USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 1 of 25
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-1382
JEFFREY B. ISRAELITT,
Plaintiff - Appellant,
v.
ENTERPRISE SERVICES LLC,
Defendant - Appellee,
and
HEWLETT PACKARD; HEWLETT-PACKARD COMPANY; HEWLETT- PACKARD ENTERPRISE COMPANY; HP INC.; DXC TECHNOLOGY COMPANY; DXC TECHNOLOGY SERVICES LLC; NETIQ CORPORATION, trading as Micro Focus,
Defendants.
------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:18-cv-01454-SAG)
Argued: March 9, 2023 Decided: August 16, 2023 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 2 of 25
Before KING and RICHARDSON, Circuit Judges, and Joseph DAWSON III, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge King and Judge Dawson joined.
ARGUED: Levi S. Zaslow, HIJAZI, ZASLOW & CARROLL, P.A., Bowie, Maryland, for Appellant. James P. Driscoll-MacEachron, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix, Arizona, for Amicus Curiae. Heather Folsom Crow, KULLMAN LAW FIRM, Tallahassee, Florida, for Appellee. ON BRIEF: Allison A. Fish, KULLMAN LAW FIRM, New Orleans, Louisiana, for Appellee. Gwendolyn Young Reams, Acting General Counsel, Jennifer S. Goldstein, Associate General Counsel, Anne Noel Occhialino, Acting Assistant General Counsel, Appellate Litigation Services, Office of General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.
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RICHARDSON, Circuit Judge:
While working an IT position at Enterprise Services LLC, Jeffrey Israelitt says he
was discriminated against because he has disability—an arthritic big toe. It’s true that his
brief stint at the company was mired with issues. The company says the issues arose
because Israelitt didn’t work well with others, and actually, didn’t work much at all.
Israelitt says the issues arose because of his alleged disability. After he was fired, he
brought claims under the Americans with Disabilities Act asserting that Enterprise Services
discriminated against him because of his toe and retaliated against him for seeking toe-
related accommodations.
Those claims failed at various stages before the district court. At the summary-
judgment stage, the district court held that Israelitt does not have a “disability,” and so it
rejected every claim except retaliation. For the retaliation claim, the district court held that
Enterprise Services’s only potentially retaliatory act was firing Israelitt and allowed him to
take that claim to trial. But Enterprise Services moved to strike Israelitt’s jury-trial
demand. And, after reasoning that the Seventh Amendment does not guarantee a jury trial
for ADA-retaliation plaintiffs, the district court granted the motion. Following the bench
trial, the district court entered judgment for Enterprise Services on the remaining claim
because Israelitt failed to prove he was fired because he asked for disability
accommodations.
Israelitt primarily raises three issues on appeal. First, he says that the district court
misinterpreted the ADA when holding he is not “disabled” by relying on an outdated EEOC
regulation. But Israelitt is not “disabled” under any reasonable interpretation of the ADA.
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Second, he says that the district court misstated the level of harm required for a retaliatory
adverse action. Not so. Burlington Northern—which the district court applied—makes
clear that a retaliation plaintiff must suffer “significant” harm, which comes from a
“materially adverse” action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). Third, he relies on a convoluted theory of statutory interpretation to argue that
ADA-retaliation plaintiffs are guaranteed a jury trial by the Seventh Amendment. To the
contrary, a straightforward reading of 42 U.S.C. § 1981a(a)(2) says otherwise. So we
affirm the district court.
I. Background
Enterprise Services 1 hired Israelitt as a Senior Information Systems Security
Architect, or in plain English, a high-level IT worker focused on cybersecurity. He had
two main tasks: (1) conduct risk assessments for a product Enterprise Services was
pitching to the Department of Homeland Security and (2) prepare a technology roadmap
reviewing products in Enterprise Services’s market space. But things did not go well
during Israelitt’s seven-month stint at the company.
The first major issue involved a customer-focused conference hosted by the
company. The conference was a platform for Enterprise Services to showcase its products
to customers. Customers attended for free. Employees, on the other hand, only attended
if needed, in which case they were given passes or allocated funding to pay the registration
1 Enterprise Services LLC was spun off from Hewlett Packard during litigation. Because the corporate restructuring is complicated and unimportant for purposes of this appeal, we refer to the defendant as Enterprise Services. 4 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 5 of 25
fees. Israelitt’s team—the Cybersecurity Solutions Group—requested that several
members, including Israelitt, attend. While that was in the works, an employee working
on the event sent Israelitt and a few co-workers a customer code, allowing them to register
for free.
After he was registered, Israelitt decided he wanted to stay at the event venue—a
downtown D.C. hotel—rather than commute from his home in Glen Burnie, Maryland. He
thought commuting risked aggravating his toe condition. So he tried to reserve a room, but
the hotel was fully booked. He then contacted event staff and obtained a hotel room
reserved for handicapped patrons. Around the same time—and possibly because the
communications stirred a closer review of his registration—event staff flagged that Israelitt
had improperly registered using a code reserved for customers.
This created issues for the employees who used the customer code, as they would
“likely [ ] be turned down” from attending the event. J.A. 782. In the fallout, there was a
scramble to determine whether the employees could still attend. During that time, Israelitt
became adamant about going and began pestering his supervisor, George Romas. There
was confusion about how the situation would resolve, and even when it appeared that the
co-workers were cleared for attendance, questions remained about Israelitt. Israelitt was
not happy, and he escalated things. He leveled accusations that his “medical/disability
info” was the reason he could not attend. J.A. 780. But the Enterprise Services employee
working on the event told a different story: Israelitt had feigned a disability for preferential
treatment from the hotel. See J.A. 779 (claiming that Israelitt himself said he “really isn’t
handicapped but has a sore toe that he feels he can claim as a handicap”). Eventually,
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Romas stepped in. Although the exact resolution reached is unclear, by the end of a forty-
five-minute phone call, Israelitt agreed to not attend the conference and “keep his mouth
shut.” J.A. 778.
Israelitt’s issues didn’t end with the conference. He also had more mundane,
interpersonal issues. He often hijacked a daily team call to air his grievances. He would
then follow up on those grievances in lengthy emails to Romas. What’s worse, he wasn’t
productive. Romas did his best to account for these shortcomings. He removed Israelitt
from the daily calls, which Israelitt had “[n]o problem with.” And he transitioned Israelitt
to focusing on the technology roadmap, a longer-term project that he could work on under
the tutelage of a more senior co-worker.
Things got a bit better, and Israelitt received a decent performance review. Still,
interpersonal problems remained. As the review itself noted: Israelitt “has had a challenge
adjusting” and “can be aggressive” so he “will be mentored and counseled on more
diplomatic ways to communicate.” J.A. 745. And his productivity didn’t see a massive
turnaround either. When Israelitt presented his progress on the technology roadmap a
month later, he didn’t have much to show.
While Israelitt kept working on the roadmap, a second major issue occurred. This
one involved a company trip to Florida. The trip was intended to be a team-building trip
for the Cybersecurity Solutions Group and was paid for by billing to the Department of
Homeland Security account. During the planning stages, Israelitt became concerned over
the amount of walking the trip involved. So—without indicating why in the request—he
asked to be listed as an additional driver on the rental vehicle. Soon after, Israelitt was
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effectively removed from the Department of Homeland Security project (when he was told
to no longer bill to that client). Then, he was told that he would no longer go to Florida.
A month later, Romas sent Israelitt a formal performance warning. It gave Israelitt
thirty days to “demonstrate immediate and sustained improvement by successfully
completing” the technology roadmap. J.A. 623. At the end of the thirty-day period,
Israelitt had made no meaningful progress and was fired.
He then sued under the ADA, demanding a jury trial to resolve his claims of
discrimination, wrongful discharge, denial of reasonable accommodations, hostile work
environment, and retaliation. His complaint describes his disability as “musculoskeletal
issues” generally. J.A. 15. Yet the only impairment really at issue is his toe condition. To
be precise, Israelitt has hallux rigiditis, which causes “degenerative changes at the
metatarsophalangeal joint” and “calcaneal bone spurs” in his right big toe. J.A. 517.
Nearly two decades before his employment at Enterprise Services, he twice had surgery to
remove bone spurs from the toe. The condition can be painful, and Israelitt used shoe
inserts and had a State of Maryland disability parking pass. But aside from the parking
pass 2 and shoe inserts, the evidence that Israelitt was impaired by his toe condition was
remarkably limited. He offered no evidence of medical care for the condition for over a
2 Israelitt’s own doctor said that “by strict interpretation of criteria, [Israelitt] does not qualify” for the parking pass. J.A. 831. In any event, we have no reason to think the meaning of disability under the ADA and Maryland law governing the issuance of disability parking passes are coextensive, so neither the parking pass nor the doctor’s comment are determinative for purposes of our analysis. 7 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 8 of 25
decade. And he did not use any assistive device to walk. To the contrary, he walked
unassisted for exercise several times a week, up to 30 to 45 minutes each time.
Following discovery, Enterprise Services moved for summary judgment. The
district court determined that Israelitt did not have a “disability” under the ADA, so it
granted summary judgment on the discrimination, wrongful discharge, failure to
accommodate, and hostile work environment claims. This left only the retaliation claim.
For that claim, Israelitt alleged four retaliatory, adverse actions: (1) denial of the
opportunity to attend the conference; (2) removal from the daily team calls; (3) denial of
the opportunity to attend the team-building trip to Florida; and (4) termination. The district
court held the non-termination actions were not sufficiently harmful. So those were out.
But the district court allowed the claim to survive on the termination adverse action, even
though she questioned causation.
With only the retaliation claim remaining, Enterprise Services asked to strike the
jury-trial demand. Reasoning that an ADA-retaliation plaintiff has no right to a jury trial,
the district court granted that request. After the bench trial, the district court found there
was no evidence—aside from the temporal proximity—that the termination was retaliatory.
So the district court entered judgment for Enterprise Services on the retaliation claim.
Israelitt appealed, and we have jurisdiction.
II. Discussion
The ADA prohibits employers from discriminating “on the basis of disability.” 42
U.S.C. § 12112(a). Israelitt brought claims of discrimination, wrongful discharge, failure
to accommodate, hostile work environment, and retaliation under the ADA. All of them,
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except the retaliation claim, require Israelitt to show that he has a “disability.” See Jacobs
v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (discrimination);
Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001) (wrongful
discharge); Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (failure to
accommodate); Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (hostile work
environment). Since Israelitt does not have a disability, the court was right to grant
summary judgment on every claim except retaliation.
The district court also properly granted judgment on the retaliation claim, but it
takes more work to explain why. First, the district court applied the correct level of harm
for a retaliatory adverse action to dismiss the retaliation claims based on the conference,
the team calls, and the team-building trip. That left only the termination. And, having
correctly held that an ADA-retaliation plaintiff has no right to a jury trial, the district court
properly found after a bench trial that Israelitt failed to prove that Enterprise Services fired
him because he engaged in protected activity.
A. Israelitt does not have a “disability” under the ADA.
The ADA defines “disability” as “a physical or mental impairment that substantially
limits one or more major life activities.” 3 42 U.S.C. § 12102(1)(A) (emphasis added).
And, relevant here, it defines “major life activities” to “include . . . walking.” 4
3 It includes other definitions as well, see § 12102(1)(A); see also Miller v. Md. Dep’t of Nat. Res., 813 F. App’x 869, 874 (4th Cir. 2020), but they aren’t at issue here. 4 The statute’s list of “major life activities” is long. See § 12102(2). But the parties—and the district court—focused on whether Israelitt’s toe condition substantially limited his ability to walk, so we similarly limit our analysis. 9 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 10 of 25
§ 12102(2)(A). The district court held that Israelitt did not have a “disability” under the
ADA. Israelitt objects. He argues that the district court—in deciding his toe condition
wasn’t a disability—applied the wrong standard by citing an outdated EEOC regulation
requiring a “significant restriction” on walking. You might wonder whether there is a
meaningful distinction between a “significant restriction” and the statute’s “substantial
limitation.” But even to the extent that there is a meaningful distinction, it makes no
difference here. We review de novo and under any reasonable interpretation of “disability”
under the ADA, Israelitt doesn’t have one.
We begin, of course, with the text. A disability requires (1) “a physical or mental
impairment” (2) “that substantially limits” (3) “one or more major life activities.”
§ 12102(1)(A). Beginning in 1999, the Supreme Court—in accord with EEOC
regulations—narrowly interpreted this statutory text in several ways. See Sutton v. United
Air Lines, Inc., 527 U.S. 471, 491 (1999). One way was by reading “substantially limited”
to require that in “performing . . . tasks, an individual must have an impairment that
prevents or severely restricts the individual from doing [major life] activities.” Toyota
Motor Mfg., Inc. v. Williams, 534 U.S. 184, 198 (2002) (emphasis added). This reading
was required, the Supreme Court explained, because the statutory terms “need to be
interpreted strictly” given the ADA’s legislative findings and purposes. Id. at 197. This
interpretation also tracked an existing EEOC regulation that explained that “substantially
limits” meant “significantly restrict[s]” a major life activity. 29 C.F.R. § 1630.2(j)(l)(ii)
(2000).
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Congress, however, disagreed. Upset by these Supreme Court cases, similar lower
court decisions, and the EEOC’s regulations, Congress responded. It amended the ADA
in 2008. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
Among other changes that are not at issue here, Congress addressed what it means to have
an impairment that “substantially limits” an activity. But it did not change the actual
statutory language defining “disability” (that is, it kept “substantially limits”). Instead,
Congress added a background rule of construction: “substantially limits” should be
interpreted in its full breadth. See § 12102(4)(A) (“The definition of disability in this
chapter shall be construed in favor of broad coverage of individuals under this chapter, to
the maximum extent permitted by the terms of this chapter.”), (B) (“The term ‘substantially
limits’ shall be interpreted consistently with the findings and purposes of the ADA
Amendments Act of 2008.”).
You may think this is an odd way to amend a statute. After all, Congress could have
changed the operative language defining the term. But just as Congress may define terms,
so too may it provide background rules of construction. See, e.g., The Dictionary Act, 1
U.S.C. §§ 1–8 (instructing courts to apply certain rules of grammatical construction to all
federal statutes “unless context indicates otherwise”). And Congress exercised that
authority here. It directed, contrary to the Supreme Court’s “strict” construction, that we
should construe the term “disability” in favor of broad coverage. Yet Congress made
coverage broad, not universal. It placed a floor: interpret “disability” only to the “extent
permitted by the terms.” § 12102(4)(A).
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How broad do the terms permit us to go? We haven’t decided. 5 But we can find
instruction from the Supreme Court. Before adopting the “strict”-construction principle,
the Supreme Court reminded us that when interpreting “disability” we are “guided first and
foremost by the words of the disability definition itself.” Toyota Motor Mfg., 534 U.S. at
196. And it explained that the term “substantially,” as used in “substantially limits,”
suggests the impairment must be “considerable” or “to a large degree.” Id. at 196–97
(citing Webster’s Third New International Dictionary 2280 (1976) & 17 Oxford English
Dictionary 66–67 (2d ed. 1989)). This suggestion, the Court explained, “clearly precludes
impairments that interfere in only a minor way.” Id. at 197.
This part of the Court’s analysis stands. How could it not? Yes, Congress did away
with the Toyota Court’s insistence that a disability “severely restrict” the plaintiff. See
§ 12101 (Findings and Purposes of Pub. L. 110–325); see also Summers, 740 F.3d at 329.
But it did not change the statutory requirement that a disability “substantially limit” the
plaintiff. Indeed, it reaffirmed our duty to apply that term as written. See § 12102(4)(A).
And no interpreter looks at the word “substantial” and reasonably concludes it means
5 While our Court has applied the ADA’s definition of “disability” with its new congressional rule of construction, we have avoided drawing any precise lines. See Summers v. Altarum Inst., Corp., 740 F.3d 325, 330–32 (4th Cir. 2014); Jacobs, 780 F.3d at 572–74. We do the same here. Given that Israelitt’s toe condition is not a “disability” no matter where the line is, we avoid attempting to draw it with precision. See Miller, 813 F. App’x at 875 (finding on appeal that plaintiff was not disabled even where district court looked for an impairment that “significantly restricted”). 12 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 13 of 25
“minor.” So Congress’s amendment did not abrogate Toyota’s observation that a “minor”
limitation is definitionally not a “substantial” one. 6
And that observation disposes of this case. Because one thing is for sure: Israelitt’s
impairment is minor, not substantial. He has an arthritic toe joint. His toe might be painful.
And, on different facts, an arthritic toe joint might substantially limit someone’s mobility.
But it doesn’t substantially limit Israelitt’s. Cf. Twitter, Inc. v. Taamneh, 143 S. Ct. 1206,
1231 (2023) (Jackson, J., concurring) (“Other cases presenting different allegations and
different records may lead to different conclusions.”). There is no evidence that Israelitt’s
toe condition impacts his walking in any non-minor way. In fact, the record reveals quite
the opposite: Israelitt often walked at length—unassisted—for both business and pleasure.
So Israelitt does not have a “disability” within the meaning of the ADA. Thus, despite
citing an outdated regulation requiring a “significant restriction,” the district court was right
to reject Israelitt’s discrimination, wrongful discharge, failure to accommodate, and hostile
work environment claims at summary judgment.
B. Israelitt’s only “materially adverse” consequence was his termination.
This leaves only Israelitt’s retaliation claim. Employers violate the ADA by
retaliating against an employee for engaging in an ADA protected activity. See 42 U.S.C.
6 Much of the EEOC’s argument rests on its regulation interpreting the amended ADA. That regulation says that “substantially limits” does not mean the “disability” must “prevent, or significantly or severely restrict, the individual from performing a major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii). It thus requires that there be a meaningful difference between “substantially limits” and “significantly restricts.” Whether the EEOC’s regulation is reasonable—and thus eligible for deference—is irrelevant here. We decide this case on a premise that the EEOC does not—and could not reasonably—contest: substantial does not mean minor. 13 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 14 of 25
§ 12203; see also Jacobs, 780 F.3d at 577. Israelitt claims Enterprise Services retaliated
against him in several ways for requesting disability accommodations. 7 The district court
first held that his requests plausibly constitute protected activity. It then held that most of
Enterprise Services’s allegedly retaliatory actions—specifically, removing Israelitt from
the daily calls and excluding him from the D.C. conference and Florida trip—were not
adverse enough to qualify as unlawful retaliation since they did not cause significant harm.
Because retaliatory adverse actions must cause significant harm to be actionable,
Burlington N., 548 U.S. at 68, the district court properly rejected those adverse actions. 8
The EEOC disagrees. It argues the district court applied the wrong standard.
Retaliation claims require showing that a plaintiff suffered a “materially adverse” action.
Id. The district court did not use the word “material” in its opinion. Nor did it expressly
discuss whether Enterprise Services’s actions would have “dissuaded a reasonable worker”
from taking a protected action—the Supreme Court’s standard for a materially adverse
action. Id. Rather, its analysis “center[ed]” on whether Enterprise Services’s conduct
created “significant detrimental effects.” J.A. 45. And that language, “significant
detrimental effect,” has more often been used to describe what is required to establish an
adverse action in substantive discrimination claims rather than retaliatory discrimination
7 He cites two alleged accommodation requests: (1) for a hotel room at the D.C. conference and (2) to be listed as a driver for the Florida trip. 8 Burlington Northern dealt with Title VII, rather than ADA, retaliation claims. But “we treat the Title VII context as being ‘analogous’ to the ADA for this purpose.” Laird v. Fairfax Cnty., 978 F.3d 887, 893 n.5 (4th Cir. 2020) (quoting Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015)). 14 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 15 of 25
claims. See, e.g., Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007). Since
what counts as an adverse action “differs slightly” between those two types of claims, the
EEOC argues that the district court erred. See Laird, 978 F.3d at 893.
But the district court was correct that Israelitt’s discrimination claims failed absent
a showing that Enterprise Services’s actions caused him some significant detriment. See
Laird, 978 F.3d at 893. We have been clear that, whatever the differences in the adverse
action standards for substantive and retaliation claims, “both claims share a common
element: an adverse action, meaning some action that results in some significant detriment
to the employee.” Id. (cleaned up). So if Israelitt could not show that any of the challenged
actions resulted in significant harm, he could not make out either type of claim and the
district court was justified in merging the analysis. See J.A. 45 (“As outlined above in [the
substantive discrimination section] Plaintiff has failed to demonstrate that [the challenged
actions] are adverse actions.”).
And Laird’s holding that both claims require showing a significant harm was not,
as the EEOC implies, drawn from thin air. It is firmly rooted in Burlington Northern,
which makes plain that—while the standard for retaliatory and substantive adverse actions
differ—retaliatory adverse actions must cause significant harm. In that case, the Court
answered two questions about retaliation claims: (1) Is “actionable retaliation [confined]
to activity that affects the terms and conditions of employment?” and (2) “[H]ow harmful
must the adverse actions be[ ]?” Burlington N., 548 U.S. at 57. On the first question, the
answer is no; this answer distinguishes retaliation claims from substantive ones. On the
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second, more relevant question, the answer is it must cause a “significant” harm to the
employee; this answer connects the two claims. See id. at 68; Laird, 978 F.3d at 893.
True, the Supreme Court placed the significant-harm requirement in the broader
package of the “materially adverse” standard. It required that the retaliatory action be
materially adverse. Burlington N., 548 U.S. at 57. And it then explained that “materially
adverse” means adverse actions that “could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Id.
But how harmful is an action that would “dissuade a reasonable worker”? “[P]etty
slights, minor annoyances, and simple lack of good manners” won’t do it. Id. at 68.
Instead—according to the Supreme Court—the action must cause objectively “significant”
harm. See id. at 68 ( “We speak of material adversity . . . to separate significant from trivial
harms.”). So, whatever you call the “materiality” standard, it requires significant harm. 9
9 The EEOC responds by citing several Fourth Circuit cases adopting the “materially adverse” standard. See EEOC Br. at 13–15 (citing Lettieri v. Equant Inc., 478 F.3d 640, 650 n.2 (4th Cir. 2007); Darveau v. Detecon, Inc., 515 F.3d 334, 342–43 (4th Cir. 2008); Perkins v. Int’l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019); Scurlock-Ferguson v. City of Durham, 154 F. App’x 390 (4th Cir. 2015)). Fair enough, those cases do apply the “materially adverse” standard. But, crucially, those cases don’t say that the “materially adverse” standard does not require “significant” harm. And they couldn’t say that under the plain meaning of Burlington Northern. The EEOC tried again in a Rule 28(j) letter citing Laurent-Workman v. Wormuth, 54 F.4th 201, 212–18 (4th Cir. 2022). It argues Laurent-Workman “illustrates that, after Burlington Northern, the adverse action standards for retaliation claims and discrimination claims are different.” Again, true, but Laurent-Workman—like Lettieri, Darveau, and Schurlock-Ferguson—does not say the new “materially adverse” standard does not require “significant” harm. To the contrary, Laurent-Workman acknowledges the significance requirement. See 54 F.4th at 213 (noting that the “materially adverse” standard “separates minor harms from those that threaten to chill employees from opposing unlawful discrimination”); see also id. at 217 (“The severity and frequency of hostility are important
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The district court recognized all this. It did not require the harm to affect a condition
of employment. J.A. 45 (“What qualifies as an adverse action differs slightly in the
retaliation and unlawful discrimination contexts . . . in terms of the scope of actions
covered (i.e. whether the acts and harm occurred in the workplace or not).” (emphasis
added)) But—consistent with Burlington Northern and after citing Laird—the district
court did require “significant” harm. J.A. 45. It may not have specifically used the term
“materially adverse.” But by looking for “significant” harm that could have existed beyond
the scope of the workplace, the district court stayed true to the “materially adverse”
standard. Because Israelitt could not show significant harm resulting from the non-
termination actions, those bases for the retaliation claim failed. 10
C. Israelitt did not have a jury-trial right for his ADA-retaliation claim.
All that remains is the retaliation claim based on Israelitt’s termination. Israelitt
wanted to present this claim to a jury. The right to a jury trial can stem from a statute itself.
But the ADA itself provides no right to a jury trial. That, however, doesn’t end the question.
factors to consider when determining whether the circumstances would dissuade a reasonable employee from opposing discrimination . . . .”). 10 While the EEOC only challenges the standard applied, Israelitt also argues that under the proper standard, his alleged adverse actions were sufficiently adverse. See Appellant’s Br. at 52–53. Again, those adverse actions include (1) denial of the opportunity to attend the D.C. conference; (2) removal from the daily calls; and (3) denial of the opportunity to go on the trip to Florida. Would these actions dissuade a reasonable worker from making a charge of discrimination? No. Israelitt himself was content with being removed from the daily call when Romas proposed it. And while he may have genuinely been upset about missing the D.C. conference and Florida trip, that’s the wrong question. We review the harm from an objective standard. Burlington N., 548 U.S. at 68–69. Viewed objectively, missing the work conference and trip did not cause Israelitt “significant” harm. 17 USCA4 Appeal: 22-1382 Doc: 56 Filed: 08/16/2023 Pg: 18 of 25
When the statute provides no such right, the Seventh Amendment might: “In Suits at
common law, where the value in controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved.” U.S. Const. amend. VII. The Seventh Amendment’s guarantee
has been extended “to all suits, whether at common law or arising under federal legislation,
where legal rights are involved.” Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 828 (4th
Cir. 1994). To determine whether the Seventh Amendment provides a jury trial, we
conduct a two-part inquiry that first compares “the nature of the issues involved and the
statutory action” “to 18th–century actions prior to the merger of the courts of law and
equity,” and then, “more importantly,” considers whether “the remedy available” is “legal
or equitable in nature.” Id. at 829 (citing Chauffeurs, Local No. 391 v. Terry, 494 U.S.
558, 565 (1990)).
The Fourth Circuit has held that similar statutory actions are of the “nature” that
“could be brought in either courts of law or courts of equity.” See id. (reviewing disability-
discrimination claims under the Rehabilitation Act for a jury-trial right). So the first
inquiry is inconclusive. See id.; Terry, 494 U.S. at 570. That means the right to a jury trial
turns on the answer to the second, “more important[ ]” question: whether legal remedies
are available. See Pandazides, 13 F.3d at 829; Terry, 494 U.S. at 570, 573–74. Every
circuit court to answer that question, including our circuit in unpublished opinions, has held
that they are not. See Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269–70 (9th Cir.
2009); Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 966 (7th Cir. 2004); Tucker v.
Shulkin, No. 20-1317(L), 2020 WL 4664805, at *1 (3d. Cir. July 24, 2020); Rhoads v.
F.D.I.C., 94 F. App’x 187, 188 (4th Cir. 2004); Bowles v. Carolina Cargo, Inc., 100 F.
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App’x 889, 890 (4th Cir. 2004). Still, Israelitt and the EEOC argue that legal damages are
available. To understand their argument, we must wade through the tangle of statutes that
decides what remedies are available to ADA-retaliation plaintiffs.
We start with § 12203(c). It gives the ADA’s remedies for retaliatory conduct. But
it doesn’t actually list remedies. Instead, for retaliation in the employment context, it refers
readers to remedies “available under” 42 U.S.C. § 12117. See § 12203(c). Section 12117
is the remedies provision for 42 U.S.C. § 12112, which prohibits substantive ADA
discrimination in employment. But while § 12117 mentions remedies, it doesn’t actually
provide them; it instead points to the remedies “set forth” in 42 U.S.C. § 2000e-5. See
§ 12117(a). Section 2000e-5 is the remedies provision for Title VII discrimination claims.
Section 2000e-5 does, at last, list remedies, but only equitable ones. See § 2000e-5(g)(1).
So, at the end of this statutory chain, ADA-retaliation plaintiffs are entitled to equitable
remedies.
That’s a lot to swallow. Walk through it again, step by step, with the statutory
language:
1. Section 12203(a)—the ADA’s antiretaliation section—provides: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” § 12203(a). But § 12203 does not give remedies, instead: “The remedies and procedures available under section 12117 . . . of this title shall be available . . . .” § 12203(c).
2. Section 12117 doesn’t give us remedies either; it’s a passthrough, which provides: “The powers, remedies, and procedures set forth in section[ ] . . . 2000e-5 . . . of this title shall be the powers, remedies, and procedures this subchapter provides . . . to any person alleging discrimination on the
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basis of disability in violation of any provision of this chapter . . . concerning employment.” § 12117(a).
3. Section 2000e-5 finally gives real answers: “[T]he court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . , or any other equitable relief as the court deems appropriate.” § 2000e-5(g)(1).
Again, the statutory chain bottoms out in the equitable remedies listed in § 2000e-5.
But that isn’t the end of our story. We must also consider 42 U.S.C. § 1981a.
Section 1981a expands remedies for certain “Civil rights” and “Disability” plaintiffs,
including some Title VII and ADA plaintiffs. Those plaintiffs—the statute says—“may
recover compensatory and punitive damages.” § 1981a(a)(1), (2). But legal damages are
not available to ADA-retaliation plaintiffs under § 1981a either. Section 1981a(a)(2)—in
listing the types of “Disability” plaintiffs entitled to legal damages—does not list ADA-
retaliation actions. See § 1981a(a)(2). Instead, the statute says that an ADA plaintiff “may
recover compensatory and punitive damages” for certain substantive discrimination and
failure to accommodate claims. See id. (“In an action brought by a complaining party
under . . . [§ 12117(a)] . . . against a respondent who engaged in unlawful intentional
discrimination . . . , or who violated the requirements of [§ 12112(b)(5)] concerning the
provision of a reasonable accommodation, . . . the complaining party may recover
compensatory and punitive damages . . . .”); see also Kolstad v. Am. Dental Ass’n, 527
U.S. 526, 534 (1999) (In § 1981a “Congress provided for additional remedies . . . for
certain classes of Title VII and ADA violations.” (emphasis added)).
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Yet Israelitt and the EEOC try a different argument. They rely on a strained theory
of statutory interpretation to say that—even though it does not list retaliation claims—
§ 1981a(a)(2) still provides legal damages for ADA-retaliation plaintiffs. How so? Recall
that § 12203 refers readers to remedies “available under” § 12117 and, in turn, those “set
forth” in § 2000e-5. And § 1981a allows for § 12117 plaintiffs to recover legal damages.
So, Israelitt and the EEOC argue, the right to recover legal damages meanders its way back
through the statutory chain to ADA-retaliation plaintiffs.
What about the fact that § 1981a(a)(2) does not list ADA-retaliation plaintiffs—
those asserting claims under § 12203—as among the ADA plaintiffs who may receive legal
damages? Israelitt and the EEOC say that’s no problem. In their view, it is “of no
consequence when § 1981[a] is read in conjunction with the relevant provisions of the
ADA.” Edwards v. Brookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225, 236 (E.D.N.Y.
2005). That’s because, they argue, “the remedies available for retaliation under the ADA
are commensurate with those available under [§ 12117],” so “it was unnecessary for
Congress to separately mention retaliation in § 1981[a].” Id.; see also Rumler v. Dep’t of
Corr., 546 F. Supp. 2d 1334, 1343 (M.D. Fla. 2008) (“When Congress expanded the relief
available under § 12117 to include legal damages, it also expanded the relief available
under § 12203 by reference.”). In other words, it “would have been redundant” for
Congress to list § 12203 in § 1981a(a)(2) because § 12203 plaintiffs “could avail
themselves of the same remedies as plaintiffs claiming discrimination under [§ 12117].”
Rumler, 546 F. Supp. 2d at 1343.
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We reject Israelitt and the EEOC’s argument. Their logic gets it backwards. ADA-
retaliation plaintiffs get the remedies “available under” § 12117. Yet compensatory and
punitive damages are not a remedy “under” § 12117. Substantive-discrimination plaintiffs
suing under § 12117 can get legal damages. But that is only because § 1981a(a)(2) makes
compensatory and punitive damages available to them. Conversely, since § 1981a(a)(2)
does not list ADA-retaliation plaintiffs, they cannot get legal damages under that section.
True, § 2000e-5 also says that the equitable remedies provided in subsection (g)(1)
are available “[i]n addition to any relief authorized by section 1981a.” § 2000e-5(e)(3)(B).
But, read in its proper context, subsection (e)(3)(B) does not “set forth” remedies at all.
And, even if subsection (e)(3)(B) did “set forth” remedies, that would require we ask: What
“relief [is] authorized” by § 1981a? The answer to that question is § 1981a authorizes
compensatory and punitive damages for “certain classes” of disability plaintiffs. See
Kolstad, 527 U.S. at 534. Namely, ADA plaintiffs suing for either substantive
discrimination or a failure to accommodate. § 1981a(a)(2). To look past the statutory
silence and inject legal damages into § 12203 requires a statutory sleight of hand that
“contravenes the basic tenets of statutory construction.” Alvarado, 588 F.3d at 1268.
There’s simply no way around it: § 1981a(a)(2) provides legal damages only for specific
ADA claims. And “ADA retaliation is not on the list.” Id. at 1270.
Our holding that ADA-retaliation plaintiffs cannot recover legal damages places us
in good company. The circuit courts (where they’ve spoken) have unanimously rejected
Israelitt and the EEOC’s reading. See Alvarado, 588 F.3d at 1270; Kramer, 355 F.3d at
965 (noting that “a meticulous tracing of the language of this tangle of interrelated statutes
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reveals no basis for plaintiff’s claim of compensatory and punitive damages in his ADA
retaliation claim” (quoting Brown v. City of Lee’s Summit, No. 98-0438-CV-W-2, 1999
WL 827768, at *3 (W.D. Mo. June 1, 1999))). Likewise, we’ve reached the same reading
in unpublished opinions. See Rhoads, 94 F. App’x at 188; Bowles, 100 F. App’x at 890.
We now adopt our reading in Rhoads and Bowles in a published opinion. ADA-retaliation
plaintiffs are not entitled to legal damages. That means, under the inquiry from Terry,
ADA-retaliation plaintiffs are not guaranteed a jury trial by the Seventh Amendment. Cf.
494 U.S. at 573–74. And the ADA itself doesn’t provide that right either. Accordingly,
Israelitt had no right to present his retaliation claim to a jury.
D. Israelitt did not prove causation at trial.
Israelitt makes one last-ditch effort: The district court erred in holding that he did
not prove causation at trial. His challenge boils down to an argument that the district court
improperly considered an exhibit that was not admitted into evidence during trial. This
challenge fails.
Israelitt says the district court, in its final order following the bench trial, improperly
relied on a performance review that Romas prepared. According to him, the district court
used the performance review, which was included on Enterprise Services’s exhibit list but
never admitted into evidence, “to bolster its conclusion that Mr. Israelitt was a poor
performer.” Appellant’s Br. at 53. Further, he says that performance review could not
have been admitted into evidence because “it could not be authenticated or shepherded into
evidence.” Id. at 54.
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In the final order, the district court determined that even if Israelitt engaged in
protected activity, there was no causation. To the district court, the facts elicited at trial
“unquestionably demonstrate[d] that his requests for accommodation had nothing to do
with” his exclusion from the D.C. conference, the Florida trip, or the daily calls. Instead,
the evidence “unequivocally” showed that Israelitt was “terminated because he was an
incompatible teammate” who “failed to make any meaningful progress on tasks that were
assigned to him.” J.A. 77. Those factual findings receive clear-error review. See Fed.
Rule Civ. P. 52(a). While it’s true the district court cited an exhibit that was not admitted
at trial, that was one of many pieces of evidence the district court relied on in reaching its
determination. Even if the performance review was inadmissible evidence the court should
not have considered, we cannot say that the district court clearly erred in holding that
Israelitt could not establish causation.
* * *
Israelitt’s claims fail. First, while the district court did cite an outdated EEOC
regulation when determining he is not disabled within the meaning of the ADA, he is not
disabled under any reasonable reading of the ADA. So that disposes of every claim except
retaliation. Second, Burlington Northern makes clear that only “significant” harm to an
employee constitutes retaliatory adverse action. And only his termination met that
threshold. Third, a straightforward reading of § 1981a(a)(2) shows that an ADA-retaliation
plaintiff is not entitled to legal damages and therefore not guaranteed a jury trial by the
Seventh Amendment. To close it out, the district court got it right at the bench trial.
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Israelitt’s termination was not in retaliation for any protected activity. Accordingly, the
district court is
AFFIRMED.