PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LORI RHOADS, 

Plaintiff-Appellant,

v.

FEDERAL DEPOSIT INSURANCE

CORPORATION, in its capacity as

receiver for Standard Federal  No. 98-2374

Savings Bank and Standard Federal

Savings Association,

Defendant-Appellee.

GEORGETOWN APPELLATE LITIGATION

CLINIC,

Amicus Curiae. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Walter E. Black Jr., Senior District Judge.

(CA-94-1548-B)

Argued: October 30, 2000

Decided: July 12, 2001

Before WILKINS and KING, Circuit Judges, and

Frank J. MAGILL, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge King wrote the opinion, in which Judge Wilkins and

Senior Judge Magill joined. 
COUNSEL

ARGUED: Adam Nathan Steinman, Supervising Attorney, Appellate

Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Amicus Curiae. Robert Parker Fletcher,

NIXON PEABODY, L.L.P., Washington, D.C., for Appellee. ON

BRIEF: Lori Denise Rhoads, Appellant Pro Se. Leslie Paul Machado,

NIXON PEABODY, L.L.P., Washington, D.C.; Kathryn R. Norcross,

J. Scott Watson, FEDERAL DEPOSIT INSURANCE CORPORATION, Washington, D.C., for Appellee. Steven H. Goldblatt, Director, Richard D. Watkins, Student Counsel, Appellate Litigation

Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Amicus Curiae. 

OPINION

KING, Circuit Judge: 

Lori Denise Rhoads appeals from the judgment rendered against

her on her claims under the Family and Medical Leave Act, 29 U.S.C.

§§ 2601-2654 ("FMLA"); the employment provisions of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117, 12203

("ADA"); and Maryland state law. The district court granted summary

judgment to the Federal Deposit Insurance Corporation ("FDIC"), in

its capacity as representative of Rhoads’s former employers, on her

ADA claims — for failure to make reasonable accommodations, discriminatory termination, and retaliation — as well as the state law

claims. See Rhoads v. FDIC, 956 F. Supp. 1239 (D. Md. 1997). A

jury subsequently found in the FDIC’s favor on the FMLA claim, see

Order of Judgment, No. B-94-1548 (D. Md. Mar. 4, 1998), and the

court denied Rhoads’s motion for judgment as a matter of law or,

alternatively, for a new trial, see Order, No. B-94-1548 (D. Md. Aug.

12, 1998). As explained below, we affirm the district court in every

respect except for its award of summary judgment on the ADA retaliation claim, which we vacate and remand for further proceedings. 

2 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
I.

A.

Rhoads was hired as a financial analyst in September 1987 by

Standard Federal Savings Bank ("SFSB"). When the bank failed in

October 1992, the Resolution Trust Corporation ("RTC")1 was

appointed as its receiver, and a new federal mutual savings association, Standard Federal Savings Association ("SFSA"), was chartered

with the RTC as its conservator. Although Rhoads’s employment with

SFSB was terminated at its receivership, she was hired simultaneously for the same position with SFSA. 

Rhoads suffers from asthma and related migraine headaches —

conditions exacerbated by exposure to cigarette smoke. After starting

work at SFSB, in the bank’s Gaithersburg, Maryland office, Rhoads

began feeling the negative effects from breathing co-workers’ secondhand smoke. Due to SFSB’s inability to control smoking on the premises, even after the introduction of a countywide smoking ban in

1990, Rhoads periodically sought medical attention for recurring

bouts of bronchitis, pneumonia, severe lung infections, and clustermigraine syndrome. The amount of secondhand smoke in the offices

increased with the arrival of new RTC employees and managers when

the bank became SFSA. Internal memoranda documented the detrimental effects of this smoke on Rhoads’s health. See, e.g., April 27,

1993 Memorandum from Michael O’Hopp, III, J.A. 49 ("The smoking is having a devastating health effect on one of my employees. . . .

Please stop smoking immediately. If not because it is illegal, then out

of professional courtesy and human kindness."). Because of her condition, SFSA officials allowed Rhoads to take lengthy absences from

work. Eventually, in May 1993, O’Hopp, who was then Rhoads’s

supervisor, arranged for her to work at home to avoid exposure to secondhand smoke. 

1The RTC was a federal government instrumentality created by Congress in 1989 to resolve the assets of failed savings and loan institutions.

The FDIC is the statutory successor to the RTC, following its sunset on

December 31, 1995. See 12 U.S.C. § 1441a(m). 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 3
During the time period that she worked at home, Rhoads’s department was transferred to SFSA’s Frederick Operations Center in Frederick, Maryland ("Frederick Center"). In June 1993, SFSA adopted a

smoke-free workplace rule, to take effect on September 1 of that year,

at which time smoking would be banned throughout the Frederick

Center. That July, RTC officials discovered that Rhoads was being

allowed to work at home and, subsequently, asked her to report to the

Frederick Center for work. During meetings there on August 12 and

18, and in telephone conversations and letters, bank officials and

Rhoads debated whether she would work at the Frederick Center,

continue to work at home, or submit the necessary medical certification for disability leave. Ultimately, W. Marshall Jones, SFSA’s

Senior Vice President for Human Resources, informed Rhoads in an

August 25 letter that she should report to work at the Frederick Center

on September 1, to coincide with the date the building was to become

smoke-free. Jones also said the bank would provide an air purifier for

Rhoads’s office. 

Rhoads maintains, however, that she suffered a significant relapse

of asthma and migraine headache symptoms because of her exposure

to cigarette smoke at the Frederick Center during the two August

meetings there. She saw four doctors during the period of August 12-

31 and sought treatment in a hospital emergency room on August 21.

Rhoads was given a variety of medications at varying dosages, and

the treatments for asthma apparently compounded her migraine headaches. According to Rhoads, on August 31, one of her physicians,

Alan S. Chanales, M.D., instructed her not to report to work the following day or for the rest of the week. 

Thus, instead of reporting to the Frederick Center on September 1,

Rhoads called James Pavlonnis, her immediate supervisor at the time,

to relay her doctor’s advice and postpone her expected return to work

until the following week. On September 7, Rhoads informed Pavlonnis that she remained ill, her physician instructed her not to report to

work that week, and she was using sick leave. Pavlonnis, SFSA’s

Executive Vice President and Chief Financial Officer, telephoned

Rhoads on September 9 and insisted that she provide a doctor’s note

immediately. At Rhoads’s request, Dr. Chanales faxed Pavlonnis a

letter that same day. This note, dated September 2, had been composed in response to SFSA’s earlier suggestion that Rhoads submit

4 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
medical documentation supporting a need for disability leave; without

mentioning Rhoads’s current condition, it indicated that she must

work in a smoke-free environment or be allowed such leave. Pavlonnis consequently called Rhoads on September 10 and asked her if she

was requesting disability leave. Rhoads — who had not seen Dr. Chanales’s letter — replied that she did not know and did not feel that

she had to decide because she was using accrued sick leave. 

That same day, in a letter from Jones, Rhoads was threatened with

disciplinary action if she did not report to work by September 13.2

When Rhoads did not do so, she received a "final warning" letter from

Jones, advising her that she had been placed on probation due to her

"refusal to report to work the past eight business days[,]" and that her

employment would be terminated if she failed to report on September

14. J.A. 269. The plan to terminate Rhoads under these circumstances

was approved by a committee of SFSA officials. 

Following receipt of the September 13 letter, Rhoads informed

Jones by phone and by fax that she remained too ill to work and that

her doctor would be sending SFSA further documentation of her condition within a few days. Indeed, on September 13, Dr. Chanales

composed a letter stating: 

[Rhoads] continues to require treatment for her asthmatic

disease which has been exacerbated by exposure to smoke

on your premises. This treatment has been complicated by

the development of severe headaches as a side effect of

some of the medications that are being used to treat her

asthma. She still is not in good enough shape to return to

work, and I certainly continue to maintain that she should

not be allowed in your work place unless it is certifiably free

of cigarette smoke. 

J.A. 273. Dr. Chanales did not, however, fax the letter to SFSA until

September 16 — one day after senior officials in the RTC’s Atlanta

office authorized Rhoads’s termination. A termination letter from

2An attorney for Rhoads responded with a letter requesting that she be

granted disability leave. The letter also warned that SFSA might be violating the ADA, FMLA, and local laws. See infra Part IV.B.1. 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 5
Jones was hand-delivered to Rhoads during the evening of September

15, informing her that she had been fired for refusing to return to

work for ten consecutive days "[w]ithout supervisory approval and in

direct defiance of my repeated instructions." J.A. 349. The letter

explained: 

In light of the accommodations we have made for any health

condition you may have, your continued refusal to report to

work cannot be tolerated. 

Contrary to the assertions in your letter of September 13,

1993, the notes from your physicians do not state that you

are sick and cannot or should not be working. The notes

state unequivocally that you can work if provided a smokefree environment. As such, we have done everything your

physicians have requested and more. We allowed you to

work at home while smoking was still permitted at the Frederick Operations Center. On September 1, 1993, however,

the Frederick Operations Center became a no-smoking

building. We even provided a further accommodation for

you beyond that your physicians requested, placing an air

purifier in your work area. Nevertheless, you have continued

to refuse to report to work. 

Id. The FDIC, on the one hand, maintains that the termination was

justified by Rhoads’s excessive unexcused absenteeism. Rhoads, on

the other hand, contends that SFSA should have at least waited for Dr.

Chanales’s letter to arrive before making any decision to fire her.3

3The evidence reflects, however, that even if SFSA had received Dr.

Chanales’s letter prior to terminating Rhoads, the bank would have taken

the same action, because Rhoads’s supervisors had reason to disbelieve

that she was sick. For example, during the time period culminating in

Rhoads’s termination — September 1-15, 1993 — she failed to answer

her home telephone several times when SFSA officials called her; she

did, however, return calls when paged on her beeper. Indeed, during the

period of August 14-27, when Rhoads insists she was ill due to cigarette

smoke exposure during the August 12 and 18 meetings at the Frederick

Center, she used two vacation days but otherwise recorded working 7.5

hours per day on her time sheets. Moreover, the evidence adduced at trial

showed that, during the weeks leading up to September 1, Rhoads moved

apartments, drove to and attended a half-day orientation session at the

University of Maryland in College Park, and signed up for full-time day

classes at the university, scheduled to begin September 7. 

6 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
B.

Upon issuance of a "Notice of Right to Sue" letter by the Equal

Employment Opportunity Commission, Rhoads filed this action in a

timely manner on June 7, 1994, in the District of Maryland. In her

amended complaint against RTC, as conservator for SFSA and

receiver for SFSB, Rhoads raised claims under the FMLA, ADA,

Montgomery County (Maryland) Human Rights Law, the Maryland

Wage and Collection Law, and Maryland state common law. RTC

was subsequently replaced as defendant by the FDIC. The district

court possessed jurisdiction over this action pursuant to 12 U.S.C.

§§ 1441a(l)(1) and 1819(b) (actions in which the FDIC and its predecessor the RTC are parties); 29 U.S.C. § 2617(a) (claims under the

FMLA); 42 U.S.C. § 12117 (claims under the ADA); and 28 U.S.C.

§ 1367(a) (supplemental jurisdiction over state law claims). 

The FDIC sought summary judgment on all of Rhoads’s claims,

and Rhoads filed a motion for summary judgment on her FMLA

claim and on an affirmative defense raised by the FDIC regarding

damages. On February 28, 1997, the district court granted summary

judgment for the FDIC on Rhoads’s ADA and state law claims, but

denied the FDIC’s motion for summary judgment on Rhoads’s FMLA

claim. The court also denied Rhoads’s motion for summary judgment

in its entirety. The jury trial on the FMLA claim was held from February 23 through March 4, 1998, at which time the jury returned a verdict for the FDIC and the court entered final judgment. Rhoads

subsequently filed a motion for judgment as a matter of law, pursuant

to Rule 50(b) of the Federal Rules of Civil Procedure, or a new trial,

pursuant to Rule 59(a). The court denied the motion and soon after

granted leave to Rhoads’s attorney to withdraw from the case. 

Rhoads filed a pro se notice of appeal on September 9, 1998. A

month later, she filed a motion for relief from judgment in the district

court, which the court stayed pending resolution of this appeal. On

February 16, 2000, after Rhoads and the FDIC had filed their appellate briefs, we assigned amicus curiae to brief and argue in support

of Rhoads’s positions. We possess jurisdiction over this appeal under

28 U.S.C. § 1291. 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 7
II.

We have carefully considered Rhoads’s contentions that she was

entitled to judgment as a matter of law, or at least a new trial, on her

claim under the FMLA, 29 U.S.C. §§ 2601-2654, and that the district

court erroneously granted summary judgment to the FDIC on her

three claims under the employment provisions of the ADA, 42 U.S.C.

§§ 12101-12117, 12203, for failure to make reasonable accommodations, discriminatory discharge, and retaliation. With regard to her

FMLA claim, the district court required Rhoads to prove to the jury

that she suffered from an FMLA-qualifying "serious health condition." See 29 U.S.C. § 2611(11). The court also refused to award

Rhoads judgment as a matter of law on this issue based on her assertion that the FDIC waived the right to contest it because of SFSA’s

failure to pursue the FMLA’s "second opinion" procedures. See id.

§ 2613(c)-(d). Finding no error, we affirm the district court’s decisions on these points. The FMLA claim is examined more thoroughly

in Part III. 

As for the three ADA claims, the district court granted summary

judgment on each of them to the FDIC. The court determined that

Rhoads failed to adduce sufficient evidence to prove that she was

"disabled" within the meaning of the ADA and, thus, could not support her claims for failure to make a reasonable accommodation and

discriminatory discharge. See 42 U.S.C. § 12102(2). The court further

concluded, with regard to the accommodation claim, that the accommodation sought by Rhoads — the right to take sick leave whenever

her asthma and migraines prevented her from working — was "facially unreasonable." Rhoads, 956 F. Supp. at 1248. Moreover, with

regard to the discriminatory discharge claim, the court ruled that,

because of Rhoads’s excessive absenteeism, she had "not offered sufficient evidence to establish she was meeting her [employer’s] legitimate expectations." Id. at 1249. Because we agree that Rhoads failed

to make a sufficient showing of disability, we affirm the district

court’s award of summary judgment to the FDIC on the failure to

accommodate and discriminatory discharge claims, without unnecessarily reaching their other elements. These claims are discussed in

Part IV.A. 

8 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
The ADA retaliation claim, however, did not require proof of a disability. The district court granted summary judgment on this claim,

concluding that Rhoads failed to establish evidence to rebut the

FDIC’s legitimate, nondiscriminatory reason for her discharge —

excessive unexcused absenteeism — under a burden-shifting proof

scheme. We disagree with this determination and conclude that

Rhoads not only proffered enough evidence to survive summary judgment under the burden-shifting scheme, but she also established sufficient direct and indirect evidence of retaliation as an alternative

avenue of proof. Therefore, we reverse the award of summary judgment to the FDIC on the ADA retaliation claim, and we remand it for

further proceedings. This claim is addressed in Part IV.B.4

III.

We first assess the district court’s denial of Rhoads’s motion for

judgment as a matter of law or, alternatively, for a new trial, on her

claim that SFSA unlawfully interfered with her exercise of FMLA

rights by firing her. See 29 U.S.C. § 2615(a)(1) (deeming it "unlawful

for any employer to interfere with, restrain, or deny the exercise of

or the attempt to exercise" an employee’s FMLA rights).5 The jury

concluded that she did not suffer from an FMLA-qualifying "serious

health condition." See id. § 2611(11). Rhoads contends, however, that

she should not have been required to prove that she was afflicted with

4We have also reviewed the other contentions advanced by Rhoads on

appeal, including, inter alia, that the district court erroneously granted

summary judgment to the FDIC on her state law claims. Rhoads also

challenges the award of summary judgment to the FDIC on the issue of

back pay; the district court concluded that the FDIC’s back pay liability,

if any, was severed after February 1995, when SFSA was sold and

Rhoads’s job was accordingly eliminated. We find no merit in Rhoads’s

assertions of error on these various points and, thus, affirm the district

court’s determinations of them. See generally Rhoads, 956 F. Supp.

1239. 

5Rhoads also contends that the district court erred by denying her pretrial motion for summary judgment on this claim. However, "this Court

will not review, under any standard, the pretrial denial of a motion for

summary judgment after a full trial and final judgment on the merits."

Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g Corp., 51 F.3d

1229, 1237 (4th Cir. 1995). 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 9
such a condition and, regardless, the FDIC waived any right to contest

this issue because SFSA failed to follow the FMLA’s "second opinion" procedures upon receipt of her physician’s certification of her

ailments. See id. § 2613(c)-(d). 

Thus, Rhoads insists, she established as a matter of law that she

suffered from an FMLA-qualifying condition, and this issue was

improperly submitted to the jury. We review de novo the denial of

Rhoads’s request for judgment as a matter of law, see Deans v. CSX

Transp., Inc., 216 F.3d 398, 400 (4th Cir. 2000), and we review the

denial of her request for a new trial for abuse of discretion, see Freeman v. Case Corp., 118 F.3d 1011, 1014 (4th Cir. 1997) (acknowledging that "an error of law constitutes an abuse of discretion"). 

A.

The FMLA is intended "to balance the demands of the workplace

with the needs of employees to take leave for eligible medical conditions and compelling family reasons." Hukill v. Auto Care, Inc., 192

F.3d 437, 441 (4th Cir. 1999) (citing 29 U.S.C. § 2601(b)). It entitles

eligible employees6 to take up to twelve weeks of unpaid leave in any

twelve-month period for qualifying medical or family reasons, see 29

U.S.C. § 2612(a)(1), and ensures that these employees will be

restored to their same or an equivalent position upon returning to

work, see id. § 2614(a)(1). A qualifying medical reason is defined as

6An "eligible employee" is one "who has been employed for at least

12 months by the employer with respect to whom leave is requested . . .

for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A). At the summary judgment stage, the district court concluded that Rhoads had worked for

SFSA for the requisite amount of time, even though she had been

employed there for just under 12 months as of her termination. The court

so ruled because Rhoads’s combined length of service to SFSB and

SFSA exceeded 12 months, and because SFSA was a "successor in interest" to SFSB. See id. § 2611(4)(A)(ii)(II) (defining an "employer" as

"any successor in interest of an employer"); 29 C.F.R. § 825.107 (1993)

(providing eight factors for evaluating whether an entity qualifies as a

successor in interest). The jury later found that Rhoads worked at least

1,250 hours during the relevant period. This issue, Rhoads’s status as an

eligible employee, is not raised on appeal. 

10 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
"a serious health condition that makes the employee unable to perform the functions of the position of such employee." Id.

§ 2612(a)(1)(D). A "serious health condition" is defined, in part, as an

illness or impairment that requires continuing treatment by a health

care provider, see id. § 2611(11)(B), and that also involves a "period

of incapacity requiring absence from work . . . of more than three calendar days," 29 C.F.R. § 825.114(a)(2) (1993).7

7The Secretary of Labor possesses authority to promulgate regulations

implementing the FMLA. See 29 U.S.C. § 2654. Interim regulations took

effect on August 5, 1993, while final regulations took effect on February

6, 1995. See Sims v. Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d

1253, 1257 n.2 (N.D. Cal. 1998). Because Rhoads’s termination and the

related events occurred in September 1993, the interim regulations apply

in this case. We defer to the Secretary’s interpretation of the FMLA, as

expressed in the interim regulations, pursuant to Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Miller v. AT&T Corp., ___ F.3d ___, Nos. 00-1277, 00-1928, 2001 WL

475934, at *8 (4th Cir. May 7, 2001). Further, we recognize that "the

expanded final regulations, to the extent they merely amplify the language of the interim regulations, may provide valuable guidance to us as

we apply the law to the facts here." Thorson v. Gemini, Inc., 205 F.3d

370, 376 (8th Cir. 2000). 

While the interim regulations neither expressly include or exclude

asthma and migraines as FMLA-qualifying conditions, the final regulations identify these ailments as conditions that potentially qualify for

FMLA leave. See 29 C.F.R. § 825.114(a)(2)(iii)(C) (2000) ("A chronic

serious health condition is one which . . . [m]ay cause episodic rather

than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy,

etc.)."); id. § 825.114(c) (specifying "headaches other than migraine" in

a list of conditions that ordinarily would not merit FMLA leave (emphasis added)). Moreover, the final regulations provide: 

Absences attributable to incapacity under paragraphs (a)(2)(ii) or

(iii) qualify for FMLA leave even though the employee . . . does

not receive treatment from a health care provider during the

absence . . . . For example, an employee with asthma may be

unable to report for work due to the onset of an asthma attack or

because the employee’s health care provider has advised the

employee to stay home when the pollen count exceeds a certain

level. 

Id. § 825.114(e). We recognize that these final regulations would have

had no effect on this case, because the jury determined, without reaching

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 11
An employee is mandated to provide notice to her employer when

she requires FMLA leave. Where the need for leave is unforeseeable,

"an employee should give notice to the employer . . . as soon as practicable under the facts and circumstances of the particular case." Id.

§ 825.303(a). At bottom, "[a]n employee shall provide at least verbal

notice sufficient to make the employer aware that the employee needs

FMLA-qualifying leave, and the anticipated timing and duration of

the leave." Id. § 825.302(c). The employee, however, "need not

expressly assert rights under the FMLA or even mention the FMLA,

but may only state that leave is needed . . . ." Id. The employer should

inquire further to ascertain whether it is FMLA leave that is being

sought and to obtain further details of this leave. See id.

An employer has discretion to require that an employee’s leave

request "be supported by a certification issued by the health care provider of the . . . employee[.]" 29 U.S.C. § 2613(a). "An employer

must give written notice of a requirement for medical certification in

a particular case . . . ." 29 C.F.R. § 825.305(a) (1993) (internal citation omitted). This certification "shall be sufficient" if it articulates:

the date on which the serious health condition commenced; its probable duration; the "appropriate medical facts," within the health care

provider’s knowledge, regarding this condition; and a statement that

the employee is unable to perform the functions of her position. 29

U.S.C. § 2613(b)(1)-(3), (4)(B). The employer must inform the

employee of the consequences of failure to provide this certification,

see 29 C.F.R. § 825.305(c) (1993), and the employer must allow the

employee at least fifteen calendar days to submit it, see id.

§ 825.305(a). If the employer views the certification as incomplete,

the employer "shall advise" the employee of this belief and "provide

the employee a reasonable opportunity to cure any . . . deficiency."

Id. § 825.305(c). 

the question of continuing treatment, that Rhoads simply did not experience a period of incapacity requiring absence from work for more than

three days. However, the fact that an employee suffers from the specific

conditions of asthma and migraines does not mean that she could never

qualify for FMLA leave. 

12 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
If, as in this case, the employer questions the soundness of the certification, the FMLA sets forth procedures for obtaining second, and

third, opinions. It provides that "the employer may require, at the

expense of the employer, that the eligible employee obtain the opinion of a second health care provider" and, if the first and second judgments differ, that "the employer may require, at the expense of the

employer, that the employee obtain the opinion of a third health care

provider[.]" 29 U.S.C. § 2613(c)(1), (d)(1) (emphasis added).8 The

8The statute sets forth the following procedures for obtaining the second and third opinions: 

(c) Second opinion 

(1) In general 

In any case in which the employer has reason to doubt the validity of the certification provided . . . the employer may require,

at the expense of the employer, that the eligible employee obtain

the opinion of a second health care provider designated or

approved by the employer concerning any information certified

under subsection (b) of this section for such leave. 

(2) Limitation 

A health care provider designated or approved under paragraph

(1) shall not be employed on a regular basis by the employer. 

(d) Resolution of conflicting opinions 

(1) In general 

In any case in which the second opinion described in subsection

(C) of this section differs from the opinion in the original certification provided under subsection (a) of this section, the

employer may require, at the expense of the employer, that the

employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee

concerning the information certified under subsection (b) of this

section. 

(2) Finality 

The opinion of the third health care provider concerning the

information certified under subsection (b) of this section shall be

considered to be final and shall be binding on the employer and

the employee. 

29 U.S.C. § 2613(c)-(d). 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 13
relevant interim regulation similarly provides that, where an employer

doubts the accuracy of a certification, the employer "may require the

employee to obtain a second opinion at the employer’s expense. . . .

If the opinions of the employee’s and the employer’s designated

health care providers differ, the employer may require the employee

to obtain certification from a third health care provider, again at the

employer’s expense." 29 C.F.R. § 825.307(a), (c) (1993) (emphasis

added). The final regulations contain substantially similar language.

See 29 C.F.R. § 825.307(a)(2), (c) (2000). 

B.

Our inquiry with regard to Rhoads’s FMLA claim is two-fold and

focuses on: (1) whether it was appropriate for the district court to

require Rhoads to prove that she suffered from a serious health condition in order to prevail on her FMLA interference claim, see 29

U.S.C. § 2611(11); and (2) whether Rhoads established an FMLAqualifying condition as a matter of law in light of SFSA’s failure to

pursue the second opinion procedures, see id. § 2613(c)-(d). For purposes of our discussion, we assume, without deciding, that Rhoads

proffered adequate notice to invoke FMLA protections and submitted

sufficient medical certification of her condition. See 29 C.F.R.

§ 825.303(a) (1993); 29 U.S.C. § 2613(a), (b)(1)-(3), (4)(B); infra

note 9. 

1.

First, the district court correctly required Rhoads to prove that she

was afflicted with an FMLA-qualifying condition, because otherwise

she did not have any right under the Act with which her employer

could have interfered. See Diaz v. Fort Wayne Foundry Corp., 131

F.3d 711, 713 (7th Cir. 1997) (holding that FMLA interference suits

are to be resolved "by asking whether the plaintiff has established, by

a preponderance of the evidence, that he is entitled to the benefit he

claims"); see also Rankin v. Seagate Techs., Inc., 246 F.3d 1145,

1148 (8th Cir. 2001) (requiring plaintiff in FMLA action to prove a

serious health condition pursuant to a three-prong objective test); cf.

Miller v. AT&T Corp., ___ F.3d ___, Nos. 00-1277, 00-1928, 2001

WL 475934 (4th Cir. May 7, 2001) (affirming summary judgment for

plaintiff on question of defendant’s liability under FMLA where

14 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
plaintiff established, inter alia, that she suffered from a qualifying

condition). 

Rhoads suggests, instead, that once she met the FMLA’s notice and

certification requirements, she was undisputedly entitled to leave

whether or not she suffered from a serious health condition. She relies

on a Department of Labor publication for the proposition that "an ‘eligible’ employee who has met FMLA’s notice and certification

requirements . . . may not be denied FMLA leave." United States

Department of Labor, Employment Standards Administration, Wage

and Hour Division, FMLA Compliance Guide (emphasis in original).

This guide includes a disclaimer, however, recognizing that it is provided merely as a public service, and that "[t]he Federal Register and

the Code of Federal Regulations remain the official source for regulatory information published by the Department." Id. Without other

support, Rhoads’s assertion — that adequate notice and certification

alone entitled her to FMLA leave — must fail.9

9The parties disagree over whether Rhoads even rendered sufficient

information to put SFSA on notice that she might qualify for FMLA

leave. Rhoads contends that she not only provided adequate notice via

her September 1, 7, and 13 conversations with SFSA officials, but she

also proffered ample certification of her condition within fifteen days of

the commencement of her absence, by way of Dr. Chanales’s September

2 and 13 letters, despite SFSA’s failure to make the requisite written

request for this certification. Thus, Rhoads avers, she is entitled to judgment as a matter of law on the notice issue. The FDIC, to the contrary,

asserts that Rhoads provided only meager information to her supervisor

that was insufficient to invoke the FMLA, and even Dr. Chanale’s September 13 letter was too ambiguous to justify FMLA leave. 

Due to the format of the special verdict form, the jury never reached

the notice issue. That is, Question 2, parts (a) through (c), addressed

whether Rhoads suffered from a serious health condition, while Question

3 encompassed whether she met the FMLA’s notice obligations. Once

the jury determined in Question 2(a) that Rhoads did not encounter a

period of incapacity requiring at least a three-day absence from work,

and thus that she was not afflicted with an FMLA-qualifying condition,

the jury was directed to end its deliberations without addressing further

questions on the verdict form. See J.A. 2031-34. 

Because we conclude that the jury was entitled to find that Rhoads did

not suffer from an FMLA-qualifying condition, the notice issue is renRHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 15
2.

Next, we consider whether Rhoads established a serious health

condition as a matter of law based on SFSA’s failure to follow the

FMLA’s second opinion procedures. See 29 U.S.C. § 2613(c)-(d). On

the one hand, Rhoads maintains, inter alia, that to hold otherwise

would: undermine the FMLA’s procedures for assessing the validity

of a leave request; reward miscreant employers; and place employees

in need of FMLA leave in the intolerable situation of having to fear

that, years down the road, a jury might disbelieve their doctor’s opinion. Rhoads relies, in part, on Sims v. Alameda-Contra Costa Transit

District, 2 F. Supp. 2d 1253, 1263 (N.D. Cal. 1998) (holding that if

an initial medical certification "sufficiently establishes . . . a serious

health condition, [the employer], having failed to exhaust the second

and third-opinion process, is not entitled to challenge that medical

finding now"), and the district court’s decision in Miller v. AT&T, 60

F. Supp. 2d 574, 580 (S.D. W. Va. 1999) (citing Sims for the proposition that "[a]n employer who wishes to contest the validity of a medical certification must use the second-opinion procedures of § 2613(c)-

(d)").10 Significantly, the court in Sims concluded that the second and

third opinion provisions in the FMLA are ambiguous and, thus, it

undertook to examine the policies underlying the Act, its legislative

history, and its structure and internal logic. See Sims, 2 F. Supp. 2d

at 1260. 

dered moot. That is, even assuming that Rhoads provided sufficient

notice of her purported need for leave, she was not actually entitled to

it, because she was not afflicted with a serious health condition within

the meaning of the FMLA. 

10We affirmed the district court’s decision in Miller on other grounds.

We noted, however, that a second opinion would have been of no use in

that case. In Miller, the plaintiff sought leave for a severe bout with the

flu. Rather than doubting that the plaintiff had the flu and was unable to

work, the defendant questioned whether she had received treatment on

two or more occasions and whether the flu was an FMLA-covered illness. See Miller, ___ F.3d at ___, 2001 WL 475934, at *10 n.13. In this

case, conversely, Rhoads’s employer did doubt that she was ill and

unable to work. Thus, a second opinion might have been useful, if not

required. 

16 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
The FDIC, on the other hand, relies on the Eighth Circuit’s determination that "[t]he language of § 2613(c)(1) . . . is merely permissive[.]" Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858, 860

(8th Cir. 2000). That court concluded, accordingly, that the FMLA

does not require "an employer to obtain a second opinion or else

waive any future opportunity to contest the validity of the certification." Id.

We agree with the Eighth Circuit’s assessment in Stekloff. In doing

so, we recognize that "[u]nder the most basic canon of statutory construction, we begin interpreting a statute by examining the literal and

plain language of the statute." Carbon Fuel Co. v. USX Corp., 100

F.3d 1124, 1133 (4th Cir. 1996). The FMLA provides only that an

employer "may" seek a second, or third, opinion if it questions the

validity of an employee’s proffered medical certification of her condition. See 29 U.S.C. § 2613(c)(1), (d)(1); see also 29 C.F.R.

§ 825.307(a), (c) (1993) (relevant regulation using same terminology,

i.e., "may"). Because the term "may" is permissive, the plain language

of the statute indicates that an employer who questions the validity of

a certification has the option of seeking a second and third opinion,

without being required to do so. Moreover, the plain language of the

Act does not suggest that an employer must pursue these procedures

or be forever foreclosed from challenging whether an employee suffered from a serious health condition; and nothing in the legislative

history of the FMLA explicitly supports that interpretation. See Carbon Fuel, 100 F.3d at 1133 ("Absent explicit legislative intent to the

contrary, the statute should be construed according to its plain and

ordinary meaning."); see also Sims, 2 F. Supp. 2d at 1261 (discussing

what the FMLA’s legislative history "suggests," without concluding

that Congress made its intent clear with regard to the second opinion

issue). 

This construction of the Act does not mean that there are not potential pitfalls for an employer who chooses not to pursue a second opinion. For example, in Thorson v. Gemini, Inc., 205 F.3d 370, 381-82

(8th Cir. 2000), a precursor to Steckloff, the Eighth Circuit affirmed

a grant of summary judgment against an employer who failed, as in

this case, to seek even initial certification of the plaintiff’s purported

serious health condition. While the plaintiff’s position was supported

by contemporaneous notes from her physician indicating that she was

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 17
not to work, the employer had to rely on a physician’s evaluation

made months after the plaintiff was terminated and a psychologist’s

evaluation of the plaintiff two years later. See id. at 382. Under these

particular facts, the court concluded that the employer could not show

"that there remain[ed] a genuine issue of material fact on the question

of Thorson’s capacity to perform her job." Id.

A critical distinction between this case and the Eighth Circuit’s

decision in Thorson is that, in the latter, there was no evidence independent of the defense’s belated evaluations of the plaintiff to indicate

that she had been misleading her employer about her health condition.

In this case, however, Rhoads’s employer had immediate reason to

believe that she was not really sick. See supra note 3. This evidence,

contrasted with the contemporaneous opinion of Rhoads’s physician,

created a genuine issue of material fact for the jury. Indeed, prior to

trial, the district court refused to grant summary judgment to either

party, because of the existence of this genuine issue of material fact.

Upon hearing the evidence, the jury concluded that Rhoads did not

suffer from an FMLA-qualifying condition. For the reasons discussed,

Rhoads is not now entitled to judgment as a matter of law or a new

trial merely because her employer failed to pursue the FMLA’s second and third opinion procedures. 

IV.

Rhoads also maintains that the district court erroneously granted

summary judgment to the FDIC on her claims under the ADA. We

also review de novo this award of summary judgment, "viewing the

facts and the inferences to be drawn therefrom in the light most favorable to the nonmovant." Riddick v. Sch. Bd., 238 F.3d 518, 522 (4th

Cir. 2000). "Summary judgment is appropriate only ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law.’" Id. (quoting Fed. R. Civ. P. 56(c)). 

A.

Rhoads’s claims under the ADA for unlawful termination and failure to make a reasonable accommodation both require a showing that

18 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
she was "disabled" within the meaning of the ADA. See, e.g., Haulbrook v. Michelin North America, Inc., ___ F.3d ___, No. 00-1546,

2001 WL 558152, at *5 (4th Cir. May 24, 2001); Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999).11 The ADA

defines a "disability," in part, as "a physical or mental impairment that

substantially limits one or more of the major life activities of such

individual[.]" 42 U.S.C. § 12102(2)(A).12 "Substantially limits"

means, inter alia, "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or duration

under which the average person in the general population can perform

that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii) (2000).

Examples of "major life activities" are "caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working." Id. § 1630.2(i). 

1.

Rhoads maintains that when she suffered the symptoms of asthma

and migraine headaches, she was, at times, unable to work, leave her

home, care for herself, or perform tasks requiring concentration. Her

health conditions, Rhoads avers, also limited her ability to breathe,

think, and sleep. Though Rhoads suffered from asthma as an adoles11In a wrongful discharge case under the ADA, a plaintiff makes out

a prima facie case by demonstrating that "(1) he is within the ADA’s protected class; (2) he was discharged; (3) at the time of his discharge, he

was performing the job at a level that met his employer’s legitimate

expectations; and (4) his discharge occurred under circumstances that

raise a reasonable inference of unlawful discrimination." Haulbrook, ___

F.3d at ___, 2001 WL 558152, at *5. 

In a failure to accommodate case, a plaintiff establishes a prima facie

case by showing "(1) that he was an individual who had a disability

within the meaning of the statute; (2) that the [employer] had notice of

his disability; (3) that with reasonable accommodation he could perform

the essential functions of the position . . .; and (4) that the [employer]

refused to make such accommodations." Mitchell, 190 F.3d at 6. 

12"Disability" under the ADA and "serious health condition" under the

FMLA are distinct concepts that require different analyses. See 29 C.F.R.

§ 825.702(b) (2000). 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 19
cent, her symptoms had been in remission from childhood through the

time she began working for SFSB in 1987. One of her physicians, Dr.

Chanales, concluded that Rhoads’s "asthma was exacerbated by her

exposure to cigarette smoke at work." J.A. 416. She was, however,

able to work in a smoke-free environment. Indeed, once Rhoads

began working at home in May 1993, she was able to perform all of

her job responsibilities and assignments. Dr. Chanales explained why

he recommended that this arrangement continue: 

[W]hat I suggested is that the company allow her to work

at home. Because if she were not exposed to the cigarette

smoke, then at that point, she would be able to carry on.

Asthma is not something that is a permanently crippling disease. Obviously, we can manage asthma. Many asthmatics

work, but they can’t work in a place where they get sick. 

J.A. 816. Although Rhoads was sometimes exposed to cigarette

smoke outside the workplace — such as in shopping malls and restaurants — she would quickly leave those establishments once she

noticed the preliminary signs of exposure, e.g., a stuffy nose, sore

throat, and tight chest. Moreover, prior to her employment with SFSB

and SFSA, Rhoads had engaged in physical activities including bicycling and ballet dancing. 

2.

a.

The district court concluded, first, that Rhoads did not establish

that her ability to work was substantially limited. The court relied, in

part, on our decision in Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir.

1994), a case remarkably similar to this one, in which the plaintiff, an

employee of the Virginia Department of Transportation ("VDOT"),

maintained that her tobacco smoke allergy substantially limited her

ability to work.13 In Gupton, the plaintiff asserted that her employer

violated her rights by failing to provide a smoke-free workplace. See

13Gupton involved a claim under the Rehabilitation Act of 1973, 29

U.S.C. § 794, whose relevant provisions parallel those of the ADA. See,

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

20 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
id. at 204. We held that, in order to make the required showing that

she was disabled, the plaintiff "had to show not merely that her

allergy made her ‘incapable of satisfying the singular demands of a

particular job,’ but that it ‘foreclose[d] generally [her opportunity to

obtain] the type of employment involved.’" Id. at 205 (quoting Forrisi

v. Bowen, 794 F.2d 931, 934, 935 (4th Cir. 1986)) (alterations in original). Moreover, following the district court’s ruling on summary

judgment in this case, the Supreme Court issued its decision in Sutton

v. United Air Lines, Inc., 527 U.S. 471, 492 (1999), holding that "[t]o

be substantially limited in the major life activity of working, . . . one

must be precluded from more than one type of job, a specialized job,

or a particular job of choice." 

We must accordingly agree with the district court that Rhoads has

failed to make a sufficient showing that she was substantially limited

in her ability to work, where she has established only that she was

unable to function in one particular smoke-infested office. As the

court explained, "there appears to be no reasonable material or relevant factual dispute concerning [Rhoads’s] ability to perform her job

requirements at a very high level, provided that she is given the

opportunity to perform her work in a smoke-free atmosphere . . . ."

Rhoads, 956 F. Supp. at 1246. Therefore, Rhoads has not shown, as

required, that she is generally foreclosed from jobs utilizing her skills

because she suffers from smoke-induced asthma and migraines. Cf.

Gupton, 14 F.3d at 205 ("While [Gupton] did introduce evidence that

her allergy to tobacco smoke made her unable to continue in her current position working as a highway utilities specialist in the VDOT’s

Fair Ridge office, she presented no evidence that her allergy foreclosed her generally from obtaining jobs in her field.").14

14According to Rhoads, the FDIC "appear[s] to suggest that the only

place [she] would likely encounter [secondhand smoke] was in [the

SFSA] offices as the result of their continued violations of established

smoking bans" — a "ludicrous" assertion. Appellant’s Br., at 44 (emphasis added). The problem for Rhoads, however, is that she does not

attempt to show why this suggestion is preposterous. If, for example,

Rhoads had shown that she was generally foreclosed from a broad class

of jobs utilizing her skills because of a widespread tolerance of interoffice smoking, she would have bolstered her case. 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 21
b.

The district court next addressed Rhoads’s contention that other

major life activities were also substantially affected by her impairments. The court concluded that, because the substantial limitations

on the additional activities cited by Rhoads — including the ability

to breathe — all were triggered solely by her workplace environment,

the proper inquiry "in these limited circumstances" remained focused

on her ability to work. See Rhoads, 956 F. Supp. at 1247 (citing for

comparison Mobley v. Bd. of Regents, 924 F. Supp. 1179, 1187 (S.D.

Ga.) (rejecting claim that asthma presents an "obvious" impairment to

breathing when symptoms would arise only in one workplace),

vacated, 26 F. Supp. 2d 1374 (S.D. Ga. 1996) (reopening the case for

consideration of further evidence)). 

In support of the district court’s conclusion, the FDIC additionally

relies on Keck v. New York State Office of Alcoholism & Substance

Abuse Services, 10 F. Supp. 2d 194, 199 (N.D.N.Y. 1998) (concluding that the failure of the plaintiff to allege specific instances of difficulty breathing outside of her workplace, due to her sensitivity to

tobacco smoke and perfume, "argues strongly for considering her disability as one limiting the activity of work only"), and Benson v. Lawrence Livermore National Laboratory, No. C95-2746 FMS, 1997 WL

651349, at *4 (N.D. Cal. Oct. 14, 1997) (relying on the district court’s

decision in this case, Rhoads, to conclude that the plaintiff’s ADA

claim failed as a matter of law where she proffered no evidence "to

show that her symptoms were triggered by anything but her work

environment"), aff’d, 163 F.3d 605 (9th Cir. 1998) (unpublished table

decision). In another similar case, Homeyer v. Stanley Tulchin Associates, Inc., the Seventh Circuit reversed the district court’s dismissal

This brings us to another of Rhoads’s contentions, "that an employer

who is not willing to provide reasonable accommodation to its employees, cannot simply point to other employers who are willing to provide

such accommodation, and establish proof that a disabled individual is not

precluded from other employment ‘in general.’" Appellant’s Br., at 44.

It does not escape us that the failure of an employer to enforce a smoking

ban is hardly commendable. That failure does not mean, however, that

the employer is liable for its actions, or inactions, under the ADA. 

22 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
of the plaintiff’s ADA claim based on substantial limitation of her

ability to breathe, where the plaintiff had alleged that her breathing

was generally impaired by a respiratory condition. See 91 F.3d 959,

962 n.1 (7th Cir. 1996). The court recognized that the plaintiff did not

claim that it was only at work that tobacco smoke aggravated her condition, and that there might be many other places where her ailment

combined with secondhand smoke limited her ability to breathe. See

id. The court suggested, however, that if the plaintiff could not prove

after discovery that it was not her workplace alone that aggravated her

condition, then judgment against her would be appropriate. See id.

We accordingly hold that, where an ADA plaintiff asserts that she

is disabled based on a substantial limitation of a major life activity

other than working, but her condition is aggravated solely by her

workplace environment, her claim must be assessed under our foreclosure test for a limitation on working. See Gupton, 14 F.3d at 205.

In this case, the record shows that, following adolescence, Rhoads

functioned normally until 1987, when her employment with SFSB

and SFSA caused her to be exposed to secondhand smoke in the

workplace. Once she was permitted to work at home, her condition

improved and her job performance was unimpeded. There simply is

no genuine issue of material fact with regard to the conclusion that

any substantial limitations on Rhoads’s major life activities — working, breathing, or any others cited by Rhoads — were solely the result

of exposure to secondhand smoke in her workplace. Thus, we review

her claim as one based only on a substantial limitation on the ability

to work, and we apply the Gupton foreclosure test. As already discussed above, Rhoads’s claim fails under its requirements. 

Though Rhoads contends that application of the foreclosure test to

claims based on activities other than working contradicts our own precedent, we find her assertion unavailing. Rhoads relies on our decision in Williams v. Channel Master Satellite Systems, Inc., for the

proposition that "the general foreclosure test applies only to claims

brought under the major life activity of working." 101 F.3d 346, 349

(4th Cir. 1996). In Williams, the plaintiff, who had been directed by

her doctor not to lift more than twenty-five pounds following an automobile accident, asserted that she was substantially limited in the

major life activities of working and lifting. Id. at 348, 349. We concluded that the district court erred, in relevant part, by suggesting that

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 23
the foreclosure test must be used to determine if a major life activity

other than working — in that case, lifting — is substantially limited.

Id. at 349. Our Williams decision is distinguishable from this case,

however, because, unlike Rhoads’s condition, the Williams plaintiff’s

lifting limitation was not created or aggravated solely by her work

environment. If, in this instance, Rhoads had shown that she was

debilitated by exposure to secondhand smoke outside of the workplace, then the proper inquiry would have been whether her ability to

breathe, etc., was "significantly restricted" as compared to the breathing ability of the "average person in the general population." 29

C.F.R. § 1630.2(j)(1)(ii) (2000). However, because Rhoads established that her abilities to breathe and engage in other life activities

were limited only by her exposure to tobacco smoke in the workplace,

the proper inquiry is whether, pursuant to the foreclosure test, she was

substantially limited in her ability to work. 

3.

Rhoads maintains, as alternative bases for establishing a "disability" under the ADA, that she was "regarded as" being disabled, see

42 U.S.C. § 12102(2)(C), and that she had a "record of disability," see

id. § 12102(2)(B). First, in order to demonstrate that she was regarded

as disabled, Rhoads was required to show that: (1) her employer "mistakenly believe[d] that [she] has a physical impairment that substantially limits one or more major life activities," or (2) her employer

"mistakenly believe[d] that an actual, nonlimiting impairment substantially limits one or more major life activities." Haulbrook, ___

F.3d at ___, 2001 WL 558152, at *5 (citing Sutton, 527 U.S. at 489).

In Haulbrook, the plaintiff contended that his employer, Michelin,

regarded him as disabled because of his breathing difficulties arising

from workplace chemical exposures. See id. at ___, 2001 WL 558152,

at *5. We determined that Haulbrook could not establish that he was

regarded as disabled based on a substantial limitation on his ability to

work, because his employer "believed Haulbrook could continue to

perform his previous job, but simply believed that he might have to

be assigned to perform the same work in a different building." Id. at

___, 2001 WL 558152, at *6. Moreover, we concluded that Haulbrook could not prove that he was regarded as disabled based on a

substantial breathing limitation, because "the company’s internal

24 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
communications simply reflect uncertainty about Haulbrook’s condition." Id. at ___, 2001 WL 558152, at *7. 

For similar reasons, we agree with the district court’s conclusion

in this case that Rhoads failed to show that her employer erroneously

believed that she was substantially limited in her ability to work,

because "the record indisputably reveals SFSA thought the plaintiff

was capable of performing her job in a smoke-free environment[.]"

Rhoads, 956 F. Supp. at 1247. Furthermore, we conclude that Rhoads

cannot establish that her employer mistakenly believed that she was

substantially limited in other major life activities, such as breathing,

as the evidence shows, at best, that SFSA officials knew she suffered

from smoke-induced asthma and migraines, but doubted her declarations pertaining to the severity of her condition. 

Next, in order to prove that she had a record of disability, Rhoads

was required to establish that she had "a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k)

(2000). Contrary to Rhoads’s assertion that she had a record of disability, the undisputed evidence reflects that, until starting work for

SFSB, Rhoads had not suffered the effects of asthma and migraines

since childhood, and she had been able to engage in activities like

bicycling and ballet dancing. Thus, Rhoads’s contention falters for

lack of substantiation. 

In summary, Rhoads has failed to establish that she was "disabled"

within the meaning of the ADA, either because of being afflicted with

an actual disability, being regarded as disabled, or having a record of

disability. Therefore, we must affirm the district court’s award of

summary judgment to the FDIC on her ADA claims for failure to

make a reasonable accommodation and discriminatory discharge. 

B.

Finally, Rhoads contends that her termination constituted an act of

retaliation in violation of the ADA. This basis of recovery does not

require that the claimant be disabled. Rather, the ADA provides that

"[n]o person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 25
chapter or because such individual made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a) (emphasis added). In

order to prevail on a claim of retaliation, a plaintiff must either offer

sufficient direct and indirect evidence of retaliation, or proceed under

a burden-shifting method. See Brinkley v. Harbour Recreation Club,

180 F.3d 598, 606-07 (4th Cir. 1999) (outlining the alternative avenues of proof by which an aggrieved employee can prove a Title VII

violation); Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir.

2001) (recognizing that "[b]ecause the ADA echoes and expressly

refers to Title VII, and because the two statutes have the same purpose — the prohibition of illegal discrimination in employment —

courts have routinely used Title VII precedent in ADA cases"). 

On the one hand, "an employee may utilize ‘ordinary principles of

proof using any direct or indirect evidence relevant to and sufficiently

probative of the issue.’" Brinkley, 180 F.3d at 607 (quoting Tuck v.

Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992)). To avoid summary

judgment, "the plaintiff ‘must produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative

force to reflect a genuine issue of material fact.’" Id. (quoting Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988)) (alteration

in original). "‘What is required is evidence of conduct or statements

that both reflect directly the alleged discriminatory attitude and that

bear directly on the contested employment decision.’" Id. (quoting

Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)). 

On the other hand, under the burden-shifting method of proof, to

establish a prima facie case of retaliation, a plaintiff must show that:

(1) she engaged in a protected activity; (2) her employer acted

adversely against her; and (3) her protected activity was causally connected to her employer’s adverse action. See Haulbrook, ___ F.3d at

___, 2001 WL 558152, at *8; Beall v. Abbott Labs., 130 F.3d 614,

619 (4th Cir. 1997). The employer then has the burden "to rebut the

presumption of retaliation by articulating a legitimate nonretaliatory

reason for its actions." Beall, 130 F.3d at 619. If the employer does

so, the plaintiff "must demonstrate that the proffered reason is a pretext for forbidden retaliation." Haulbrook, ___ F.3d at ___, 2001 WL

558152, at *8. The plaintiff always bears the ultimate burden of per26 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
suading the trier of fact that she was the victim of retaliation. See

Beall, 130 F.3d at 619. 

1.

The dispute culminating in this termination came on the heels of

Rhoads’s consultation with an attorney and threats of legal action

against the bank, in addition to her numerous requests over the years

for accommodation of her health conditions (including enforcement

of the smoking ban). Rhoads alleges that, during the August 18, 1993

meeting with SFSA officials, including Jones: 

I told them that I felt I was being backed into a corner, and

had consulted a lawyer as to my rights. Mr. Jones became

upset and responded that I would regret that I had done so.

J.A. 1021. Then, in an August 20 letter, Rhoads’s lawyer requested

that Rhoads be permitted to continue working at home until the nosmoking policy at the Frederick Center proved successful, recognizing that the new policy was untested and "Standard Federal’s record

in enforcing existing smoking regulations does not inspire confidence." J.A. 217. In further correspondence of September 13 — following Jones’s September 10 letter threatening disciplinary action

against Rhoads — her attorney admonished that "this situation raises

the issue of whether Standard Federal is living up to its obligations

under the Americans with Disabilities Act and similar local laws" and

warned that SFSA might be violating the FMLA. J.A. 267. In

response, Jones wrote in his September 13 letter to Rhoads that, so

long as she was an SFSA employee, the bank would communicate

with her and not her lawyer. Jones subsequently recommended firing

Rhoads and served on the SFSA committee that considered the matter, though he abstained from actually voting on her termination. 

SFSA’s attendance policy provided the following guidelines for

dealing with excessive absenteeism, to be monitored in twelve-month

cycles: after four to five absences, a written warning is issued; after

six to eight absences, the employee is placed on probation; and, where

there are "over ten" absences, termination procedures may be initiated. See J.A. 113-14. In this case, Rhoads maintains that SFSA officials both began termination proceedings and approved her discharge

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 27
before she accumulated more than ten absences. Moreover, SFSA’s

own documents show that "there are situations where employees have

been absent more than ten days and have not been terminated." J.A.

292. Relatedly, the SFSA sick leave policy directed employees, when

they were too ill to work, to notify their supervisors as soon as possible. For absences exceeding five consecutive workdays, employees

were mandated to provide a doctor’s note. For absences of more than

ten days, employees faced termination unless they requested disability

leave and submitted supporting medical documentation. In practice,

SFSA was known to allow employees to document their illnesses

after they returned to work from sick leave, although Rhoads was

denied this privilege.

2.

The district court concluded, without considering the first avenue

of proof (sufficient direct and indirect evidence of retaliation), that

Rhoads failed to establish a claim under the second avenue of proof

(the burden-shifting method). According to the court, even assuming

that Rhoads made out a prima facie case of retaliation, she failed to

demonstrate that the FDIC’s proffered reason for her termination —

her excessive, unexcused absenteeism — was untrue and, thus, a pretext for discrimination. That is, the court determined that Rhoads was

merely the target of "normal sanctions for misconduct" from which

she could not be shielded by pursuing a discrimination suit. See

Rhoads, 956 F. Supp. at 1250 (quoting Ross v. Communications Satellite Corp., 759 F.2d 355, 366 (4th Cir. 1985)). Moreover, the court

was impressed by evidence that, even if Jones admonished Rhoads

that she would be sorry for consulting a lawyer, he attempted to

accommodate her after making that statement and abstained from voting for her termination. And the court noted that, though "SFSA managers . . . testified that SFSA may have applied its sick leave policy

more stringently against Rhoads than other employees, all included

the important statement that the disparity in Rhoads’s treatment . . .

was due to her lengthy prior absences[.]" Id. at 1251. This testimony

was, the court concluded, "a completely adequate rationalization in

the view of this Court." Id.

Rhoads insists, however, that she made a sufficient showing of

retaliation under both avenues of proof. First, she maintains that she

28 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION
proffered adequate direct evidence by way of Jones’s statement that

she would regret consulting a lawyer. According to Rhoads, this statement was made on August 18, 1993. Two days later, her attorney submitted a letter requesting that she be permitted to continue working

at home until the new no-smoking policy at the Frederick Center was

deemed effective. Then, on September 13 — two days before

Rhoads’s termination — her lawyer corresponded with SFSA again,

this time warning that the bank might be violating the ADA and other

laws. Jones soon after recommended Rhoads’s discharge and served

on the committee that dealt with it, even if he did abstain from voting

on this matter. 

Moreover, Rhoads contends that she made a sufficient showing of

retaliation under the burden-shifting method of proof to survive summary judgment. In support of her prima facie case, Rhoads avers that:

she engaged in protected activity by, inter alia, requesting accommodations for her purported disability, such as enforcement of the smoking ban and permission to continue working at home; SFSA acted

adversely against her by terminating her; and her protected activity

was causally connected to her discharge, as evidenced by their close

temporal proximity. To rebut the FDIC’s explanation that Rhoads was

fired for excessive unexcused absenteeism, she proffered evidence

that SFSA sick leave policies were applied more stringently to her

than other employees, as well as the direct evidence already discussed

above. 

We conclude that this direct evidence of a stated purpose to discriminate (Jones’s purported threat to Rhoads regarding her consultation with a lawyer) coupled with the related indirect evidence (the

timing of her attorney’s subsequent letters to SFSA in relation to the

bank’s decision to fire her, and Jones’s involvement in that decision),

create a genuine issue of material fact with regard to Rhoads’s retaliation claim. Additionally, we agree with Rhoads that summary judgment was inappropriate under the burden-shifting analysis, and that

she established a sufficient prima facie case of discrimination. See,

e.g., Carter v. Ball, 33 F.3d 450, 460, (4th Cir. 1994) (recognizing

that, where a plaintiff shows that he was discharged soon after engaging in protected activity, the evidence is sufficiently suggestive of

retaliatory motive to at least make out a prima facie case of unlawful

discrimination). 

RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION 29
In so holding, we find ourselves in disagreement with the district

court over whether there is adequate evidence to rebut the FDIC’s

legitimate, non-discriminatory reason for Rhoads’s discharge. Though

the district court was persuaded that no reasonable fact finder could

conclude that Rhoads was the victim of retaliation, this conclusion

was reached by improperly drawing inferences in favor of the FDIC.

See, e.g., Rhoads, 956 F. Supp. at 1251 ("Jones, rather than harassing

Rhoads, appears to have tried to accommodate[ ] her wishes and to

have abstained from voting for her termination. In those circumstances, there is a strong inference that Jones had no discriminatory

animus against Rhoads."). At the summary judgment stage, the evidence must be viewed in the light most favorable to Rhoads. See Riddick, 238 F.3d at 522. Viewed in the proper light, the record

establishes that once Rhoads failed to heed Jones’s warning not to

consult an attorney, she was terminated, purportedly for excessive

unexcused absenteeism, even though her fellow employees had not

been discharged for the same conduct. Cf. Baird v. Rose, 192 F.3d

462, 468 (4th Cir. 1999) (concluding that the plaintiff’s factual assertions were adequate to state a discrimination claim where the evidence showed, inter alia, that an absenteeism policy used to exclude

plaintiff from a school choir had not been uniformly applied). While

SFSA officials attempt to justify this inconsistent treatment based on

Rhoads’s lengthy prior absences, they fail to acknowledge that, in the

months prior to September 1, 1993, Rhoads had been working at

home by mutual agreement with a bank supervisor. Although Rhoads

may not ultimately prevail on her retaliation claim, there is certainly

sufficient evidence to overcome the FDIC’s motion for summary

judgment. 

V.

For all of the foregoing reasons, we reverse the district court’s

award of summary judgment to the FDIC on Rhoads’s retaliation

claim under the ADA, but we affirm the court’s determinations of the

remainder of her claims. See Rhoads v. FDIC, 956 F. Supp. 1239 (D.

Md. 1997); Order of Judgment, No. 5-94-1548 (D. Md. Mar. 4, 1998);

Order, No. B-94-1548 (D. Md. Aug. 12, 1998).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

30 RHOADS v. FEDERAL DEPOSIT INSURANCE CORPORATION