USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2261
GREGORY WARREN KELLY,
Plaintiff – Appellant,
v.
TOWN OF ABINGDON, VIRGINIA,
Defendant – Appellee.
Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:19-cv-00032-JPJ-PMS)
Argued: September 20, 2023 Decided: January 2, 2024
Before WILKINSON and GREGORY, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge Wilkinson and Judge Gregory joined.
ARGUED: Monica Lynn Mroz, STRELKA EMPLOYMENT LAW, Roanoke, Virginia, for Appellant. Cameron Scott Bell, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Appellee. ON BRIEF: Thomas E. Strelka, L. Leigh R. Strelka, STRELKA EMPLOYMENT LAW, Roanoke, Virginia, for Appellant. Ramesh Murthy, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Appellee. USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 2 of 20
DIANA GRIBBON MOTZ, Senior Circuit Judge:
Gregory Kelly brought claims against his former employer, the Town of Abingdon,
for discrimination, retaliation, interference, and failure to accommodate in violation of the
Americans with Disabilities Act (“ADA”). This appeal arises from the district court’s
dismissal of Kelly’s discrimination and interference claims, and its legal ruling that a letter
Kelly sent the Town in January 2018 was not an accommodation request under the ADA.
Because Kelly alleged no facts (1) warranting an inference of disability discrimination; or
(2) connecting his asserted “accommodation request” to his disabilities, we must affirm the
judgment of the district court.
I.
Kelly appeals the dismissal of his original complaint for failure to state a claim, and
the partial denial of his amended complaint on futility grounds. We recount the facts as
alleged in Kelly’s amended complaint, and take them as true for the purpose of this appeal.
See, e.g., Minor v. Bostwick Labs., Inc., 669 F.3d 428, 430 n.1 (4th Cir. 2012).
A.
On March 1, 2005, the Town of Abingdon hired Kelly as Town Attorney. One year
later, the Town appointed him Town Manager, subject to an employment contract that
guaranteed him nine months’ severance pay. As Town Manager, Kelly was responsible
for managing the Town’s day-to-day business affairs, supervising town employees, and
responding to inquiries from stakeholders. Kelly alleges that he excelled in this role, and
exceeded the Town’s expectations throughout his employment.
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According to Kelly, that all changed when Town Hall became embroiled in political
infighting. He maintains that, over time, the elected Mayor and Town Council engaged in
an escalating pattern of “unprofessional and . . . outrageous behavior” that created a caustic
work environment for town employees. Elected officials allegedly humiliated and harassed
directors and staff members, and leveraged the threat of termination to advance their
political agendas. Among other examples, Kelly contends that Mayor Wayne Craig
harassed Kelly’s staff and undermined his ability to manage them; that former Mayor Cathy
Lowe threatened to fire Kelly if he did not “get on board” with her political goals and
appoint her personal friends to favorable positions; and that Vice Mayor Rick Humphreys
berated Kelly in public meetings — and subjected him to drunken, belligerent, profane
phone calls at odd hours of the night. 1
Kelly suffers from anxiety, depression, and high blood pressure. As the hostility at
work intensified, Kelly asserts that his health deteriorated, and his disabilities became
intolerable. He maintains that he endured crippling anxiety, disorientation, insomnia, and
hopelessness; his blood pressure spiked, he experienced dizzy spells, and he had panic
attacks at work, disrupting his ability to perform basic tasks. And he claims that Town
employees and department heads witnessed the mistreatment he suffered and its deleterious
1 Kelly alleges that he was not the only employee subjected to this mistreatment. He claims that Town Attorney Deborah Icenhour and Town Clerk Cecile Rosenbaum were also targets of the Council’s ire; both joined his letter to the Town and ultimately resigned. He also alleges that the same council members mistreated the Director of Tourism and Director of Public Works, and harassed other unnamed Town staff. Additionally, he notes that Rosenbaum reported being sexually harassed in Town Hall, and Mayor Craig made light of her harassment. 3 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 4 of 20
effects on his health. They allegedly congregated in Kelly’s office after Council meetings
to console him, bought him a blood pressure monitor, and urged him to seek medical
attention.
As conditions deteriorated, in September and December 2017, Kelly filed Charges
of Discrimination with the Equal Employment Opportunity Commission (“EEOC”).
According to Kelly, “all of the department heads” were aware of his EEOC charges, and
“his filings were a well-discussed subject matter at the office.” He also asserts that these
charges informed the Town of his disabilities, 2 and that the Town responded by sifting
through his private communications and escalating its pattern of harassment.
On January 10, 2018, a law firm representing Kelly and two of his colleagues sent
a letter to Town authorities seeking changes to “the daily office environment” at Town
Hall. Although this letter (the “January 2018 Letter”) was entitled “Accommodations
Requests,” and referenced the Americans with Disabilities Act in its opening line, the
letter’s “overall aim” was “to foster a well-running office, based on the principles of mutual
respect, clear communication, and . . . well-defined roles.” It articulated twelve “requests”
to facilitate this goal, including compliance with the Code of Ethics; adherence to defined
roles; an end to the incessant threats of termination; courtesy and care in communications;
equal treatment for employees; improved gender diversity in hiring and management; an
acknowledgment that Town Management is a team; and the development of written
2 The record does not contain these EEOC charges. However, during oral argument, both parties acknowledged that the charges described Kelly’s disabilities, and the Town conceded that its officials knew that Kelly suffers from anxiety, depression, and high blood pressure. 4 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 5 of 20
policies governing workplace conduct. The letter did not mention Kelly’s anxiety,
depression, or high blood pressure, and did not explain how the proposed changes might
alleviate these disabilities.
Several months later, in April 2018, Kelly claims that the Town’s legal counsel sent
him a “token communication,” informing him that the Town would engage in an interactive
process to determine an appropriate accommodation for his disabilities. Kelly reached out
to the Town to explore possible accommodations, and asked his supervisors to grant him
“short breaks and reduced stress.” He also discussed his disabilities with Lowe,
Humphreys, Craig, and other council members through a series of individual meetings, and
informed them of the deleterious toll the situation at Town Hall was taking on his health
and well-being.
According to Kelly, the Town rebuffed his attempts to pursue an interactive process.
Kelly claims the council members declared they are “not subject to the requirements of
ordinary business employers.” Then, according to Kelly, they stepped up their harassment.
Various elected officials increased Kelly’s workload and escalated their threats to replace
him or terminate his employment. They addressed him with profanity, berated him in
public meetings, ridiculed him for parking away from Town Hall to preserve his health,
and countermanded his instructions to Town directors and employees.
Kelly resigned on May 7, 2018, claiming constructive discharge.
B.
On July 27, 2018, Kelly filed another Charge of Discrimination with the EEOC —
his third, following the EEOC charges he filed in September and December of 2017. The
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EEOC issued a Dismissal and Notice of Right to Sue on May 22, 2019. Kelly filed suit on
August 18, 2019, asserting claims for discrimination, retaliation, failure to accommodate,
and interference, all in violation of the ADA. He also raised a claim for breach of contract,
grounded in the Town’s failure to award him nine months’ severance pay in accordance
with his employment agreement.
On November 1, 2019, the Town filed a motion to dismiss. Following a hearing,
the district court granted this motion as to Kelly’s ADA claims, but permitted his breach
of contract claim to proceed. Kelly requested leave to amend, filing a proposed Amended
Complaint with new allegations targeting the deficiencies identified by the district court.
On May 20, 2020, the court granted this motion in part and denied it in part — accepting
the Amended Complaint as to his retaliation and accommodation claims, and denying the
motion as futile with respect to his discrimination and interference claims.
Although the district court allowed Kelly’s retaliation and accommodation claims
to proceed, the court curtailed the scope of these claims. Specifically, the court ruled as a
matter of law that the January 2018 Letter was not an accommodation request, and could
not serve as a predicate for either claim. This decision limited Kelly’s accommodation
claim to his request for “short breaks and reduced stress,” and restricted the scope of his
retaliation claim to his allegations of escalating harassment following his EEOC filings.
The court ultimately entered summary judgment for the Town on the surviving ADA
claims, but permitted the breach of contract claim to proceed to trial, where a jury rendered
a verdict for the Town.
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On appeal, Kelly challenges the district court’s dismissal of his ADA discrimination
and interference claims, and its legal determination that the January 2018 Letter is not an
accommodation request within the contemplation of the ADA. The district court made
these rulings when it granted the Town’s motion to dismiss his original complaint, and
partially denied his motion to amend on futility grounds. Both rulings are evaluated under
Rule 12(b)(6), and we review both decisions de novo. See Buscemi v. Bell, 964 F.3d 252,
262 (4th Cir. 2020); Davison v. Randall, 912 F.3d 666, 690 (4th Cir. 2019). As Kelly’s
Amended Complaint offers more detailed allegations in support of his claims, we focus our
review on the district court’s evaluation of the proposed Amended Complaint. See, e.g.,
United States ex rel. Ahumada v. NISH, 756 F.3d 268, 273–74 (4th Cir. 2014); Scott v.
Family Dollar Stores, Inc., 733 F.3d 105, 112 (4th Cir. 2013).
II.
Kelly initially argues that the district court erred when it limited the scope of his
retaliation and accommodation claims by ruling that the January 2018 Letter was not an
accommodation request under the ADA. 3 See Lashley v. Spartanburg Methodist Coll., 66
3 The Town argues that we cannot reach this issue because the district court accepted Kelly’s Amended Complaint as to his accommodation and retaliation claims, and permitted both claims to proceed into discovery based on other theories. But “an interlocutory order from which no appeal lies is merged into the final judgment and open to review on appeal from that judgment.” Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 120 (4th Cir. 2015) (quoting Hellerstein v. Mr. Steak, Inc., 531 F.2d 470, 474 (10th Cir. 1976)). Kelly could not have previously appealed the district court’s finding that the January 2018 Letter is not an accommodation request, as that finding was embedded in the court’s interlocutory order granting his motion to amend. Cf. Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 206 (Continued) 7 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 8 of 20
F.4th 168, 179 (4th Cir. 2023) (holding that an employer cannot be liable for failure to
accommodate until the employee has provided notice of his need for an accommodation);
Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 706 (4th Cir. 2001) (holding that an
accommodation request constitutes protected activity that may sustain a retaliation claim).
We reject this argument. Although Kelly plausibly alleged that the Town was aware of his
anxiety, depression, and high blood pressure, the January 2018 Letter did not inform the
Town that he was seeking accommodations for these conditions.
The Americans with Disabilities Act requires employers to provide their disabled
employees with reasonable accommodations that enable them to fulfill the essential duties
of their positions. 42 U.S.C. § 12112(b)(5)(A); see also Cowgill v. First Data Techs., Inc.,
41 F.4th 370, 378 (4th Cir. 2022). Employers need only accommodate “the known physical
or mental limitations of an otherwise qualified employee with a disability.” See Wirtes v.
City of Newport News, 996 F.3d 234, 238 (4th Cir. 2021) (cleaned up). Before an employer
is required to accommodate a disabled employee, “the employee must make an adequate
request, thereby putting the employer on notice.” Lashley, 66 F.4th at 179 (quoting Wilson
v. Dollar Gen. Corp., 717 F.3d 337, 347 (4th Cir. 2013)); see also Taylor v. Principal Fin.
Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996) (“[I]t is the employee’s initial request for an
accommodation which triggers the employer’s obligation to participate in the interactive
process of determining one.”).
(4th Cir. 2006) (“A [ruling on] a motion to amend a complaint is not a final order, nor is it an appealable interlocutory or collateral order.”). That order has now merged into the final judgment, and can properly be challenged on appeal. 8 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 9 of 20
It is not difficult to request an accommodation. To trigger an employer’s duty to
accommodate, a disabled employee need only “communicate[] [his] disability and desire
for an accommodation.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 581 (4th
Cir. 2015). In this initial request, an employee need not specify “the precise limitations
resulting from the disability,” see Lashley, 66 F.4th at 179 (cleaned up), or “identify a
specific, reasonable accommodation,” Jacobs, 780 F.3d at 581. Rather, when a valid
request leaves “the precise nature of the disability or desired accommodation” ambiguous,
the employer should seek clarification. Mueck v. La Grange Acquisitions, L.P., 75 F.4th
469, 487 n.14 (5th Cir. 2023) (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804
(7th Cir. 2005)). That is because ADA regulations contemplate that the employer will
pursue an “informal, interactive process” with its disabled employees to ascertain the extent
of their disabilities and the range of accommodations that might address them. Wilson, 717
F.3d at 346 (quoting 29 C.F.R. § 1630.2(o)(3)).
Neither party disputes that Kelly informed the Town that he suffers from anxiety,
depression, and high blood pressure. The Town conceded this point during oral argument,
and the Amended Complaint alleges as much. Kelly claims that the EEOC charges he filed
in late 2017 placed the Town on notice of his disabilities; that the department heads were
aware of his charges of discrimination; and that “his filings were a well-discussed subject
matter at the office.” Cf. Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012)
(observing that an EEOC filing “ensures that the employer is put on notice of the alleged
violations” (quoting Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005))). Accepted as
true, and viewed in Kelly’s favor, these allegations suggest the Town knew of Kelly’s
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disabilities at all relevant times. And as the Town had notice of Kelly’s disabilities, this
appeal turns on whether the January 2018 Letter adequately communicated his desire for
an accommodation.
While the burden of requesting an accommodation is light, not every work-related
request by a disabled employee constitutes a request for accommodation under the ADA.
Our sister circuits have held that while a request need not “formally invoke the magic words
‘reasonable accommodation,’ it nonetheless must make clear that the employee wants
assistance for his or her disability.” Foster v. Mountain Coal Co., 830 F.3d 1178, 1188
(10th Cir. 2016) (cleaned up); Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir. 2002); Jones
v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000); see also Gaines v. Runyon, 107
F.3d 1171, 1175 (6th Cir. 1997) (requiring “a causal relationship” between the disability
and the putative request). The adequacy of a request depends on how a reasonable
employer would view the employee’s communication in the surrounding circumstances.
Kowitz v. Trinity Health, 839 F.3d 742, 747–48 (8th Cir. 2016); Conneen v. MBNA Am.
Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003) (“[C]ircumstances must at least be sufficient
to cause a reasonable employer to make appropriate inquiries about the possible need for
an accommodation.”). To properly invoke the ADA, the communication must be
“sufficiently direct and specific,” providing notice that the employee needs a “special
accommodation” for a medical condition. EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1049
(10th Cir. 2011) (quoting Calero-Cerezo v. DOJ, 355 F.3d 6, 23 (1st Cir. 2004)).
This is consistent with agency guidance on the ADA’s accommodation provisions.
The EEOC has opined that an employee seeking an accommodation “need not mention the
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ADA or use the phrase ‘reasonable accommodation,’” but must inform his employer that
the employee requires “an adjustment or change at work for a reason related to a medical
condition.” EEOC, Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, 2002 WL 31994335, at *4 (Oct. 17,
2002); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (holding
that “[a]n employee is not required to use any particular language when requesting an
accommodation but need only inform the employer of the need for an adjustment due to a
medical condition.” (cleaned up)).
These limitations enable employers to differentiate between protected requests for
accommodation and everyday workplace grievances. As discussed above, to kickstart the
interactive process, “the employee must make an adequate request, thereby putting the
employer on notice.” Lashley, 66 F.4th at 179 (quoting Wilson, 717 F.3d at 347). But an
employee may seek changes to his working conditions for any number of reasons unrelated
to a disability, such as “the kind of personality conflict that pervades many a workplace.”
Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008). Merely labelling a list of suggestions
an “accommodation request” is not enough to inform the employer that the employee is
requesting workplace changes to address his disabilities, rather than other, unrelated issues.
Accordingly, just as an employee need not “formally invoke the magic words ‘reasonable
accommodation,’” Foster, 830 F.3d at 1188 (cleaned up), those magic words are not
sufficient to trigger the employer’s duty to pursue the ADA interactive process. Instead,
to place the employer on notice, there must be a logical bridge connecting the employee’s
disability to the workplace changes he requests. Though this bridge need not be explicit in
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the accommodation request, the substance of the request must permit the employer to infer
that the request relates to the employee’s disability. The substance of the employee’s
communication, not its title, determines whether the ADA applies.
That logical bridge is absent here. Although the January 2018 Letter is entitled
“Accommodations Requests,” and references the ADA in its opening line, its content has
no connection to anyone’s disabilities. Its stated theme is only “to foster a well-running
office based on the principles of mutual respect, clear communication, and . . . well-defined
roles.” Most of the letter’s suggestions — such as gender diversity in hiring, respect for
defined roles, and adherence to the Town Charter — have no perceptible relation to Kelly’s
disabilities at all. Accordingly, the letter’s substance undercuts its label. A reasonable
employer could well read this letter only as a list of grievances and suggestions issued in
response to workplace politics and personality conflicts. As the January 2018 Letter simply
does not “make clear that [Kelly] wants assistance for his [] disability,” Foster, 830 F.3d
at 1188 (quoting C.R. Eng., 644 F.3d at 1049), the district court did not err in concluding
that this letter was not an accommodation request within the meaning of the ADA. 4
4 Kelly claims the district court erred by finding that the twelve requests outlined in the January 2018 Letter were not “reasonable accommodations for his specific disability.” He argues that an ADA plaintiff need not prove that an accommodation is reasonable at the motion to dismiss stage. Cf. Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 507– 08 (4th Cir. 2016) (“[I]t ‘is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.’” (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003)). But the district court did not find that the changes listed in the January 2018 Letter were unreasonable or unfeasible — it found they were not accommodation requests at all.
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Kelly maintains that it is immediately apparent why a more organized, less stressful
working environment would alleviate his anxiety, depression, and high blood pressure. But
that alone does not change the substance of the letter or transform the letter into a request
for accommodations. See id.; Jacobs, 780 F.3d at 581 (holding that the employee must
communicate a desire for an accommodation); C.R. Eng., Inc., 644 F.3d at 1049 (holding
that a request must be “sufficiently direct and specific” (cleaned up)). Personality conflicts,
technical difficulties, and challenging assignments can all exacerbate anxiety symptoms.
But employees frequently request workplace changes to address these situations for reasons
other than their disabilities, such as workplace comfort or efficiency. Under Kelly’s
argument, an employee with anxiety would be entitled to the full protections of the ADA
anytime his employer could anticipate that such changes might ameliorate his symptoms.
Such a result would be untenable. 5
III.
Kelly next argues that the district court erred by dismissing his ADA discrimination
claim, and denying leave to amend on this issue. Because he offers no facts that warrant a
reasonable inference of disability discrimination, we must also reject this argument.
5 At all times, the relevant question is whether the employee has placed the employer on notice of his desire for an accommodation by connecting his request to his disabilities. For example, an employee who informs his supervisor that workplace personality conflicts are exacerbating his anxiety symptoms may or may not be entitled to an accommodation. But an employee who complains about such conflicts in a vacuum, and does not provide the context that would permit an employee to connect this concern to his disabilities, has not requested an accommodation under the ADA.
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The ADA prohibits wrongful discharge as a form of disability discrimination. 6 To
state a claim for wrongful discharge, the plaintiff must allege that “(1) he was a qualified
individual with a disability; (2) he was discharged; (3) he was fulfilling his employer’s
legitimate expectations at the time of discharge; and (4) the circumstances of his discharge
raise a reasonable inference of unlawful discrimination.” Reynolds v. Am. Nat’l Red Cross,
701 F.3d 143, 150 (4th Cir. 2012) (cleaned up) (quoting Rohan v. Networks Presentations
LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004)). Kelly plausibly alleges that he is disabled,
that he was constructively discharged, 7 and that he was fulfilling the Town’s legitimate
expectations at the time of his constructive discharge. But he alleges no facts suggesting
that the Town harbored a discriminatory motive.
To raise a reasonable inference of disability discrimination in a wrongful discharge
case, an employee must allege that his disability was a “but-for” cause of his termination.
Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 235–36 (4th Cir. 2016). “The
6 “Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment— courts have routinely used Title VII precedent in ADA cases.” Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001); accord Israelitt v. Ent. Servs. LLC, 78 F.4th 647, 655 n.8 (4th Cir. 2023); Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999). Accordingly, our precedent for evaluating discrimination and retaliation claims under Title VII informs our analysis of the same theories of relief under the ADA. 7 An employee is “constructively discharged” if he resigns after his “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (cleaned up). Kelly offers specific examples of pervasive hostile conduct and asserts that his working conditions exacted a debilitating toll on his physical and mental health. He also claims that this conduct escalated in frequency and severity in the months preceding his resignation. The district court found these claims sufficient to plausibly allege constructive discharge. For the purpose of this appeal, we assume that the district court was correct. 14 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 15 of 20
mere fact that a certain action is potentially consistent with discrimination does not alone
support a reasonable inference that the action was motivated by bias.” See Bing v. Brivo
Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020). If “we would have to ‘speculate’ to ‘fill in
the gaps’” regarding the defendant’s motive, the circumstances do not warrant a reasonable
inference of discrimination. See id. (quoting McCleary-Evans v. Md. Dep’t of Transp.,
State Highway Admin., 780 F.3d 582, 586 (4th Cir. 2015)). Kelly acknowledges that he
“has not pled specific facts that allege a causal connection” between the Town’s conduct
and his disabilities. Instead, he argues that the same allegations that support his failure-to-
accommodate and retaliation claims also support a reasonable inference of discrimination.
We are not persuaded.
First, Kelly asserts that the Town’s failure to engage in an interactive process after
he submitted the January 2018 Letter supports an inference of disability discrimination.
See, e.g., Sheng v. M&TBank Corp., 848 F.3d 78, 86–87 (2d Cir. 2017) (holding “that an
employer’s failure to engage in a good faith interactive process can be introduced as
evidence tending to show disability discrimination”). Because the January 2018 Letter was
not a valid accommodation request, this argument fails.
Second, Kelly argues that the temporal proximity between his EEOC filings and his
constructive discharge, coupled with the Town’s escalating hostility during this period,
supports a reasonable inference of discrimination. He relies not on discrimination cases
but on retaliation cases to so argue. In retaliation cases, temporal proximity suggests a
correlation between an employee’s protected action and his employer’s adverse reaction.
Holloway v. Maryland, 32 F.4th 293, 300 (4th Cir. 2022). If the two events are attenuated,
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“courts may look to the intervening period for other evidence of retaliatory animus.”
Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007) (quoting Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)).
Although there is some evidentiary overlap between discrimination and retaliation, 8
discrimination and retaliation claims rely on different theories of motive. “[T]he ultimate
question in every employment discrimination case . . . is whether the plaintiff was the
victim of intentional discrimination.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d
289, 295 (4th Cir. 2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 153 (2000)). In contrast, “[t]he very premise of a retaliation claim is that the employer
has subjected an employee to adverse consequences in response to her complaint of
discrimination.” Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020). An employer who
retaliates against an employee for lodging a complaint is not necessarily motivated by
discriminatory animus. Cf. id. (“The necessary causal link is between the employee’s
complaint and the adverse action, not between her sex and the adverse action.”).
Accordingly, while temporal proximity between an EEOC charge and a retaliatory act may
support a discrimination claim, the two theories do not always coincide. To present an
8 In a discrimination case, no less than a retaliation case, “close temporal proximity weighs heavily in favor of . . . causation.” Cowgill, 41 F.4th at 380 (cleaned up); see, e.g., id. at 381 (holding that an “extremely short time gap” between an employee’s use of approved FMLA leave and placement on an improvement plan supported an inference of discrimination); Jacobs, 780 F.3d at 575 (holding that an employee’s firing “three weeks after sending her e-mail disclosing her disability and requesting an accommodation” raised a jury question as to discriminatory motive). 16 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 17 of 20
inference of discrimination, the plaintiff must allege that the employer was motivated by
his disability, not simply his protected action.
Here, while Kelly’s allegations sufficed to state a retaliation claim, they do not raise
an inference of discrimination. At most, his claim that the Town retaliated against him
following his EEOC filings is “potentially consistent” with disability discrimination. Bing,
959 F.3d at 618. But Kelly fails to connect the dots. He offers nothing to suggest that the
Town mistreated him because of his disabilities, rather than personal and political conflicts.
See Gentry, 816 F.3d at 236 (requiring plaintiff to establish “but-for” causation between
their disability and their discharge). Nor does he claim the Town treated others differently:
According to the Amended Complaint, many of the same council members harassed the
Town Attorney, the Town Clerk, the Director of Public Works, the Director of Tourism,
and other unnamed town staff. Cf. Cowgill, 41 F.4th at 381 (emphasizing that “evidence
that other employees who were similarly situated to the plaintiff (but for [his disability])
were treated more favorably” is “especially relevant” (quoting Laing v. Fed. Exp. Corp.,
703 F.3d 713, 719 (4th Cir. 2013))). Because the district court could only have inferred
disability discrimination by speculating as to the Town’s motivation, Bing, 959 F.3d at 618,
it did not err in dismissing Kelly’s discrimination claim.
IV.
Finally, Kelly argues that the district court erred in dismissing his claim for ADA
interference, and denying leave to amend with respect to this issue. Because he offers no
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allegation suggesting that the Town harbored a discriminatory motive or took any steps to
prevent him from exercising his ADA rights, we also must reject this argument.
An employer may not “coerce, intimidate, threaten, or interfere with” an employee’s
efforts to exercise his rights under the Americans with Disabilities Act. See 42 U.S.C.
§ 12203(b). We have not yet interpreted § 12203(b), but both parties apply the framework
adopted by the Seventh Circuit, requiring an employee to allege as follows:
(1) [he] engaged in activity statutorily protected by the ADA; (2) [he] was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered on account of [his] protected activity; and (4) the defendants were motivated by an intent to discriminate.
Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550–51 (7th Cir. 2017); see also Brown
v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003). The statutory term “interfere with”
is broader than retaliation, and captures “all practices which have the effect of interfering
with the exercise of rights” under the ADA. See Brown, 336 F.3d at 1191 (cleaned up).
But it is not read “so broad as to prohibit ‘any action whatsoever that in any way hinders a
member of a protected class.’” Id. at 1192 (quoting Mich. Prot. & Advocacy Serv. v. Babin,
18 F.3d 337, 347 (6th Cir. 1994)).
Assuming without deciding that the foregoing standard applies, 9 Kelly fails to state
a claim for ADA interference. First, he offers nothing to suggest that the Town “coerced,
9 The Seventh Circuit adopted the foregoing four-factor test from Fair Housing Act (“FHA”) cases on the grounds that the ADA’s interference provision, 42 U.S.C. § 12203(b), closely mirrors the FHA’s interference provision, 42 U.S.C. § 3617. See Frakes, 872 F.3d at 550; see also Brown, 336 F.3d at 1191. But because we have yet to interpret the FHA’s interference provision, that same line of reasoning may not yield the (Continued) 18 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 19 of 20
threatened, intimidated, or interfered” with the exercise of his rights under the ADA.
Frakes, 872 F.3d at 551. Although the Town’s hostile conduct assertedly exacerbated
Kelly’s disabilities, he makes no allegation that the Town engaged in this behavior in order
to prevent him from filing EEOC charges, requesting further accommodations, or pursuing
another protected action under the ADA. And the mere fact that this conduct might have
had an adverse effect on his health does not amount to unlawful interference. Cf. Brown,
336 F.3d at 1192 (holding that interference requires more than action that “hinders a
member of a protected class” (cleaned up)).
Second, even if Kelly could plead the interference element, he fails to allege that
the Town harbored a discriminatory motive for the reasons discussed above. Kelly claims
that the Town was rife with political turmoil, that Town Hall was filled with charged,
conflicting personalities, and that he often found himself in conflict with elected officials.
Those allegations paint a picture of a workplace characterized by hostility and conflict.
But however seriously the conditions at Town Hall may have exacerbated Kelly’s anxiety,
depression, and high blood pressure, Kelly fails to allege that Town officials harassed him
because of these disabilities. Absent such allegations, he fails to show that the Town was
“motivated by an intent to discriminate.” Frakes, 872 F.3d at 551. Accordingly, the district
court did not err by dismissing his interference claim.
same result. Moreover, at least one Circuit reads the FHA’s interference provision in a manner that does not require discriminatory motive. See Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 112–13 (3d Cir. 2017). As the parties did not brief or argue the parallels between the FHA and the ADA, or the different prevailing interpretations of both provisions, we reserve this issue for another case. 19 USCA4 Appeal: 21-2261 Doc: 29 Filed: 01/02/2024 Pg: 20 of 20
For the foregoing reasons, the judgment of the district court is in all respects
AFFIRMED.