UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1548

PHILLIP L. COCHRAN,

Plaintiff - Appellant,

v.

ERIC H. HOLDER, JR., Attorney General in his official 

capacity,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. James C. Cacheris, Senior 

District Judge. (1:06-cv-01328-JCC-TRJ)

Argued: May 10, 2011 Decided: June 21, 2011

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Phoebe Leslie Deak, LAW OFFICE OF LESLIE DEAK, 

Washington, D.C., for Appellant. Ian James Samuel, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

ON BRIEF: Tony West, Assistant Attorney General, Marleigh D. 

Dover, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; 

Neil H. MacBride, United States Attorney, Alexandria, Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

This appeal arises out of a federal employee’s claim of 

disability discrimination filed pursuant to the Rehabilitation 

Act of 1973 (the “RA”), 29 U.S.C. § 791 et seq. PlaintiffAppellant Phillip Cochran (“Cochran”), a former Deputy United 

States Marshal (“DUSM”), appeals the district court’s grant of 

summary judgment to the United States Marshals Service (“USMS”) 

on his claims that the USMS discriminated against him based on a

hearing disability. For the following reasons, we affirm.

I.

As this is an appeal from a grant of summary judgment, we 

present the facts in the light most favorable to the appellant. 

Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009). 

A.

Cochran served as a DUSM from 1986 to 1993. DUSMs’ primary 

mission is “to provide for the security” of judicial personnel. 

28 U.S.C. §566(a). Their responsibilities generally include 

protecting witnesses, providing safe transportation and handling 

of prisoners, and apprehending fugitives. To help ensure the 

agents’ safe and effective performance of these duties, the USMS

imposes a demanding set of medical fitness requirements. Of 

particular relevance at the time of Cochran’s retirement was the 

agency’s hearing standard. DUSMs were required to “be able to 
3

hear [a] whispered voice at 15 feet with each ear.” J.A. 29. 

Significantly, DUSMs had to meet the minimum hearing requirement

without the use of a hearing aid. This was due to the risk of 

hearing aids being “knocked out during a struggle, not being 

worn by the individuals when they should be,” or not being 

“tuned or adjusted properly.” J.A. 290-91. 

In November 1992, following a required periodic medical 

examination at work, Cochran learned that he suffered from

hearing loss which kept him from satisfying the USMS’s hearing 

standards and thereby disqualified him from service. 

Audiologist Andrea McDowell specifically reported that Cochran’s 

“test results revealed a moderate sloping to severe 

sensorineural hearing loss bilaterally.” J.A. 310. For further 

testing, Cochran was referred to Dr. Mark Winter, an 

otolaryngologist, who reported to the USMS in February 1993 that 

Cochran suffered a more “severe level of hearing loss” in the 

high frequencies, although his “binaural hearing loss would be 

less than 10%” overall “due to the better hearing in the lower 

frequencies.” J.A. 317. Cochran’s high frequency hearing loss 

was “consistent with his history of noise exposure,” and 

manifested itself in an inability to “hear an ambulance easily 

while driving to the scene of an investigation” and a difficulty 

hearing “people in background noise.” J.A. 316. 
4

When Cochran was later asked in a sworn deposition whether 

his “hearing trouble [was] giving [him] any problems on a dayto-day basis” as of his 1992 hearing examinations, he answered 

“[a]bsolutely not.” J.A. 254. He testified that he had 

previously been fitted for hearing aids in 1989, but did not 

wear them. Cochran gave contradictory explanations for not 

wearing his hearing aids, saying at one point that it was 

because he “didn’t need them” and “didn’t have any problems 

doing [his] job,” J.A. 98, but also saying that they were not 

“effective,” J.A. 326. 

On March 23, 1993, the USMS informed Cochran that his 

hearing loss “present[ed] a significant risk” to him and others 

in the work environment, and recommended he “contemplate 

voluntary disability retirement.” J.A. 320. The Service 

explained that if Cochran chose not to retire, it was “prepared 

to propose [his] removal based on medical unfitness.” Id. On 

April 5, 1993, Cochran advised the USMS that he had opted for

voluntary disability retirement. In his application for 

disability retirement, Cochran stated that his hearing loss 

prevented him from performing his duties as a DUSM and that 

continued exposure to loud noise would put him at risk of losing 

“all of [his] hearing.” J.A. 32. His disability retirement was 

granted and became effective June 1993. 
5

In December 1994, more than a year after Cochran’s 

disability retirement took effect, the USMS Director announced 

the agency’s contemplation of a change to the hearing standards 

which would allow the use of hearing aids during DUSM medical 

testing. In light of this proposed change, Cochran contacted 

the USMS Director in a January 1995 letter requesting 

reinstatement. The USMS responded that the proposals to the 

medical standards were still under review but that it would 

consider Cochran’s request once the medical standards were 

finalized. 

Shortly thereafter, Cochran made an additional, verbal 

request for reinstatement on the ground that his hearing had 

recovered. Because the relevant regulations did not provide for 

immediate reinstatement once an employee had been away from his 

job for more than one year, the USMS construed this 

communication as a request to be placed on the Reemployment 

Priority List (“RPL”) via the Department of Justice’s Priority 

Placement and Referral System (“PPRS”).1

 1 As of 1995, the relevant regulation provided that “A[n] . 

. . employee . . . separated because of a compensable injury or 

disability . . . who has fully recovered more than 1 year after 

compensation began is entitled to be placed on the RPL.” 5 

C.F.R. § 330.204(a) (1995).

 The agency responded to 

Cochran in a letter explaining that, in order to place him on 

the list, it needed “a written request,” “an Office of Workers’ 
6

Compensation Programs [OWCP] report or other evidence showing 

[Cochran was] recovered,” and a completed “registration form for 

the PPRS.” J.A. 374. The record “provides no indication that 

[Cochran] completed any of the paperwork necessary for 

reinstatement.” J.A. 125. Instead, in September 1995, Cochran 

filed a formal administrative complaint with the USMS’s equal 

employment officer alleging discriminatory discharge and seeking 

immediate reinstatement. He explained that placement on the RPL 

was “not what [he] want[ed].” J.A. 383. 

B.

Cochran’s case followed a lengthy administrative path that 

we summarized in our prior decision, Cochran v. Holder, 564 F.3d 

318, 320 (4th Cir. 2009). After being denied administrative 

relief, Cochran filed a civil complaint in federal court. He

alleged two counts of employment discrimination under the RA. 

First, he claimed that his voluntary retirement in 1993 

constituted a constructive discharge because the USMS terminated 

him “solely because of his disability and/or perceived 

disability,” and that the USMS failed to provide him with a 

reasonable accommodation in lieu of retirement. J.A. 21-22. 

Second, Cochran claimed that the USMS impermissibly “refused” 

his requests for reinstatement in 1995, and that its refusal to 

immediately reemploy him either because its policy regarding 
7

hearing aids was changing or because his hearing had recovered, 

also constituted discrimination. J.A. 22-23. 

The USMS responded to the filing of Cochran’s civil 

complaint with a motion to dismiss the complaint as untimely, 

which the district court granted. Cochran, 564 F.3d at 320. We 

reversed and remanded for further proceedings. Id. at 325. 

Following additional discovery on remand, the district 

court granted summary judgment to the USMS, concluding that 

Cochran was not “disabled” within the meaning of the RA. J.A. 

39. The court specifically found that Cochran was not 

substantially limited in the major life activities of hearing or 

working, that there was no record of his disability, and that he 

was not regarded as disabled by the USMS. The court also 

concluded that Cochran was not a “qualified individual” for the 

position of a DUSM, and that he was not eligible for 

reinstatement. J.A. 45-46, 54.

Cochran moved for reconsideration on the basis of newly 

discovered evidence. The district court, construing the motion

as one for relief from the judgment under Fed. R. Civ. P. 60(b) 

so as to render it timely, denied the motion on the ground that 

Cochran had failed to establish the existence of “extraordinary 
8

circumstances” warranting such relief. J.A. 57, 67. This 

appeal followed.2

II.

On appeal, Cochran first disputes the district court’s 

determination that he was not “disabled” under the RA in 1993 or 

1995 and that his claims of discrimination therefore failed. We 

review the district court’s grant of summary judgment de novo, 

viewing the facts in the light most favorable to Cochran, and 

drawing all reasonable inferences in his favor. See Lettieri v. 

Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007). Summary 

judgment is appropriate if the record shows “there is no genuine 

 2 The government argues that the bulk of this appeal is not 

properly before us because the district court abused its 

discretion in finding that Cochran demonstrated the “excusable 

neglect” necessary to extend the deadline for filing a notice of 

appeal under Fed. R. App. P. 4(a)(5). Cochran responds that the 

government is precluded from advancing its argument because it 

failed to file a cross appeal, which is required for an appellee 

to argue for the reversal of a motion to extend the deadline to 

file an appeal. Assuming, without deciding, that the 

government’s claim is properly before us, we nevertheless find 

it unavailing. We review the district court’s grant of a filing 

extension for abuse of discretion. Thompson v. E.I. DuPont de 

Nemours & Co., Inc., 76 F.3d 530, 532 (4th Cir. 1996). Under 

this deferential standard, we find that the district court’s 

determination that excusable neglect existed in this case is 

supportable. In particular, the record reflects that Cochran’s 

attorney suffered a debilitating condition requiring major 

surgery that left her unable to work during the time the notice 

of appeal should have been filed. See Plaintiff’s Motion for 

Extension of Time to File Notice of Appeal, 06-cv-1328, Doc. No. 

81 (E.D. Va. April 12, 2010). 
9

dispute as to any material fact and that the [USMS] is entitled 

to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A.

We begin by addressing Cochran’s claim that the USMS 

discriminated against him with respect to his voluntary 

retirement in 1993. To establish a prima facie case, a 

plaintiff must first show he was “an individual with a 

disability under the RA.”3

 3 A plaintiff may bring a claim under the RA either in the 

form of a “failure to accommodate” claim or a “disparate 

treatment” claim. Throughout these proceedings, Cochran has 

attempted to allege both types of claims. For either claim, 

however, the first step in our analysis is identical: the 

plaintiff must establish that he was a qualified individual with 

a “disability” within the meaning of the Act. Rhoads v. 

F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001); Hooven-Lewis, 

249 F.3d at 269.

 Id. at 269; see also Pollard v. 

High’s of Balt., Inc., 281 F.3d 462, 467 (4th Cir. 2002) (noting 

that the plaintiff bears the burden of demonstrating his 

disability). The standards used to determine whether an 

employer has discriminated under the RA are the same standards 

applied under the Americans with Disabilities Act of 1990 

(“ADA”). Hooven-Lewis, 249 F.3d at 268; see also 29 C.F.R. 

§ 1614.203(b). Under both the RA and the ADA, a plaintiff can 

make the requisite showing of a disability in one of three ways: 

(1) by demonstrating he has “a physical or mental impairment 

that substantially limits one or more of [his] major life 
10

activities,” (2) by revealing “a record of such an impairment,” 

or (3) by proving he is “regarded as having such an impairment.” 

29 C.F.R. § 1630.2(g)(1); see also id. § 1614.203(b). 

As an initial matter, we address Cochran’s argument that 

the standards announced in Toyota Motor Manufacturing v. 

Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines, 

Inc., 527 U.S. 471 (1991), for determining whether an individual 

is “disabled” “should only have limited applicability to this 

case.” Appellant’s Br. at 19. As Cochran’s briefing 

emphasizes, Congress amended the ADA in 2008 to correct what it 

viewed as an overly restrictive interpretation of the statute’s 

terms that had been adopted by the Supreme Court in Toyota and 

Sutton. See ADA Amendments Act of 2008, Pub. L. No. 110-325 

(“ADAAA”). The ADAAA made it easier for a plaintiff to 

demonstrate his disability under the RA. In light of these 

changes, Cochran argues that we should “subordinate” the Toyota

and Sutton decisions to earlier court rulings that employ a more 

lenient standard. Appellant’s Br. at 21.

In order to do as Cochran asks, we would need to find that 

the ADAAA applies retroactively. While we have yet to rule on 

this issue, all circuits to consider the question have found 

that the ADAAA does not apply retroactively. See, e.g., 

Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164 

(9th Cir. 2009) (holding that the ADAAA does not apply 
11

retroactively and collecting cases from the D.C., Fifth, Sixth, 

and Seventh Circuits reaching the same conclusion). Indeed, 

“absent clear congressional intent favoring such a result,” we 

may not apply statutes retroactively. Landgraf v. USI Film 

Prods., 511 U.S. 244, 280 (1994); see also Chambers v. Reno, 307

F.3d 284, 288 (4th Cir. 2002). The ADAAA provides that “[t]his 

Act and the amendment made by this Act shall become effective on 

January 1, 2009.” ADAAA § 8, 122 Stat. at 3559. Far from 

demonstrating a clear retroactive intent, the amendment evinces 

a prospective intent with its delayed effective date. We 

therefore follow our sister circuits in concluding that the 

ADAAA does not apply retroactively. This conclusion forecloses 

Cochran’s argument that we should “subordinate” the holdings of 

Toyota and Sutton to the amendments and apply a more relaxed 

standard for purposes of this appeal. 

1.

We turn now to whether Cochran has raised genuine issues of 

fact as to whether he was actually disabled, regarded as 

disabled, or had a record of disability at the time of his 

retirement. We begin by considering if, under the first 

disability formulation enumerated in the RA, Cochran was 

actually disabled. We can find that he has met his burden on 

this point only if he has adduced sufficient evidence to 

demonstrate that when he applied for voluntary retirement in 
12

1993, he had a “physical or mental impairment” that

“substantially limit[ed]” a “major life activit[y].” 29 C.F.R. 

§ 1630.2(g)(1)(i). 

The parties agree that hearing is a major life activity

contemplated by the Act, see id. at § 1630.2(i)(1)(i), and that 

Cochran’s hearing was at least somewhat impaired.4

The district court relied on three pieces of evidence to 

find that Cochran could not make out a prima facie case that his 

partial hearing loss severely restricted the major life activity 

of hearing. First, when asked in a deposition about his own 

 They 

disagree, however, as to whether his hearing loss “substantially 

limited” his hearing. The Supreme Court clarified in Toyota

that “substantially” sets a high bar: “an individual must have 

an impairment that prevents or severely restricts the individual 

from” performing a major life activity. Toyota, 534 U.S. at 198 

(emphasis added). Medical diagnoses alone cannot demonstrate 

substantiality; instead, a plaintiff must offer “evidence that 

the extent of the limitation caused by their impairment in terms 

of their own experience is substantial.” Id. (internal 

quotations and alterations omitted) (emphasis added). 

 4 The district court also analyzed whether Cochran’s hearing 

loss might significantly limit the major life activity of 

“working” and concluded that it did not. However, Cochran’s 

briefing on appeal focuses only on the activity of “hearing.” 

We therefore limit our analysis to the impairment of that 

activity.
13

experience and whether his hearing was “giving [him] any

problems on a day-to-day basis” as of his 1992 hearing tests, 

Cochran replied “[a]bsolutely not.” J.A. 254. Second, the 

otolaryngologist’s February 1993 report found that Cochran’s 

hearing loss was “less than 10%.” J.A. 317. Finally, although 

Cochran had been fitted for hearing aids in 1989, he chose not 

to wear them because he “didn’t need them.” J.A. 98. 

On appeal, Cochran argues that the district court ignored 

evidence in the record that created genuine issues of material 

fact as to the degree of his hearing impairment and whether it 

qualified as “substantially limiting.” For example, as we have 

noted, Cochran also testified that he did not wear his hearing 

aids because they were not “effective,” J.A. 326, and that the 

type of digital hearing aid that corrected for his particular 

type of hearing loss was unavailable in 1993 and not provided to 

him until 1995. As to the substantiality of his hearing loss, 

Cochran points to his disability application where he also 

stated that his hearing loss “ha[d] created many problems at 

work and at home.” J.A. 326. Cochran’s arguments, however, 

misperceive the nature of summary judgment. He cannot create a 

genuine issue of material fact by pointing to contradictions in 

his own testimony. “[I]t is well established that ‘a genuine 

issue of fact is not created where the only issue of fact is to 

determine which of the two conflicting versions of a party’s
14

testimony is correct.’” Erwin v. United States, 591 F.3d 313, 

325 n.7 (4th Cir. 2010) (quoting Halperin v. Abacus Tech. Corp., 

128 F.3d 191, 198 (4th Cir. 1997)) (alterations omitted); see 

also S.P. v. City of Takoma Park, Md., 134 F.3d 260, 274 n. 12 

(4th Cir. 1998) (disregarding affidavit of witness that 

contradicted witness’s own prior sworn deposition testimony).5

2.

 

Cochran’s sworn statement, under oath and under penalty of 

perjury, that at the time of his 1992 hearing examinations, his 

hearing was “absolutely not” giving him trouble on a day-to-day 

basis cannot be overcome by his later expositions in differing 

circumstances. 

We next consider whether, under the second disability 

formulation, Cochran has established he has a “record of such an 

impairment.” 29 C.F.R. § 1630.2(g)(1)(ii). An individual has a 

record of a disability “if the individual has a history 

of . . . a mental or physical impairment that substantially 

limits one or more major life activities.” Id. at 1630.2(k)(1). 

Cochran’s argument under this category fails for the same reason 

that his claim to an actual disability under the first 

 5 Cochran also seeks to rely on information contained in a 

1995 letter from the Department of Labor’s Office of Workers’ 

Compensation Programs (“OWCP”). However, as Cochran’s counsel 

acknowledged at oral argument, the district court denied the 

admission of this letter into evidence, and it is therefore not 

before us. 
15

formulation does. While there are reports establishing that 

Cochran no longer met the USMS hearing standards, those same 

reports indicated that, despite a more “severe level of hearing 

loss” in the high frequencies, Cochran’s “binaural hearing loss 

would be less than 10%” overall “due to the better hearing in 

the lower frequencies.” J.A. 317. This record does not 

establish a history of impairment that “substantially limit[ed]”

Cochran’s hearing. 29 C.F.R. § 1630.2(k)(1).

3.

Finally, we address whether Cochran demonstrated that he 

was “disabled” because the USMS “regarded” him as such. 29 

C.F.R. § 1630.2(g)(1)(iii). Under this third formulation, 

Cochran must show that the USMS “entertain[ed] misperceptions 

about [him]” by believing he had a “substantially limiting 

impairment” that he did not in fact have or that was not “so 

limiting.” Sutton, 527 U.S. at 489. Simply believing Cochran 

had an impairment is not enough under this inquiry. Rather, 

Cochran must prove that the USMS believed his hearing condition 

“substantially limit[ed] a major life activity.” Id. 

In attempts to meet this burden, Cochran argues that even 

if we find as a matter of law that he was not actually disabled 

under the RA as of 1993, his employer believed that he was. He 

points to a 2000 agency decision issued by the Department of 

Justice’s Complaint Adjudication Office which states that the 
16

“record supports the conclusion that [Cochran] was an individual 

with a disability.” J.A. 129. However, the decision also 

explained that “this is not the only possible conclusion” given 

the intervening Supreme Court precedent establishing a more 

stringent definition of “disability.” Id. at n.6.

Consequently, the decision “assume[d],” without deciding, that 

Cochran was an individual with a disability, and proceeded to 

deny Cochran’s claim on other grounds. Id. Such evidence 

simply does not establish that the USMS “regarded” Cochran as 

disabled within the meaning of the RA. 

In sum, Cochran has failed to demonstrate that, at the 

point he opted for voluntary retirement in 1993, he was a 

disabled individual under any of the three formulations 

articulated in the RA. We need go no further to affirm the 

district court’s grant of summary judgment to the USMS with 

respect to Cochran’s first claim of discrimination. 

B.

Cochran’s second claim of discrimination involves his 

requests for reinstatement in 1995. As with the first claim, in 

order to survive summary judgment on this count, Cochran must 

first prove he is a qualified individual with a “disability” 

under the meaning of the RA. Hooven-Lewis, 249 F.3d at 269. 

Whereas we earlier applied the analysis to Cochran at the time 
17

he opted for voluntary retirement, here we apply it to him at 

the time he requested reinstatement. 

Cochran was not actually “disabled” when he sought 

reinstatement to the USMS in 1995. In a letter to Joseph Moy, 

USMS Chief of the Retirement and Benefits Branch, Cochran wrote

I now have new hearing aids as of the first part of 

February 1995. According to the test by the 

audiologist, without hearing aids my hearing is within 

the acceptable level of the standards I was hired 

under. With hearing aids it is well above the 

standards. . . . All of this amounts to the following 

request[] . . . [t]o immediately have my job 

reinstated. 

J.A. 203. To the extent Cochran requested reinstatement because 

the USMS had changed its policy to allow for the use of hearing 

aids during testing, his own account demonstrates that he was 

not disabled because the hearing aids he used corrected for any 

hearing deficiency. As the Supreme Court explained in Sutton, 

for purposes of determining if an individual is “disabled” under 

the RA, we consider whether “a person is taking measures to 

correct for, or mitigate, a physical or mental impairment.” 527 

U.S. at 482 (finding that petitioners were not “disabled” under 

the ADA, because the corrective measures actually taken by them 

corrected their vision to “20/20 or better”) (emphasis added).6

 6 Because Cochran testified that he did not begin using 

hearing aids until after his voluntary disability took effect, 

we only consider the impact of that corrective measure on his 

second claim involving reinstatement in 1995, when he was 

 

(Continued)
18

Inasmuch as Cochran requested reinstatement because he had 

recovered his hearing sufficiently to meet the hearing standards 

without the use of hearing aids, his own claims show he suffered 

no “impairment,” let alone a substantial one. Either way, 

Cochran has only presented evidence that his condition improved 

between 1993 and 1995. If he was not actually disabled in 1993, 

then he certainly could not have been actually disabled in 1995. 

Cochran has introduced no evidence to suggest that he had a 

record of disability in 1995 or that the agency regarded him as 

disabled.7

 His failure to prove a “disability” under the RA also 

forecloses his second claim of discrimination. 

III.

For the foregoing reasons, we affirm the judgment of the 

district court. 

AFFIRMED

 

actually using hearing aids. Sutton, 527 at 482 (considering 

“the effects of those measures” actually taken by the 

petitioners). 

7 In fact, Cochran attempted (unsuccessfully) to introduce 

into evidence a letter from the OWCP that purported to show that 

his employer regarded him as recovered and without the need for 

hearing correction. See J.A. 247-250.