevant is that of the Plaintiff’s supervisors, 

Warner and Johnson-Bey,” and the court should not sit as a 

“‘super-personnel department’” that second-guesses management 

decisions. Appellee’s Br. 22-23 (citing King, 328 F.3d at 149; 

quoting Anderson v. Westinghouse Savannah River Co., 406 F.3d 

248, 272 (4th Cir. 2005)). The SSA also cites King for the 

proposition that “the alleged opinions of [plaintiff’s] 

coworkers as to the quality of [plaintiff’s] work are close to 

irrelevant.” 329 F.3d at 149 (internal quotation marks 

omitted). 

 11 The parties submit that because Johnson-Bey had retired 

from the SSA at the time of the administrative hearing, he was 

not subject to EEOC’s subpoena power. Thus, the only 

opportunity Works had to cross-examine Johnson-Bey was at her 

unemployment insurance appeal hearing, during which she was not 

represented by an attorney. There, the focus was on Works’s 

unemployment benefits and, specifically, whether Works had 

engaged in misconduct disqualifying her from receipt of 

unemployment benefits. And, the cross-examination was 

necessarily limited by the scope of direct examination. 
24

These admonishments do not apply given that here, the 

SSA has admitted, “Warner solicited feedback from coworkers who 

worked with [Works] and she was informed that [Works’s] work 

performance was not acceptable and that [Works] had trouble 

completing virtually every assignment . . . given her.” J.A. 32 

(internal quotation marks omitted). Therefore, Warner’s 

perception was undoubtedly based on the opinions and perceptions 

of Works’s coworkers, which would make deposing those coworkers 

all the more crucial. Furthermore, because the SSA has 

acknowledged that Johnson-Bey’s perspective is “legally 

relevant,” Works should be able to depose him. Appellee’s Br.

22.

2. 

The Accommodation Claim

In order to prevail on a reasonable accommodation 

claim under the Rehabilitation Act, Works would have to prove 

(1) she was an individual with a disability in the name of the 

ADA; (2) the SSA had notice of her disability; (3) with 

reasonable accommodation, Works could perform the essential 

functions of the position; and (4) the SSA refused to make such 

accommodation. See Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th 

Cir. 2001). See also 34 C.F.R. § 104.12(a); 45 C.F.R. 

§ 84.12(a) (“A recipient [of federal financial assistance] shall 

make reasonable accommodation to the known physical . . . 
25

limitations of an otherwise qualified handicapped applicant or 

employee unless the recipient can demonstrate that the 

accommodation would impose an undue hardship on the operation of 

its program[.]”) (internal quotation marks and alterations 

omitted)). 

On this claim, the only accommodation Works sought was 

medical leave to deal with her recurring seizures. As stated 

above, there is evidence yet to be discovered regarding whether 

Works could perform the essential functions of the position, 

even considering her approved leave. This issue should be 

fleshed out with testimony from those individuals whom StewartStevens said participated in the Stewart-Stevens Meeting and who 

were not deposed at the administrative or district court level –

i.e., Warner, Johnson-Bey, Leidig, Kendall, Curry, Fox, and 

Branch-McCoy. Indeed, the Affidavit requests evidence from “any 

. . . agency Employee Relations staff who were involved in 

drafting or have knowledge regarding the Termination of Career 

Conditional Appointment issued to Ms. Works on July 25, 2003.”

J.A. 1873. Works’s project managers could also speak to their 

perceptions of her performance at the time she was taking large 

amounts of leave related to her disability. Medical 

documentation from the Nurse’s Suite –- also requested in the 

Affidavit -– could likewise shed light on if and how Works’s

seizure disorder affected her work performance. 
26

3. 

The Retaliation Claim

In order to prevail on a Rehabilitation Act 

retaliation claim, Works must prove (1) she engaged in a 

protected activity; (2) the SSA took an adverse employment 

action against her; and (3) a causal connection existed between 

the protected activity and the adverse action. Hooven-Lewis, 

249 F.3d at 272-74. If the SSA proffers a legitimate, nonretaliatory reason for the decision, then Works must rebut the 

reason as pretextual. See Brockman v. Snow, 217 F. App’x 201, 

207, 208 n.6 (4th Cir. 2007) (Rehabilitation Act); Yashenko v. 

Harrah’s N.C. Casino Co., 446 F.3d 541, 551 (4th Cir. 2006) 

(Title VII) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 800-06 (1973)).

Again, discovery could aid Works on this claim. What 

is most pertinent to this analysis is the termination notice

given to Works on July 25, 2003. That notice provided only two 

reasons for termination: (1) failure to complete assignments as 

expected, which was “largely . . . attributed to your excessive 

amount of time that you have been seen away from your 

workstation, socializing with others, aimlessly walking the 

halls and spending an inordinate amount of time on the telephone 
27

for personal reasons”; and (2) being absent from work on 

unscheduled leave.12 J.A. 2003. 

Further discovery could help Works to develop her 

theory of pretext. To demonstrate pretext, a plaintiff must 

provide the court with admissible evidence that a defendant’s 

“explanation is unworthy of credence or by offering other forms 

of circumstantial evidence sufficiently probative of [illegal] 

discrimination.” Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 

2004) (internal quotation marks omitted); see also EEOC v. Sears 

Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (“An employer’s 

changing rationale for making an adverse employment decision can 

be evidence of pretext.” (internal quotation marks omitted)). 

First, Warner explicitly stated, “[t]he sole determination to 

fire [Works] was based on performance,” J.A. 1303, despite the 

different reasons set forth in the termination notice, such as 

socializing and talking on the phone.13 Other potential 

 12 At oral argument, the SSA’s counsel stated that the 

banker’s box incident itself could be grounds for dismissal. 

However, management did not mention this incident in its 

termination notice. 

13 Even if these were reasons for her termination, there is 

disputed evidence regarding the time Works spent socializing and 

on personal phone calls, something that could also be developed 

with further discovery. For example, Warner testified at the 

administrative hearing, “[Trevette] [H]ord, Yvonne Curry, 

Phyllis Branch, No[ma] Carter, [and] Bill Johnson-Bey . . . all 

told me that [Works] was on the phone and having a personal 

conversation.” J.A. 1116. However, one of these individuals 

(Continued)
28

evidence could support the pretext argument, including 

information about Noma Carter’s exclusion from the StewartStevens Meeting and the idea that the SSA terminated Works for 

taking leave, while nonetheless admitting, “all of [Works’s] 

leave requests were granted by the [SSA].” Appellee’s Br. 32 

n.3.

D.

Finally, we reject SSA’s argument that because Works 

had a chance to conduct discovery at the administrative level,

she is somehow barred from doing so in federal court. Amirmokri 

v. Abraham, 266 F. App’x 274 (4th Cir. 2008), the case cited by 

the SSA, is inapposite. In that case, “the central participants 

were all deposed.” Id. at 282 (internal quotation marks 

omitted). Here, as mentioned supra, many of the crucial 

decision-makers were not deposed. Moreover, the Supreme Court 

has recognized a federal employee’s right to a trial anew 

following an adverse administrative decision. See Chandler v. 

Roudebush, 425 U.S. 840, 848 (1976) (holding, in the Title VII 

context, “Congress intended to accord federal employees the same 

 

has declared, “[Works] did not engage in extended conversations 

on the telephone. All employees are allowed to make and receive 

telephone calls, and Ms. Works never abused the privilege 

bestowed upon us.” Id. at 1976 (Hord affidavit). Furthermore, 

Carter claimed Works “did not socialize at the workplace any 

more than other employees.” Id. at 1978 (Carter affidavit).
29

right to a trial de novo [following administrative proceedings] 

as is enjoyed by private-sector employees[.]”);14 Massingill v. 

Nicholson, 496 F.3d 382, 384 (5th Cir. 2007) (“Once a federalsector employee exhausts her administrative remedies, she can 

file two types of civil actions: a suit to enforce the final 

administrative disposition, in which the court examines only

whether the agency has complied with the disposition, or de novo 

review of the disposition.” (emphasis added) (footnote 

omitted)). See also Boandl v. Geithner, 752 F. Supp. 2d 540, 

557 (E.D. Pa. 2010) (“While we are entitled to review the 

administrative record, we are also entitled to consider new 

evidence presented by the parties, and are not bound in any way 

by the determinations made by the [administrative review boards] 

below.” (alteration in original)).15

Further, while we are cognizant that parties who are 

“dilatory in pursuing discovery” should not find solace in Rule 

56(d), Harrods, 302 F.3d at 246, we have been presented with no 

 14 Although Chandler addressed Title VII, the Rehabilitation 

Act and the ADA share “standards used to determine whether” a 

violation has occurred, 29 U.S.C. § 794(d), and the ADA, in 

turn, follows the “powers, remedies and procedures” set forth in 

Title VII, 42 U.S.C. § 12117(a). See also Spencer v. Ashcroft, 

147 F. App’x 373, 375 (4th Cir. 2005).

15 This court has also held in an unpublished opinion, 

“[T]he existence of an administrative investigation and record” 

does not “automatically preclude[] the need for discovery.” 

Radi v. Sebelius, 434 F. App’x 177, 179 (4th Cir. 2011).
30

evidence tending to show that Works was dilatory in this manner, 

and the district court certainly made no such finding in its 

implicit denial of Works’s request for discovery. 

IV.

For the foregoing reasons, the district court’s orders 

granting summary judgment to the SSA and denying Works’s motion 

for reconsideration are vacated, and this matter is remanded for 

the district court to grant Works’s request for discovery.

VACATED AND REMANDED