United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 6, 2015 Decided July 14, 2015

No. 14-7055

LORIE A. GILES,

APPELLANT

v.

TRANSIT EMPLOYEES FEDERAL CREDIT UNION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01103)

Richard P. Goldberg argued the cause and filed the briefs 

for appellant.

Neil S. Hyman argued the cause and filed the brief for 

appellee.

Before: BROWN, SRINIVASAN and WILKINS, Circuit 

Judges.

Opinion for the court by Circuit Judge Brown.

Brown, Circuit Judge: Lorie Giles appeals the district 

court’s grant of summary judgment to her former employer

Transit Employees Federal Credit Union (“TEFCU”) in this 
2

wrongful termination case. Because no reasonable jury could 

infer TEFCU dismissed Giles because of the costs associated 

with insuring her, we affirm the district court’s judgment.

I

Lorie Giles worked at TEFCU for almost four years. She 

began her tenure in December 2005 as a temporary employee 

and became a full-time receptionist in September 2006. After 

becoming a full-time employee, Giles enrolled in TEFCU’s 

CareFirst BlueCross BlueShield (“CareFirst”) health 

insurance. She selected the single employee, preferred 

provider organization (“PPO”) plan known as the “Blue 

Preferred Option 1” plan. Giles suffers from Multiple 

Sclerosis (“MS”) and as treatment received expensive 

monthly outpatient drug infusions from 2007 to October 

2009. She took some sick leave to attend her medical 

appointments but had no prolonged absences.

In 2008, Giles was involved in a couple of altercations

with TEFCU customers. On July 9, 2008, she adamantly 

insisted a customer return a pen, even as the customer 

explained it was actually his pen. Endia Robinson, TEFCU’s 

Assistant Member Service Manager and one of Giles’s 

supervisors, documented the incident and verbally warned 

Giles her behavior was unacceptable. On October 1, 2008, 

Giles confronted a customer for entering the building through 

the wrong door and attempted to make the customer exit and 

properly reenter. In response, Robinson issued a written 

warning and suspended Giles for two days without pay. In 

her performance evaluation for 2008, Giles received an 

overall rating of Partially Achieved Requirements (“PAR”)—

the second lowest of four possible ratings—and received a 

rating of Less than Expected (“LTE”)—the lowest possible 

rating—for her specific receptionist duties. Giles’s role at 
3

TEFCU changed in October 2008 when she became a 

scanning specialist. In July 2009, Giles was again evaluated 

and received an overall rating of Fully Achieved 

Requirements (“FAR”)—the second-highest rating. However 

she was given a PAR for her record maintenance tasks. 

Robinson noted Giles had improperly filed documents, stating 

“There is a large amount of documentation that is currently 

filed under the incorrect account number.” J.A. 541.

During the time Giles was a participant in TEFCU’s 

health insurance plan, TEFCU paid 80 percent of each 

participant’s monthly premium, and the participants were 

individually responsible for the remaining 20 percent. 

CareFirst initiated a plan renewal and recalculated the 

premium rate annually. In doing so, it explained “renewal 

rates are calculated using the community claims experience 

and the average group age, projected forward with a health 

care inflation factor. In addition, factors such as prescription 

drug utilization, legislative mandates and provider utilization 

play key roles in determining health care costs.” J.A. 344. 

From 2007 to 2009, the monthly premium for the Blue 

Preferred Option 1 plan rose. In August 2007, it went from 

$286 to $308 per month. In August 2008, the premium 

changed to $375 per month, and in August 2009 it increased

to $449 per month.

In November 2009, Rita Smith replaced Percys Felder as 

TEFCU’s chief executive officer (“CEO”). Smith terminated 

Giles on November 24, 2009. Giles did not exercise her right 

under the Consolidated Omnibus Budget Reconciliation Act 

(“COBRA”) to temporarily continue her health benefits, 

stating she could not afford to do so. Felder testified that 

beginning in May 2010, TEFCU used temporary employees 

and an intern to complete the scanning tasks Giles had 

previously performed. In July 2010, the monthly premium for 
4

the single employee PPO plan decreased to $437 per month. 

After exhausting administrative remedies before the Equal 

Employment Opportunity Commission (“EEOC”), Giles filed 

this action in district court alleging wrongful termination in 

violation of the Americans with Disabilities Act of 1990 

(“ADA”), 42 U.S.C. § 12101 et seq., the District of Columbia 

Human Rights Act (“DCHRA”), D.C. CODE § 2-1401.01 et 

seq., and Section 510 of the Employee Retirement Income 

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140.

1

 The 

thrust of Giles’s claims is that the cost of treating her MS was 

causing the monthly premium for the Blue Preferred Option 1

plan to rise and that TEFCU dismissed her to reduce its health 

care costs.

After discovery, the district court granted TEFCU’s 

motion for summary judgment, finding Giles failed to put 

forth sufficient evidence of her claims. Giles v. Transit Emps.

Credit Union, 32 F. Supp. 3d 66, 68 (D.D.C. 2014). The

district court further found that even if Giles’s allegations 

were true, TEFCU had not violated the ADA. Id. at 73. The 

district court reasoned that terminating an employee for the 

costs associated with his or her health care is not termination

for a disability. Id. Therefore, the district court explained, 

such a termination falls outside of the purview of the ADA,

which forbids terminations motivated by an employee’s 

disability. Id. Finally, the district court denied Giles’s 

motion for discovery sanctions, in which she claimed any 

inadequacies in the evidence were caused by “TEFCU’s 

spoliation of health-insurance invoices and communications.” 

 1 Giles filed her suit pro se and initially raised only the ADA claim. 

After the district court appointed pro bono counsel, Giles amended 

her complaint to include the DCHRA and ERISA claims. She also 

raised a claim of wrongful discharge in violation of public policy, 

which the district court dismissed on October 10, 2012 and is not at 

issue here.
5

Id. at 74 n.3. The motion was moot in light of the sufficient 

documentation of TEFCU’s health insurance premiums, 

which was provided by CareFirst. Id. This appeal followed.

II

We review the district court’s grant of summary 

judgment de novo. Adeyemi v. District of Columbia, 525 F.3d 

1222, 1225 (D.C. Cir. 2008). Summary judgment is 

warranted “only if, viewing the evidence in the light most 

favorable to [Giles] and giving [her] the benefit of all 

permissible inferences, we conclude that no reasonable jury 

could reach a verdict in [her] favor.” Jones v. Bernanke, 557 

F.3d 670, 674 (D.C. Cir. 2009).

Under the ADA, no covered employer “shall discriminate 

against a qualified individual on the basis of disability in 

regard to . . . [the] discharge of employees . . . and [the] 

privileges of employment.” 42 U.S.C. § 12112(a). The 

DCHRA similarly forbids covered employers from 

terminating any individual “wholly or partially for a 

discriminatory reason based upon the actual or perceived . . . 

disability . . . of any individual.” D.C. CODE § 2-1402.11(a). 

When evaluating claims brought under the DCHRA, 

“decisions construing the ADA [are considered] persuasive.” 

Grant v. May Dept. Stores Co., 786 A.2d 580, 583–84 (D.C. 

2001); see also Hunt v. District of Columbia, 66 A.3d 987, 

990 (D.C. 2013) (“Our decisions under the DCHRA . . .

effectively incorporate judicial construction of related antidiscrimination provisions of the [ADA].”). To demonstrate 

discrimination in violation of the ADA or the DCHRA, the 

plaintiff “must prove that he had a disability within the 

meaning of the ADA, that he was ‘qualified’ for the position 

with or without a reasonable accommodation, and that he 

suffered an adverse employment action because of his 
6

disability.” Duncan v. Washington Metro Area Transit Auth., 

240 F.3d 1110, 1114 (D.C. Cir. 2001) (internal quotation 

marks omitted).

Pursuant to Section 510 of the ERISA, it is unlawful, 

inter alia, to “terminate an employee either in retaliation for 

using a qualified employee health plan or in order to interfere 

with the employee’s use of that plan.” Gioia v. Forbes Media 

LLC, 501 F. App’x. 52, 54 (2d Cir. 2012) (summarizing 29 

U.S.C. § 1140). To prevail on a Section 510 claim, a plaintiff 

must demonstrate the employer specifically intended to 

engage in prohibited activity. Barnhardt v. Open Harvest 

Cooperative, 742 F.3d 365, 369 (8th Cir. 2014). “[N]o action 

lies where the alleged loss of rights is a mere consequence, as 

opposed to a motivating factor behind the termination.” Dytrt 

v. Mountain States Tel. & Tel. Co., 921 F.2d 889, 896 (9th 

Cir. 1990). “Otherwise, every employee discharged by a 

company with an ERISA plan would have a claim under 

§ 510.” Majewski v. Automatic Data Processing, Inc., 274 

F.3d 1106, 1113 (6th Cir. 2001).

In a case such as this, where the plaintiff lacks direct 

evidence of discrimination, ADA, DCHRA, and ERISA 

claims are each evaluated under the familiar burden-shifting 

framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See, e.g., Adeyemi, 525 F.3d at 1226 (applying 

McDonnell Douglas framework to an ADA claim); 

Ottenberg’s Bakers, Inc. v. D.C. Comm’n on Human Rights, 

917 A.2d 1094, 1102 (D.C. 2007) (“In reviewing 

discrimination cases under the [DCHRA], we apply the 

familiar burden-shifting test set forth by the Supreme Court in 

McDonnell Douglas . . . .”); Smith v. District of Columbia, 

430 F.3d 450, 455 (D.C. Cir. 2005) (observing “[c]ourts of 

appeals routinely apply the same standards to evaluate Title 

VII claims as they do ADA claims, ADEA claims, and even 
7

ERISA claims.”) (citation omitted); Barnhardt, 742 F.3d at 

369 (“A plaintiff can establish a § 510 [ERISA] interference

claim either by direct evidence of a specific intent to interfere 

with ERISA benefits or through the McDonnell Douglas

burden-shifting framework.”); Dister v. Cont’l Grp., Inc., 859 

F.2d 1108, 1112 (2d Cir. 1988) (“[T]he McDonnell Douglas

presumptions and shifting burdens of production are . . . 

appropriate in the context of discriminatory discharge cases 

brought under § 510 of ERISA.”).

Under the framework, the plaintiff bears the initial 

burden of demonstrating a prima facie case of discrimination. 

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 

(1981). The burden then shifts to the employer to set forth a 

legitimate, non-discriminatory reason for the challenged 

action. Id. However, as we explained in Brady v. Office of 

Sergeant at Arms, at the summary judgment stage, “once the 

employer asserts a legitimate, non-discriminatory reason [for 

its challenged action], the question whether the employee 

actually made out a prima facie case is ‘no longer relevant’ 

and thus ‘disappear[s]’ and ‘drops out of the picture.’” 520 

F.3d 490, 493 (D.C. Cir. 2008) (quoting St. Mary’s Honor 

Ctr. v. Hicks, 509 U.S. 502, 511 (1993) and Reeves v. 

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(alteration in original)). At that point, the only remaining 

question is “whether the plaintiff produced sufficient evidence 

for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the 

employer intentionally discriminated against the plaintiff on a 

prohibited basis.” Adeyemi, 525 F.3d at 1226; see also 

Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014) 

(stating that after the employer asserts a legitimate, nondiscriminatory reason for its action, “we proceed directly to 

the heart of the matter”).
8

III

A

Here, TEFCU asserted a legitimate, non-discriminatory 

reason for terminating Giles: she was a poor employee. 

TEFCU points to Giles’s 2008 performance review, in which 

she received a LTE for her specific duties as a receptionist 

after being involved in altercations with members. TEFCU 

claims it moved Giles to the scanning position to minimize 

her interaction with customers. Felder, who served as 

TEFCU’s CEO at the time Giles’s position was changed, 

testified that Giles had not been a good employee and that 

Felder decided to change Giles’s role in an effort to “keep her 

on board” instead of firing her. J.A. 77. TEFCU next cites

Giles’s 2009 performance review, explaining Giles was rated 

only a PAR for duties associated with the scanning position

and that the evaluation identifies several mistakes Giles made 

including improperly indexing work and incorrectly recording 

documents.

Smith and Felder testified that shortly after Smith took 

the helm on November 19, 2009, the two had a conversation 

in which Felder recommended Smith fire certain employees, 

including Giles. Felder stated she had considered Giles’s past 

performance reviews before recommending that she be let go. 

Felder testified that she and Smith discussed both Giles’s past 

performance, which Felder considered to be inadequate and 

below average, and a mistake Giles made in which documents 

were scanned to the wrong customers’ accounts. Felder could 

not recall the precise timing of this mistake, and during her 

deposition she first posited that it took place in the weeks 

leading up to Giles’s termination in November 2009 but later 

speculated it came to light during the second quarter of 2009. 

Recounting the discussion with Felder, Smith said the two 
9

decided Giles would not “work out long term with TEFCU” 

and that Felder’s account of Giles’s scanning mistake was 

what “vividly st[uck] out” to her. J.A. 230. Smith decided to 

terminate Giles and informed her on November 24, 2009.

B

Given TEFCU’s proffer, we turn to whether Giles 

“produced evidence sufficient for a reasonable jury to find 

that [TEFCU’s] stated reason was not the actual reason” and 

that the decision to dismiss Giles was actually motivated by a 

perception that the health insurance claims related to her MS 

treatment were causing the premium to increase. Brady, 520 

F.3d at 495. In doing so, we consider “all relevant evidence” 

presented by both Giles and TEFCU. Id.

Giles argues she was not a poor performer and therefore 

TEFCU’s asserted reason for her termination is pretext. She 

claims her move to the scanning specialist position was 

actually a promotion. Further, she points to her July 2009 

performance review in which she received an overall rating of 

FAR, the second-best rating. In some cases, a positive 

evaluation is inconsistent with an employer’s assertion of 

poor performance and therefore suggests pretext. See

Erickson v. Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir. 

2001) (“A history of positive performance evaluations can be 

powerful evidence of satisfactory performance.”). Here, 

however, the review is consistent with Felder and Smith’s 

testimony that Giles performed the record maintenance duties 

associated with her scanning specialist position inadequately,

despite her overall high rating. TEFCU was free to dismiss

Giles based on these perceived performance deficiencies, and 

courts do not serve as “super-personnel department[s] that 

reexamine[]” whether such a decision was wise, sound, or 

fair. Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).
10

Giles relies on the sworn statement of Stefan Bradham, 

who worked for TEFCU at the same time as she.

2

 Bradham 

said Giles’s “performance was consistently very good 

throughout 2009.” J.A. 551. Giles does not allege, however,

that Bradham had a role in deciding whether she should 

continue as a TEFCU employee. Nor does Bradham claim to 

have communicated his positive view of Giles’s performance 

to Felder or Smith.3 His statement is therefore of 

exceptionally limited relevance. Cf. Vatel v. Alliance of Auto 

Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011) (explaining that 

in evaluating whether an employee’s asserted reason is 

pretext, “it is the perception of the decision maker which is 

relevant”) (quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274, 

280 (4th Cir. 2000)); DeJarnette v. Corning Inc., 133 F.3d 

293, 299 (4th Cir. 1998) (“[T]hat plaintiff’s coworkers ‘may 

have thought that [she] did a good job, or that [she] did not 

‘deserve’ [to be discharged], is close to irrelevant.’”) (quoting 

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 

(4th Cir. 1991) (alterations in original)). Bradham’s statement 

does not demonstrate the key players in the decision—Smith 

and Felder—actually believed Giles performed her duties 

adequately, and there is ample evidence for a reasonable jury 

to conclude they did not.

Giles also denies that she filed documents to the incorrect 

TEFCU customers’ accounts, the error Felder and Smith 

claimed weighed heavily in the decision to terminate her. 

 2 Whether Bradham was one of Giles’s supervisors is a disputed 

fact. Giles asserts he was, but TEFCU argues to the contrary and 

points to Giles’s deposition testimony in which she stated she was 

supervised by Percys Felder, Tanya Billups, George Davis, Endia 

Robinson, and Alicia Brown, with no mention of Bradham.

3 To the contrary, a May 12 2009 email from Shirley Broder, 

TEFCU’s human resources consultant, and Felder stated “Stefan is 

having some issues with [Giles’s] performance . . . .” J.A. 1225.
11

While Felder testified she could not recall the precise timing 

of the alleged mistake, Giles clings to Felder’s speculation it 

could have occurred in the weeks leading up to Giles’s 

termination. She then argues a lack of documentation of the 

incident suggests it did not happen. Felder indeed testified 

the incident was documented in an e-mail and said TEFCU 

procedures would require the incident to be documented on a 

paper that Giles would have been asked to sign. 

Documentation of a scanning mistake in the weeks 

immediately before Giles’s termination does not appear in the 

record.

But Giles ignores the portion of Felder’s testimony in 

which she also surmised the mistake could have been 

discovered in the second quarter of 2009. This undermines 

Giles’s position because a documented incident that 

corroborates Felder’s testimony is part of the record. In 

Giles’s July 2009 performance evaluation, Robinson noted, 

“There is a large amount of documentation that is currently 

filed under the incorrect account number. It is important that 

this does not continue to happen because it makes account 

research much more difficult and defeats the purpose of us 

scanning the documents.” J.A. 541. Giles cannot create a 

dispute of material fact by distorting testimony and then 

complaining of a lack of documentation to support her 

garbled narrative.

Next, Giles relies on Bradham’s declaration that he was, 

“aware of no serious mistake that Ms. Giles made in her 

scanning duties in 2009” and that he does “not believe that 

such a mistake took place.” J.A. 551. Bradham explains he 

did not receive “an e-mail or other written notice or 

documentation” of any serious scanning mistake. J.A. 551. 

But Bradham cites the July 2009 performance evaluation as 

proof of Giles’s good work performance, and that same 
12

evaluation noted Giles had improperly filed scanned 

documents.

Even if a jury were to credit Bradham—perhaps by 

inferring either that he did not believe the scanning error 

actually occurred despite its documentation in the evaluation 

or that he did not believe it was “serious”—his statement does 

not reach the heart of the issue: whether Felder and Smith

believed Giles had made a mistake at the time Smith decided 

to dismiss her. See Brady, 520 F.3d at 495 (“[A]n employer’s 

action may be based on a good faith belief, even though the 

reason may turn out in retrospect to be mistaken or false.”) 

(quoting 1 LEX K. LARSON, EMPLOYMENT DISCRIMINATION 

§ 8.04, at 8-73 (2d ed. 2007) (alteration in original)). While 

Giles has set forth no evidence suggesting Felder and Smith 

did not think the error occurred or that it was not significant, 

Felder’s testimony that she reviewed Giles’s performance 

evaluations before recommending she be terminated and the 

notation in the July 2009 evaluation of the improper filing, 

which described the error as significant provide abundant

grounds for a reasonable jury to conclude they did.

Giles further attempts to discredit TEFCU’s asserted 

reason by showing TEFCU’s explanation of her termination 

has varied over time. “[S]hifting and inconsistent 

justifications are ‘probative of pretext.’” Geleta v. Gray, 645 

F.3d 408, 413–14 (D.C. Cir. 2011) (quoting EEOC v. Sears 

Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001)); see also 

Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st 

Cir. 2000) (“[W]hen a company, at different times, gives 

different and arguably inconsistent explanations, a jury may 

infer that the articulated reasons are pretextual.”).

In a January 2010 statement submitted to the EEOC, 

TEFCU noted Giles’s PAR rating for her scanning specialist 
13

duties in the July 2009 performance review and catalogued 

Giles’s altercations with customers. It then stated the decision 

to lay off Giles was “part of a general organizational review” 

and was “made for business reasons only, as the duties for 

which Ms. Giles was primarily responsible no longer require a 

full-time TEFCU employee.” J.A. 554. In its motion for 

summary judgment filed below, TEFCU maintained it 

dismissed Giles because she was performing poorly and 

because eliminating substandard employees was part of a 

strategy TEFCU was pursuing at the time to cut costs and 

restore the company to profitability. On appeal, TEFCU 

asserts only that Giles was terminated because she was a poor 

employee with Felder and Smith stating the scanning mistake 

was the most important performance issue.

Over time, TEFCU went from arguing before the EEOC 

that the decision to terminate Giles was made only for a nonperformance related reason to now claiming poor 

performance is the sole reason. Further, TEFCU did not 

abandon its claim of a cost-cutting reorganization until after 

Smith was deposed and specifically denounced such a 

rationale. A reasonable jury could find TEFCU’s 

explanations to be inconsistent and suspicious and determine 

TEFCU’s most recent justification is “unworthy of credence.” 

Reeves, 530 U.S. at 143. In granting Giles all permissible 

inferences, we find therefore she has made a sufficient—

albeit weak—rebuttal from which a reasonable jury could 

conclude TEFCU’s asserted reason is not the real reason she 

was terminated.

Giles maintains that if a reasonable jury could disbelieve 

TEFCU’s proffered explanation, we must reverse the district 

court’s grant of summary judgment. While “[a]n employer’s 

changing rationale for making an adverse employment 

decision can be evidence of pretext,” Geleta, 645 F.3d at 413–
14

14 (quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 

1160, 1167 (6th Cir. 1996)), there are “instances where, 

although the plaintiff has . . . set forth sufficient evidence to 

reject the defendant’s explanation, no rational factfinder could 

conclude that the action was discriminatory.” Reeves v. 

Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 

(2000); see also Aka v. Washington Hosp. Ctr., 156 F.3d 

1284, 1291 (D.C. Cir. 1998) (en banc) (“[I]n some instances . 

. . the fact that there are material questions as to whether the 

employer has given the real explanation will not suffice to 

support an inference of discrimination.”). This is because 

“the plaintiff’s attack on the employer’s explanation must 

always be assessed in light of the total circumstances of the 

case.” Aka, 156 F.3d at 1292; see also Reeves, 530 U.S. at 

148–49 (“Whether judgment as a matter of law is appropriate 

in any particular case will depend on a number of factors. 

Those include the strength of the plaintiff’s prima facie case, 

the probative value of the proof that the employer’s 

explanation is false, and any other evidence that supports the 

employer’s case and that properly may be considered . . . .”).

A jury may reasonably disbelieve TEFCU’s assertion that 

Giles was terminated solely for poor performance with a 

specific emphasis on a scanning mistake, but no reasonable 

jury could conclude the real reason for her discharge was that 

TEFCU believed her medical expenses were driving up the 

insurance premium. There is simply no evidence Giles’s 

insurance claims had any effect on the premium or that Smith 

or Felder thought they did or could. The record therefore 

does not permit an inference that the cost of insuring Giles 

was a motivating factor in the decision to terminate her.

First, TEFCU argues it did not know—and had no way of 

knowing—what Giles’s treatments cost. As TEFCU was not 

self-insured, CareFirst paid Giles’s medical bills. TEFCU 
15

claims—and Giles does not dispute—that privacy laws 

forbade it from receiving information about the amount of 

employees’ health insurance claims. Consistent with this 

argument, there is no evidence that any person associated with 

TEFCU investigated or reviewed the costs of Giles’s

treatment or those of any other individual. Cf. Dewitt v. 

Proctor Hosp., 517 F.3d 944, 948 (7th Cir. 2008) (selfinsured employer received “stop-loss reports” identifying 

employees with high claims); Trujillo v. PacifiCorp, 524 F.3d 

1149, 1152 (10th Cir. 2008) (self-insured employer reviewed 

health care costs and designated certain claims as “highdollar”). Giles relies on Felder’s acknowledgement that Giles 

told her the infusion treatments were “costly.” J.A. 118–19. 

That Felder had some general awareness Giles was receiving 

“costly” medical treatment does not demonstrate Felder 

thought the treatments were so costly as to be a concern to 

TEFCU.

Further, Giles lacks evidence supporting her contention 

that the costs of her medical treatment caused CareFirst to 

raise the monthly premium for the Blue Preferred Option 1 

plan. She relies heavily on language contained in the letter 

CareFirst sent to TEFCU each year regarding the renewal 

process stating “factors such as prescription drug utilization, 

legislative mandates and provider utilization play key roles in 

determining healthcare costs.” J.A. 344. However, the 

premium for the Blue Preferred Option 1 plan was calculated 

using a community rating methodology4 and therefore derived 

from the claims experience of not just TEFCU but from “all 

 4 Generally, a “[c]ommunity rating establishes premiums for 

uniform benefit programs based on the average cost of all insureds 

in a given geographic area. . . . Some modified forms of community 

rating permit the recognition of the age and sex of the members of 

groups that it covers.” 2 JEFFREY D. MAMORSKY, EMPLOYEE 

BENEFITS HANDBOOK § 46:80 (2014).
16

small groups located in the District of Columbia area with 

fewer than 51 contracts.” Id. The vague language referenced 

by Giles in no way explains whether or how the treatment 

costs of a single individual in the community market could 

significantly impact the premium.

What is more, Giles failed in this litigation to establish

the amount of her medical expenses. She testified her 

monthly infusion treatments were “a little over $4,000 each 

time.” J.A. 834. However, she did not submit 

documentation, such as the explanation of benefits, to 

establish the precise cost of the infusions. Nor did Giles

present evidence as to any other costs associated with her 

medical treatment. Without a precise number, it would be 

difficult for a jury to weigh and assess her claims.

Even if it was possible for one individual’s claims to 

dramatically affect the premium, Giles provides a reasonable 

jury with no cause to believe the fluctuations in the premium 

should be attributed to her medical expenses. She relies on 

the fact that the premium decreased—from $449 per month to 

$437 per month—after she was no longer employed by 

TEFCU as evidence that her health care costs prompted the

previous increases. Giles’s equation of correlation with 

causation is too obviously flawed to be accepted by a 

reasonable jury. While Giles states her medical expenses 

were high, she never claims her costs were the highest or even 

among the highest in the community market. In other words, 

she makes no attempt to isolate her own claims as the cause of 

the fluctuations in the premium, as opposed to those of others. 

Indeed, Giles does not even claim her medical expenses were 

the highest among TEFCU employees enrolled in a CareFirst 

insurance plan. Such a claim seems necessary to her 

argument, because the removal of Giles was far from the only 

change to TEFCU’s enrollment list before the premium 
17

decreased. For example, in August 2009, there were nine

TEFCU employees enrolled in the single employee PPO plan. 

By July 2010, there were eleven, of which only four had been

on the plan in August 2009. Giles fails to distinguish herself 

from any of the other individuals added or removed.

However, the record does support the conclusion that the 

lower premium in 2010 is attributable to a change in the 

substance of the plan and not to its enrollees. As TEFCU 

points out, the single employee PPO plan offered by CareFirst 

in the 2010–2011 renewal letter—Option 6—was different 

than Giles’s plan—Option 1. The premium for the Option 6 

plan was slightly lower, but it called for higher co-pays and 

higher deductibles than had been charged under Option 1. On

the record before us, Giles’s assertion that the rising plan 

premium during the time of her employment and the decrease 

that occurred after she was laid off should be attributed to the 

cost of her medical treatment is simply untethered 

speculation.

Even if Giles had demonstrated her medical costs were or 

could have been the cause of the premium increases, no 

evidence suggests Smith or Felder thought so. Giles points to 

testimony by Felder that Shirley Broder, a human resources 

consultant for TEFCU, advised Felder not to hire Giles as a 

permanent employee because of her MS. Supposing Felder’s 

testimony could somehow be interpreted to suggest Broder’s 

specific concern was that Giles’s medical costs would drive 

up the premium, the fact remains that Felder did not follow 

Broder’s advice and hired Giles with full awareness of her 

condition. Nothing in the record links any discriminatory 

animus Broder may have harbored at the time Giles became a 

full-time employee in 2006 to Giles’s termination three years 

later. Giles points to Felder’s knowledge that her treatment 

was “costly,” but that awareness in no way suggests Felder 
18

believed Giles’s expenses caused or could have caused the 

premium to go up.

Furthermore, there is no suspicious temporal connection 

from which a jury could infer TEFCU’s reason for 

terminating Giles was associated with her medical expenses. 

See Trujillo, 524 F.3d at 1157 (temporal proximity between 

employees’ son’s relapse and the initiation of an investigation 

of alleged time theft that led to their termination contributed 

to “an inference of discrimination”); Nero v. Indus. Molding 

Corp., 167 F.3d 921, 927 (5th Cir. 1999) (holding the 

plaintiff’s “termination followed so shortly after his claim to 

medical benefits that the jury could reasonably infer a 

retaliatory motive”). Giles had been receiving the infusion 

treatments consistently for two years by the time she was laid 

off. And while she argues generally that Felder was aware 

her condition and physical symptoms were worsening and 

necessitated more visits to her doctor, she does not suggest 

there was any significant corresponding increase in the 

expense of her treatment5 or that any specific event would 

have led Felder to believe there was. Moreover, Giles admits

that no one from TEFCU ever initiated a conversation with 

her about her health care costs—not in close proximity to her 

termination or any other time. See, e.g., Gaglioti v. Levin 

Group, Inc., 508 F. App’x 476, 484 –85 (6th Cir. 2012) 

(granting summary judgment for employer where there was 

no evidence of concern about the cost of coverage or a 

discussion of the costs including no evidence of conversations 

about the costs); Dewitt, 517 F.3d at 948 (denying summary 

judgment for employer where it asked the employee about 

 5 In fact, she admits she stopped receiving the infusion treatments in 

October 2009. There is no evidence, however, TEFCU was aware 

of this change.
19

high costs of her husband’s treatment twice in the five months

preceding her termination).

Giles argues TEFCU was looking to reduce the amount it 

spent on employee health insurance at the time she was 

dismissed, suggesting her termination was related to her 

medical expenses. She points to a statement by Felder that as 

CEO she has been concerned with how health insurance costs 

affected TEFCU’s “bottom line.” J.A. 105. In our era of 

ever-escalating health care costs, however, it is inconceivable 

that a CEO would not have at least some background concern 

regarding the impact of those costs on the business’ books. 

Accord Unida v. Levi Strauss & Co., 986 F.2d 970, 980–81

(5th Cir. 1993). There is evidence, moreover, suggesting

TEFCU was not actively on a campaign to reduce health care 

costs when Smith decided to dismiss Giles. Smith testified 

that in November 2009, that year’s health insurance contract 

was already in place and that she would not make any 

decisions regarding health insurance until the next renewal.

Giles next claims TEFCU “forced” a rate renewal earlier 

in the year than the previous renewals, which had each 

become effective August 1, and that this is evidence of 

TEFCU’s desire to receive a lower rate in light of Giles’s 

termination. Despite her accusation, Giles pinpoints no 

evidence to this effect. CareFirst sent the 2010-2011 renewal 

notice in June, just as it had the previous relevant renewal 

notices. While the new premium rate was effective by July 

2010, Giles cites no evidence explaining the timing of the 

effective date or suggesting it occurred earlier than in 

previous years at TEFCU’s behest. Giles also points to 

Smith’s testimony that, in 2011, TEFCU changed its policy 

and began to require employees enrolled on family insurance 

plans to pay 50 percent of the monthly premium instead of 20. 

This change would not have affected Giles, who was enrolled 
20

on a single individual plan, and occurred more than a year 

after she left. It therefore does not imply TEFCU was 

concerned with the rising premium for Giles’s plan at the time 

it terminated her in 2009.

Giles’s last argument to this effect is that the fact that her 

scanning duties were assumed by temporary employees—who 

were not eligible to enroll in TEFCU’s health insurance—

supports an inference that TEFCU terminated her as part of a 

plan to cut insurance expenses. Giles credits Felder’s 

testimony that two temporary employees and one intern took 

over the scanning duties. However, Giles disregards the rest 

of Felder’s testimony on this issue, which takes much of the 

wind out of the argument that TEFCU’s switch to temporary 

employees was pernicious. Felder explained temporary 

employees and interns had performed the scanning duties at 

TEFCU before Giles took on the role of scanning specialist in 

October 2008. Further, Felder’s testimony reveals a 

significant lapse in time between Giles’s dismissal and the 

hiring of the temporary employees and intern, whose start 

dates were May 6, June 21, and September 2, 2010.

Finally, this is not a case “premised upon evidence in the 

record from which a reasonable juror could find that, absent 

invidious discrimination, the challenged employment decision 

was inexplicable.” Barbour v. Browner, 181 F.3d 1342, 

1346–47 (D.C. Cir. 1999); see also Furnco Constr. Corp. v. 

Waters, 438 U.S. 567, 577 (1978) (“[W]hen all legitimate 

reasons for rejecting an applicant have been eliminated as 

possible reasons for the employer’s actions, it is more likely 

than not the employer, who we generally assume acts only 

with some reason, based his decision on an impermissible 

consideration . . . .”). Instead, in uncontroverted testimony, 

Felder and Smith stated that in addition to Giles, two other 

employees severed ties with TEFCU on November 24, 2009. 
21

Smith and Felder explained Theresa Boyd was slated to be 

dismissed that day, but she resigned instead. They further 

stated Bradham was terminated on November 24, 2009, and 

Bradham’s declaration confirms that is the day his tenure at 

TEFCU ended. Smith explained Bradham was not replaced 

with a new employee and that instead Smith mostly took over 

his duties. As for Boyd, her name does not even appear on 

CareFirst’s invoices listing TEFCU employees enrolled in its 

health insurance plans. Instead, Smith and Felder testified 

that as Felder passed the CEO baton to Smith, she 

recommended Boyd, Bradham, and Giles be terminated 

because they would not “fit into [Smith’s] management

style.” J.A. 60. While Felder’s style was “laid back,” Smith’s 

was “aggressive.” Id. at 61. Smith confirmed she accepted

Felder’s recommendations and that she specifically chose to 

terminate Giles because she would not tolerate poor 

performance.

“[W]e do not routinely require plaintiffs to submit 

evidence over and above rebutting the employer’s stated 

explanation in order to avoid summary judgment.” Hamilton 

v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (internal 

quotation marks omitted). But an employer is entitled to 

summary judgment where “the plaintiff created only a weak 

issue of fact as to whether the employer’s reason [for the 

termination] was untrue and there [is] abundant and 

uncontroverted independent evidence that no discrimination 

[has] occurred.” Reeves, 530 U.S. at 148 (citing Aka, 156 

F.3d at 1291–92). This is such a case. Giles rebutted 

TEFCU’s asserted reason for her termination by highlighting 

its inconsistencies with TEFCU’s previous explanations. 

Giles thereby showed a jury could reasonably discredit 

TEFCU’s explanation, but her rebuttal is weak and did not 

undercut poor performance as a possible reason for her 

termination. Instead, TEFCU submitted uncontroverted 
22

evidence that two other employees were recommended for 

termination on the same day as Giles, and there is no 

suggestion this recommendation was based upon the other 

two employee’s health status or their impact on insurance 

costs. The timing and circumstances of Giles’s termination 

also strongly corroborate the evidence that Smith relied upon 

Felder’s recommendations, making the decision to terminate 

Giles because—as with the two other employees—her 

performance would not comport with Smith’s management 

style. Moreover, the evidence submitted by Giles is 

exceedingly weak, as she failed to establish either that her 

medical expenses were in fact causing the dramatic rise in the 

premium or that Smith or Felder thought they were. See id. at 

149 (explaining “whether judgment as a matter of law is 

appropriate” depends on, inter alia, “the strength of the 

plaintiff’s prima facie case”). We conclude that on this record 

no reasonable jury could find TEFCU terminated Giles 

because of the costs associated with insuring her, as an 

individual with MS. Therefore, the district court’s grant of 

summary judgment to TEFCU was proper.

IV

The district court distinguished between the disability 

discrimination claims under the ADA and the DCHRA and 

the retaliation for use of medical benefits claim under ERISA. 

In granting summary judgment to TEFCU on the ADA and 

DCHRA claims, the district court found Giles’s “argument 

concedes that [TEFCU] terminated her to save health care 

costs, and not because she was disabled.”6

 Giles, 32 F. Supp. 

3d at 73 (quoting Tramp v. Associated Underwriters, Inc., No. 

8:11CV371, 2013 WL 3071258 (D. Neb. June 17, 2013)). 

 6 TEFCU does not dispute that Giles’s MS is an ADA qualifying 

disability.
23

See also Dewitt, 517 F.3d at 953 (Posner, J., concurring) 

(arguing there is no “disability discrimination” where an 

employer terminates an employee because of medical 

expenses and that employer would “discriminate against any 

employee who[] . . . ran up a big medical bill” regardless of 

whether the expenses were “due to a condition that did not 

meet the statutory definition of a disability”). On appeal, 

Giles argues the district court erred and termination based on 

the cost of an employee’s disability violates the ADA. 

Appellant’s Br. 46–47 (citing, inter alia, Pamythes v. City of 

Janesville, 181 F. App’x 596 (7th Cir. 2006) (holding a 

plaintiff who claimed to have been discharged because of the 

cost of treating his cystic fibrosis had shown sufficient 

evidence of pretext to preclude summary judgment on his 

ADA and Rehabilitation Act claims); Fraturro v. Gartner, 

Inc., 2013 WL 160375, *12 (D. Conn. Jan 15, 2013) (stating a 

reasonable jury could infer “anti-disability animus was a 

motivating factor in the decision to terminate” the plaintiff

where the employer had an “admitted desire to reduce health 

insurance costs arising from chronic illnesses”)); see also 

Trujillo, 524 F.3d at 1160–61 (“[T]he Trujillos provided 

sufficient evidence that the decision to terminate them was 

based on discriminatory intent to violate the ADA. That 

evidence also supports an inference that their discharge was 

motivated by an intent to interfere with their ERISA 

benefits.”). TEFCU does not provide an argument in support 

of the district court’s ruling.

We find it unnecessary to reach the issue. Even assuming 

discrimination based on the costs associated with insuring a 

person with a disability is discrimination on the basis of the 

disability, Giles’s ADA and DCHRA claims cannot survive 

TEFCU’s motion for summary judgment for the reasons 

discussed above. Therefore we need not and do not address 
24

the question of whether Giles’s allegations could properly 

form the bases of ADA and DCHRA claims.

V

Lastly, Giles appeals the district court’s denial of her 

motion for discovery sanctions. The district court may 

sanction a party for “fail[ure] to obey an order to provide or 

permit discovery.” FED. R. CIV. P. 37(b)(2). Under Rule 37, 

the district court has “broad discretion to respond, or not to 

respond, to alleged abuses of the discovery process.” Exum v. 

Gen. Elec. Co., 819 F.2d 1158, 1164 (D.C. Cir. 1987); see 

also Perkinson v. Gilbert/Robinson, Inc., 821 F.2d 686, 689

(D.C. Cir. 1987) (describing the district court’s discretion as 

“considerable”). When reviewing the district court’s denial of 

sanctions, the question is not whether we would have ordered 

sanctions, but instead is whether the district court abused its 

discretion in declining to do so. See Nat’l Hockey League v. 

Metro. Hockey Club, 427 U.S. 639, 642 (1976); see also 

Conseil Alain Aborudaram, S.A. v. de Groote, 460 F.3d 46, 52 

(D.C. Cir. 2006).

The district court concluded Giles’s motion for sanctions 

was “moot” as to the documentation of TEFCU’s insurance 

costs, reasoning Giles had not raised her “ERISA claim until 

three years after her termination” and therefore “there was no 

reason why the litigation hold should have covered all 

documents related to the company’s health insurance costs.” 

Giles, 32 F. Supp. 3d at 74 n.3. Regardless, the district court 

found Giles’s objections moot, because she had received 

sufficient evidence of the insurance premium rates from 

CareFirst. Id. It then found no other ground for imposing 

sanctions. Id. Giles asks us to reverse this decision. While 

Giles reiterates the reasons for her request for discovery 

sanctions, she provides no citation to authority or to the 
25

record demonstrating the district court’s denial of her request 

was premised upon an erroneous conclusion of law, an 

erroneous factual finding, or that it was otherwise 

unreasonable. Cf. Fencorp, Co. v. Oh. Ky. Oil Corp., 675 

F.3d 933, 942 (6th Cir. 2012). We therefore find no showing 

of an abuse of discretion and affirm the district court’s denial 

of Giles’s motion for sanctions.

VI

For the foregoing reasons, the district court’s judgment is 

affirmed.

So ordered.