UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1231

BETTY MOTICKA,

Plaintiff - Appellant,

versus

WECK CLOSURE SYSTEMS, d/b/a Weck, a division

of Teleflex,

Defendant - Appellee,

and

TERI BROM, in her official capacity as Human

Resources Manager; LEEANNE ROSS, in her

official capacity as Human Resources Benefits

Specialist,

Defendants.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (CA-02-936-BO)

Argued: March 16, 2006 Decided: May 31, 2006

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.
2

ARGUED: Morris Eli Fischer, Bethesda, Maryland, for Appellant.

David Christopher Lindsay, KILPATRICK STOCKTON, L.L.P., Raleigh,

North Carolina, for Appellee. ON BRIEF: Ari Taragin, SNIDER &

FISCHER, L.L.C., Baltimore, Maryland, for Appellant. Randall D.

Avram, KILPATRICK STOCKTON, L.L.P., Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
3

PER CURIAM:

Betty Moticka appeals the district court’s grant of summary

judgment in favor of her former employer, Weck Closure Systems

(“Weck”), on her Family and Medical Leave Act (“FMLA”) and

retaliation claims. For the reasons discussed below, we affirm.

I.

A.

The facts giving rise to Moticka’s cause of action under the

FMLA are as follows. Moticka began working at Weck’s Durham, North

Carolina facility on March 7, 1994. In approximately June 2000,

Moticka’s podiatrist, Dr. Patrick Dougherty, diagnosed her with

bunions and hammertoe in both feet, for which he recommended

surgery. On approximately July 7, 2000, Moticka received a note

from Dr. Dougherty stating that she would need to be excused from

work from July 19, 2000, until September 22, 2000, to recover from

surgery. She submitted that note to her employer on July 17, 2000.

This was Weck’s first notice of Moticka’s need for medical leave.

At that time, Weck provided its employees with at least two

types of medical leave. First, Weck’s short-term disability policy

entitled employees to twenty-six weeks of paid leave. J.A. 240,

302. Second, under Weck’s FMLA policy, which was posted in a

hallway leading to Weck’s cafeteria, employees who had worked for

Weck for at least one year and who had worked a minimum of 1,250
4

hours during the preceding year, were eligible for up to twelve

weeks of family medical leave during each twelve-month period. Id.

at 97. Pursuant to company policy, employees were required to give

thirty days’ written notice of their desire to take FMLA leave when

that leave was foreseeable. Id. at 98.

Weck did not dispute Moticka’s eligibility for FMLA coverage,

but expressed displeasure at her failure to provide advanced notice

of her need for leave. In an internal note regarding Moticka’s

medical leave, the Human Resources manager stated that “[a]lthough

the company is concerned that Betty did not provide notice for her

medical leave, Weck Closure Systems will provide Betty with ShortTerm-Disability and FMLA, and will provide any reasonable

accommodations needed for her return to work.” J.A. 187.

Moticka underwent surgery on her left foot on July 19, 2000.

Unfortunately, her recovery did not proceed as expected. On

September 14, 2000, Dr. Dougherty submitted a note to Weck stating

in its entirety that: “Due to recovery from foot surgery, Betty

will be unable to return to work until further notice.” J.A. 215.

Again, on December 9, 2000, Dr. Dougherty submitted a note to Human

Resources stating that Moticka’s recovery would continue for

another six months. Id. at 216.

On January 26, 2001, more than twenty-seven weeks after her

leave first began, Moticka had surgery on her right foot. After

consulting with its insurance company, Weck concluded that Moticka
5

should be able to return to work within forty-two days of her

second surgery, i.e., by March 12, 2001. J.A. 302. Therefore, on

March 5, 2001, Weck informed Moticka that she was expected to

return to work on March 12, 2001, unless she provided a doctor’s

note explaining her need for more leave. Id. at 201, 302.

Initially, Dr. Dougherty and Moticka’s orthopedic surgeon informed

Weck that Moticka would need additional recovery time. Id. at 297,

299. Thereafter, without obtaining Moticka’s consent, Weck

contacted both physicians and assured them that Moticka’s work

restrictions could be accommodated. Id. at 223. Based on Weck’s

representations, both physicians released Moticka to return to

work, provided she could remain seated, change positions as needed,

elevate her right foot, and wear sneakers or surgical shoes. Id.

at 296, 298.

Moticka and Weck exchanged several e-mails between March 7 and

March 9, 2001. In those messages, Moticka stated that she knew

that Weck had contacted her physicians without her permission, and

that those contacts prompted her physicians to write notes

releasing her to work with restrictions. J.A. 233. She also

informed Weck that she could not drive (because of her healing

process) and had not been able to secure any transportation to the

Weck facilities, located forty-five miles from her home. Id.

Despite Moticka’s protestations, Weck reaffirmed its expectation

that Moticka report to work on March 12, 2001, and alerted her that
6

if she failed to return to work, she would be considered to have

abandoned her position. Id. at 222.

In total, Moticka was allowed to remain out on leave for

thirty-four weeks, from July 17, 2000, until March 12, 2001. J.A.

38. Weck paid Moticka’s short-term disability benefits for over

thirty weeks, from July 17, 2000, until February 15, 2001, four

weeks more than required under its short-term disability policy.

Id. at 39. Weck permitted Moticka to remain on unpaid leave during

the remaining four weeks of her leave. Id. at 176.

When Moticka did not report to work on March 12, 2001, Weck’s

Human Resources manager notified her by e-mail and letter of March

13 and 14, respectively, that she had been terminated for job

abandonment. The March 13 e-mail stated that “we held your job

open for six months longer than required by the Family and Medical

Leave Act.” J.A. 294. According to Moticka, “[t]his was the first

time Plaintiff was aware she had been on FMLA.” Id. at 26.

B.

In her second claim, Moticka contends that between 1999 and

2001, Weck took action against her in retaliation for her September

1999 complaint of age discrimination. In an e-mail message dated

September 2, 1999, Moticka, then fifty-two years of age, accused

her supervisor, Brian Young, of age discrimination. Moticka

drafted the message in response to Young’s requests that she design
7

a training program for a subordinate employee, who was having

performance problems. Feeling as though Young had deprived her of

the opportunity to craft her own training program and that the

subordinate employee should be terminated rather than trained,

Moticka resisted Young’s instructions. See J.A. 71. She stated,

“I do not feel competent to design a program that has a

professional advancement/training component.” Id. at 103.

Further, in closing her message, she launched the following

accusation: “You seem to be willing and able to expend energy and

find money to train and develop younger people. Are you

withholding advancement opportunities from me because I am over 40?

Weck advertises itself as an equal opportunity employer. I’d like

to see that equality practiced in this department.” Id. at 103.

After her complaint, Moticka alleges that she was subjected to

a series of adverse employment actions: (1) she received a written

warning for insubordination on September 9, 1999; (2) that same

day, her supervisors requested that she work no more than 45 hours

per week; (3) she was demoted from Document Control Center

Supervisor to Document Control Center Coordinator in February 2000;

(4) she was not selected for the position of Executive

Administrative Assistant to the President in April 2000; (5) she

was asked to stop asking questions in quarterly meetings in July

2000; and (6) she was terminated in March 2001.
8

Moticka filed a charge of discrimination with the EEOC on

September 3, 2001. She filed her second amended complaint,

alleging age discrimination, violations of the FMLA, hostile work

environment, and retaliation, in the Eastern District of North

Carolina, on March 10, 2004. Thereafter, Weck and Moticka both

moved for summary judgment. The district court granted Weck’s

motion for summary judgment and denied Moticka’s cross-motion on

February 1, 2005. Moticka now appeals the district court’s

disposition of her FMLA and retaliation claims.

II.

This Court reviews a district court’s grant of summary

judgment de novo, viewing all facts and the reasonable inferences

drawn therefrom in the light most favorable to the nonmovant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary

judgment may only be granted where “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.” Fed. R. Civ. P. 56(c).
1The FMLA encourages employers to establish more generous

leave policies. See Ragsdale v. Wolverine World Wide, 535 U.S. 81,

87 (2002). Many employers do so by providing their employees with

more leave than legally required, others offer paid medical leave.

Id. “As long as these policies meet the Act’s minimum

requirements, leave taken may be counted toward the 12 weeks

guaranteed by the FMLA.” Id.

9

III.

A.

Under the Family and Medical Leave Act of 1993, 29 U.S.C. §

2601 et seq., an eligible employee suffering from a serious health

condition is entitled to twelve workweeks of leave during any

twelve-month period. Id. § 2612(a)(1). Such leave may be paid or

unpaid, id. § 2612(c), and may be taken intermittently or on a

reduced leave schedule when medically necessary, id. § 2612(b)(1).1

An employee is deemed “eligible” for FMLA leave, where she has

worked for the employer for at least twelve months and for at least

1,250 hours of the year immediately preceding the requested leave.

Id. § 2611(2)(A). The determination of whether an employee has

been employed for at least twelve months and has worked the

requisite hours is made as of the date that leave commences. 29

C.F.R. § 825.11. While an employee is out on FMLA leave, the

employer shall maintain the employee’s coverage under any group

health plan. 29 U.S.C. § 2614(c)(1). When the employee returns

from leave, she must be restored to her previous position or to one

that is equivalent. Id. § 2614(a)(1). Under the FMLA, it is

unlawful “for any employer to interfere with, restrain, or deny the
2

The FMLA and its accompanying regulations also impose notice

requirements on employees and employers. For example, where an

employee’s need for leave on account of serious illness is

foreseeable because of a planned medical treatment, her employer is

typically entitled to 30 days’ notice. 29 U.S.C. § 2612(e)(2).

Additionally an employer may require an employee to submit a

doctor’s certification to support the initial leave request, id. §

2613(a), and any requests for extended leave, id. § 2614(c)(3)(A).

An employer, in turn, is required to post its FMLA policy in a

conspicuous location on the work premises. Id. § 2619. Moreover,

by federal regulation, “it is the employer’s responsibility to

designate leave, paid or unpaid, as FMLA-qualifying, and to give

notice of the designation to the employee . . . .” 29 C.F.R. §

825.208(a).

10

exercise of or the attempt to exercise,” any of the aforementioned

rights. Id. § 2615. The FMLA sets forth the penalties for a

violation of those rights. See id. § 2617.2

Before liability will be imposed on an employer for violating

an employee’s rights under the FMLA, the employee must show that

she was prejudiced by the violation. Ragsdale, 535 U.S. at 89. In

Ragsdale, the Supreme Court considered 29 C.F.R. § 825.700(a), the

federal regulation setting forth the penalty for an employer’s

failure to notify an employee that it has designated a period of

leave as FMLA leave. That regulation provides that “[i]f an

employee takes paid or unpaid leave and the employer does not

designate the leave as FMLA leave, the leave taken does not count

against an employee’s FMLA entitlement.” 29 C.F.R. § 825.700(a);

see also id. § 825.208(a) (“In all circumstances, it is the

employer’s responsibility to designate leave, paid or unpaid, as
11

FMLA-qualifying, and to give notice of the designation to the

employee as provided in this section.”).

The Ragsdale Court invalidated 29 C.F.R. § 825.700(a) to the

extent that it required an employer to give an employee an

additional twelve weeks of leave whether or not the employee had

shown that her lack of notice caused “any real impairment of [her

FMLA] rights and resulting prejudice.” Ragsdale, 535 U.S. at 90.

In doing so, the Court remarked that requiring an employer to grant

additional leave even when no prejudice results from a lack of

notice “amends the FMLA’s most fundamental substantive

guarantee--the employee’s entitlement to ‘a total of 12 workweeks

of leave in any 12-month period.’” Id. at 93 (quoting 29 U.S.C. §

2612(a)(1)). Accordingly, under Ragsdale, courts must undertake a

“fact-specific inquiry into what steps the employee would have

taken had the employer given the required notice.” Id. at 91.

After conducting a fact-specific inquiry, the Ragsdale Court

concluded that the employee afflicted with Hodgkin’s disease was

not entitled to twelve additional weeks of FMLA leave due to her

employer’s failure to comply with the notice requirement, because

she had not shown that she was prejudiced by the violation:

Ragsdale ha[d] not shown that she would have taken less

leave or intermittent leave if she had received the

required notice. . . . In fact, her physician did not

clear her to work until December, long after her 30-week

leave period had ended. Even if Wolverine had complied

with the notice regulations, Ragsdale still would have

taken the entire 30-week absence.
3Moreover, Weck’s FMLA policy would provide little assistance

were we to make this determination. Weck argues that the following

language from its FMLA policy should place employees on notice of

the fact that their FMLA and short-term disability leave run

concurrently:

Accumulated paid vacation and other paid time off to

12

535 U.S. at 90.

B.

With this framework in mind, we examine whether the district

court’s grant of summary judgment on Moticka’s FMLA claim was

proper. Moticka effectively advances three arguments as to why

summary judgment was inappropriate: (1) she was not afforded her

full entitlement to FMLA leave; (2) even assuming she was granted

twelve weeks of FMLA leave, Weck’s failure to follow the notice

requirements prejudiced her and entitled her to additional FMLA

leave; and (3) Weck violated her FMLA rights by engaging in

unauthorized communications with her physicians. For the reasons

discussed below, all of these arguments fail.

1.

We begin by considering Moticka’s contention that she was not

provided all the leave to which she was entitled under the FMLA.

Although there is some dispute as to whether, under Weck’s policy,

FMLA and short-term disability leave run concurrently or

consecutively, we need not resolve this question. Under either

interpretation, summary judgment was appropriate.3
include paid personal days and paid disability leave must

be used first before any unpaid family and/or medical

leave will be granted. Total paid and unpaid leave for

family and medical purposes will not exceed twelve (12)

weeks during a twelve-month period.

J.A. 97. We are not persuaded. The FMLA policy is far from a

model of clarity. Only after a painstaking review of the policy

were we able to discern that, under Weck’s policy, the first twelve

weeks of Moticka’s leave counted toward her FMLA entitlement, and

that Moticka was paid during that time because she was eligible for

at least twelve weeks of short-term disability leave. Accordingly,

the first twelve weeks of Moticka’s leave qualified as both FMLA

and short-term disability leave; during that time, she received the

protections of the FMLA and the compensation to which she was

entitled under the short-term disability policy. Although we

arrived at this understanding over the course of oral argument, an

employee should not be expected to reach these conclusions aided

only by the FMLA policy’s opaque wording.

13

If we adopt Weck’s interpretation that FMLA and short-term

disability leave run concurrently, Moticka received all the leave

to which she was entitled. Under this interpretation, Moticka’s

FMLA leave, like her short-term disability leave, began in July

2000, days before her first surgery. At that time, Moticka was

eligible for FMLA leave, because she had worked for Weck for at

least twelve months and for at least 1,250 hours during the

preceding year. See 29 U.S.C. § 2611(2)(A). Nonetheless, her FMLA

rights were not infringed, because she was allowed to stay out of

work for thirty-four weeks, from July 2000 until March 2001, far

more than the twelve weeks of leave required under the FMLA.
4We need not address the possibility that Moticka’s FMLA leave

preceded her short-term disability leave, because Moticka

understood that she was being placed on short-term disability leave

in July 2000. See J.A. 39. Even if Moticka did not concede this

point, however, we can be sure that she was on notice of the fact

that she was expending short-term disability leave by virtue of the

short-term disability payments that she received for over twentysix weeks of her leave.

5

In her answers to interrogatories, Moticka indicated that she

had worked only 1,052 hours during the 2000 year. J.A. 89.

Although she sought to discount those interrogatory answers at a

later date (by stating that she had not recorded overtime hours),

she cannot create a genuine issue of fact by contradicting herself.

See Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984).

Because of her medical leave, Moticka did not perform any work for

Weck during the 2001 year.

14

Nor is Moticka aided by proceeding under her preferred reading

that FMLA leave follows short-term disability leave.4 As of

January 19, 2001, the end of her twenty-six week entitlement to

short-term disability leave, Moticka had worked less than 1,052

hours during the preceding year.5 See J.A. 89. Thus, at that

time, Moticka had not worked the 1,250 hours required to be

eligible for FMLA leave. For the same reason, she could not have

received FMLA benefits on February 15, 2001, when Weck actually

discontinued short-term disability payments. Likewise, she would

not have been eligible for a period of FMLA leave beginning at the

time of her termination in March 2001. Accordingly, under this

interpretation, Moticka has failed to show any entitlement to

coverage under the FMLA, let alone a violation of the FMLA.
6In performing this analysis, we do not consider the

possibility that FMLA and short-term disability leave run

consecutively, because we have already concluded that Moticka would

not have qualified for FMLA protection under that interpretation.

15

2.

Moticka contends that regardless of whether she was given more

leave than is required under the FMLA (which she plainly was),

Weck’s failure to provide her with individualized notice entitles

her to twelve additional weeks of FMLA leave.6 See Ragsdale, 535

U.S. at 84. Weck concedes that Moticka was not provided any

individualized notice that her FMLA leave was being expended during

her time off, as required by 29 C.F.R. § 825.208(a). See id. (“In

all circumstances, it is the employer’s responsibility to designate

leave, paid or unpaid, as FMLA-qualifying, and to give notice of

the designation to the employee as provided in this section”). In

fact, her only notice came in the form of the FMLA policy that was

posted at the Weck facilities. Without question, this generalized

notice via a policy that confuses more than it clarifies, did not

suffice. Nonetheless, however, Moticka must show prejudice arising

from her lack of notice. See Ragsdale, 535 U.S. at 89. This she

cannot do.

Although Moticka argues that she was prejudiced by Weck’s

failure to tell her that she was expending her FMLA leave, the

record shows otherwise. The only evidence Moticka proffers as to

prejudice is her doctor’s affidavit stating that “[a]lthough
16

necessary, Ms. Moticka’s operations were not the type of surgery

that required immediate attention,” and that “[h]ad my or Ms.

Moticka’s schedule necessitated, either of her two surgeries could

have been postponed and rescheduled for a later date.” J.A. 315.

That stated, however, Moticka does not indicate that she would have

delayed her surgeries had she known that her FMLA leave began to

run on July 17, 2000.

Moreover, given that when Moticka decided to undergo surgery,

she was laboring under the impression that her recovery from both

surgeries would take only two months, it is far from clear that she

would have delayed her first surgery had she known that her FMLA

leave was being expended. Indeed, had Dr. Dougherty’s predictions

been correct, Moticka’s twelve weeks of FMLA leave would have more

than covered her anticipated recovery period. Moticka’s own

testimony suggests that she would not have delayed or altered her

treatments unless she had known that her FMLA leave was running and

that her recovery would take more than twelve weeks. J.A. 275

(“[H]ad I known that I was on FMLA and that it was going to take

longer than the 12 weeks allowed by FMLA, I would have made certain

that [Dr. Dougherty] was aware that the treatment needed to be

modified rather than allowing him to extend it the way he did

because there was no way that I would have risked losing my job

with the company for something like this . . . .” (emphasis
17

added)). Unfortunately for Moticka, however, the very fact that

hindsight is better than foresight does not establish prejudice.

Further, the record is bereft of any evidence to suggest that

Moticka’s recovery from her first surgery could have been expedited

had she known she was expending her FMLA leave. Rather, based on

Moticka’s and Dr. Dougherty’s representations, it appears that

Moticka needed the many months she requested to recover from her

first surgery. J.A. 279 (“I fully expected to be released to

return to work September 22nd, which was what [Dr. Dougherty] had

originally put out, but because of the progress with the healing

being much slower than he had anticipated, he stretched out the

disability.”); see also id. at 305 (letter from Dr. Dougherty

stating that “[Moticka] had a slow recovery with this first

procedure and developed signs and symptoms of a neuroma to the same

foot which needed to be treated in the process.”). In September

2000, Dr. Dougherty informed Weck that Moticka would be “unable to

return to work until further notice.” Id. at 215. That December,

Dr. Dougherty told Weck that “Betty will be in continued recovery

from foot surgery for the next 6 monthes [sic].” Id. at 216.

Thus, from July through December 2000, Moticka represented to her

employer that she was not well enough to return to work. As of

December 2000, Moticka had expended all of her FMLA leave and all

but six weeks of her short-term disability leave. Not until

January 26, 2001, when she underwent surgery on her right foot, can
7

At best, Moticka could argue that she would have delayed her

second surgery had she known that, as of the date of that

procedure, she had expended her full entitlement to FMLA and shortterm disability leave. That argument is to no avail, however,

because as of January 19, 2001, when her FMLA and short-term

disability leave expired, Weck had no legal obligation to hold open

her job. Nonetheless, whether by grace or mistake, Weck granted

Moticka seven additional weeks of leave (four of them paid).

Still, once Moticka was released to return to work and Weck

notified her of the consequences of failing to do so, she did not

report to work or provide a physician’s certification to justify

her absence.

18

we infer that her left foot was sufficiently healed to permit her

to return to work. At that time, Moticka had expended her full

entitlement to short-term disability and FMLA leave. “Even if

[Weck] had complied with the notice regulations, [Moticka] still

would have taken” her full twenty-six combined weeks of FMLA and

short-term disability leave. Ragsdale, 535 U.S. at 90.

Accordingly, Moticka, like the plaintiff in Ragsdale, has failed to

show prejudice.7

3.

Finally, Moticka’s claim that Weck violated her FMLA rights by

communicating with her physicians without her prior approval also

fails, because she has shown no injury. Although federal

regulation prohibits an employer from having conversations with an

employee’s medical provider absent the employee’s prior approval,

see 29 C.F.R. § 825.307(a), no relief for such a violation lies

unless some FMLA right was interfered with, restrained, or denied.

Ragsdale, 535 U.S. at 89 (“[A]n employee must prove, as a threshold
19

matter, that the employer violated § 2615, by interfering with,

restraining, or denying his or her exercise of FMLA rights. Even

then, § 2617 provides relief only if the employee has been

prejudiced by the violation.”). Moticka’s claim fails because she

has not shown that the unauthorized communications interfered with

her ability to exercise any of her statutory rights under the FMLA.

Despite the communications, Moticka received all of the FMLA leave

to which she was entitled, see 29 U.S.C. § 2612(a)(1); Weck

fulfilled its obligation to maintain her group health insurance,

id. § 2614(c)(1); and Weck offered to restore her to an equivalent

position at the end of her approved leave, id. § 2614(a)(1).

IV.

We now address Moticka’s retaliation claim. The Age

Discrimination in Employment Act (“ADEA”) makes it an unlawful

employment practice to discriminate against an employee “because

such individual . . . has opposed any practice made unlawful [under

the ADEA], or because such individual . . . has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or litigation under [the ADEA].” 29

U.S.C. § 623(d). To establish a prima facie case of retaliation,

a plaintiff must show that: “(1) he engaged in protected activity;

(2) an adverse employment action was taken against him; and (3)

there was a causal link between the protected activity and the
20

adverse action.” Laber v. Harvey, 438 F.3d 404, 432 (4th Cir.

2006) (en banc). Once a plaintiff succeeds in making out a prima

facie case of retaliation, the defendant must present a legitimate

nondiscriminatory reason for the adverse employment action. Id.

At that point, the plaintiff bears the burden of showing that the

proffered legitimate reason for the adverse action was mere

pretext. Id.

Moticka claims that she was retaliated against on account of

a September 2, 1999 e-mail that she sent to her supervisor, Brian

Young, in which she stated: “You seem to be willing and able to

expend energy and find money to train and develop younger people.

Are you withholding advancement opportunities from me because I am

over 40? Weck advertises itself as an equal opportunity employer.”

J.A. 103. Moticka claims that Weck took action against her in

retaliation for her complaint, with the final act of retaliation

occurring in 2001 at the time of her termination. Specifically, on

September 9, 1999, she was given a written warning for

insubordination; on that same date, she was instructed not to work

any more overtime; in February 2000, she was demoted to Document

Control Center Coordinator; in April 2000, she was denied the

position of Executive Administrative Assistant to the President; in

July 2000, she was ordered to stop asking questions at quarterly

meetings. Although these episodes may not be considered as
8Because Moticka filed her retaliation claim with the EEOC on

September 3, 2001, any episodes of alleged discrimination occurring

more than 180 days earlier, i.e., prior to March 8, 2001, are timebarred. See 29 U.S.C. § 626(d)(2) (providing that a charge of

unlawful discrimination shall be filed “within 180 days after the

alleged unlawful practice occurred;” or “within 300 days after the

alleged unlawful practice occurred” where a plaintiff has commenced

state proceedings under a state law prohibiting age

discrimination). Moticka is subject to the 180-day time limit, not

the more generous 300-day limit, because she did not opt to file

her claim with a state agency before proceeding to the EEOC.

9

In this instance, however, the background evidence is not

particularly compelling, because Weck provides plausible

nonretaliatory explanations for most of the events. Weck explains

that Moticka was given a written warning and was subsequently

demoted because she resisted her supervisor’s repeated requests

that she complete a performance plan for an employee under her

supervision and displayed a lack of confidence in her supervisory

abilities. Weck states that Moticka was asked to limit her work

hours based on her supervisor’s conclusion that her job could be

performed during a forty-hour workweek, and that Moticka’s

discontent with her job might have stemmed from working excessive

hours. According to Weck, Moticka was not selected as Executive

Administrative Assistant to the President because the 52-year-old

person who had been acting in that capacity was more familiar with

the job requirements.

21

separate adverse employment actions because they are time-barred,8

they can be treated as background evidence in support of her

retaliation claim.9 AMTRAK v. Morgan, 536 U.S. 101, 113 (2002).

The district court concluded that Moticka could not establish

a prima facie case of retaliation, because the lapse of time

between her age discrimination complaint and termination severed

any causal link between the two events. J.A. 331. Moticka,

however, contends that the lapse of time is without consequence,

because Weck could not have retaliated against her sooner as she

was out on medical leave. Although a significant lapse of time
22

between a protected activity and an adverse employment action can

negate any inference of causal connection, Dowe v. Total Action

Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998), where there is

a reasonable explanation for the lapse of time, a causal connection

may still be inferred. For example, in King v. Rumsfeld, 328 F.3d

145 (4th Cir. 2003), this Court found that a two-month lapse

between the protected activity and the alleged retaliation was not

excessive, because the employer had indicated its intent not to

terminate the school employee before the end of the academic year.

Id. at 151 n.5. For several reasons, however, Moticka cannot

benefit from the principle announced in Rumsfeld.

 Here, the inference of retaliatory motive is undercut, not

only by the length of time between the protected activity and

adverse action (nearly two years), but also by the favorable

treatment Moticka received from July 2000 until her termination.

First, because Moticka had not complied with the FMLA’s notice

requirement in requesting her leave, Weck could have denied her

leave when it was initially requested, but it did not do so. Next,

Weck gave her more paid leave than was required under its shortterm disability policy (payments ended on February 15, 2001, rather

than on January 19, 2001). Finally, by allowing Moticka thirtyfour weeks of leave, Weck gave Moticka more leave than required

under its FMLA and short-term disability policies. These facts are

not consistent with an intent to retaliate against Moticka.
23

Because Moticka has failed to make out a prima facie case of

retaliation, the district court properly granted Weck’s motion for

summary judgment on Moticka’s retaliation claim.

V.

For the reasons set forth above, we affirm the district

court’s grant of summary judgment in favor of Weck.

 AFFIRMED