                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-1885


WINFRED HOWARD,

                  Plaintiff - Appellant,

           v.

INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System,

                  Defendant - Appellee.




                              No. 07-2035


WINFRED HOWARD,

                  Plaintiff - Appellant,

           v.

INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System,

                  Defendant - Appellee.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge; Gerald Bruce Lee, District Judge.    (1:06-cv-
00976-CMH; 1:07-cv-00647-GBL)


Argued:   October 28, 2008                  Decided:   December 5, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Nils George Peterson, Jr., Arlington, Virginia, for Appellant.
William Boyle Porter, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.
                        _______________

Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       On August 24, 2006, Winfred Howard sued his employer, Inova

Health   Care    Services,   asserting       interference    and    retaliation

claims   under    the   Family     and   Medical   Leave    Act    (“FMLA”),   29

U.S.C. § 2601 et seq.        After Inova moved for summary judgment,

Howard moved to dismiss his complaint without prejudice or, in

the alternative, to amend his petition to add a claim under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq.     The    district   court    denied   Howard’s   motion      and   granted

summary judgment in favor of Inova, finding that Inova had not

violated the FMLA in disciplining Howard, transferring him to an

alternate position, or terminating his employment.                    The court

also found that Howard had failed to make a prima facie showing

of retaliation.         On July 3, 2007, Howard filed a second suit

against Inova, asserting an ADA claim based on the same events

that formed the basis for his FMLA claims.                 The district court

in that case granted Inova’s 12(b)(6) motion to dismiss Howard’s

complaint on the basis of res judicata.             Howard now appeals the

judgments of the district courts.            For the reasons that follow,

we affirm.




                                         3
                                               I.

       Howard first began working for Inova as an operating room

(“OR”) technician in 1993.                  In the fall of 1996, Howard informed

Inova    that      he    had    been       diagnosed        with    posttraumatic         stress

disorder      (“PTSD”),        triggered       by     exposure      to    blood     or    bodily

fluids or the smell of burning flesh.                          He asked to be removed

from    his    position        for    fear    of    endangering       patients.           Howard

began using full-time and intermittent leave under the FMLA to

address his PTSD and eventually was transferred to a supply and

resource coordinator position that did not involve OR work.

       Howard      left    Inova      in     1997     and    was    unemployed         for    four

years.        In   2000,       he    sued    Inova,     alleging      an    ADA     violation.

While the lawsuit was pending, Inova rehired Howard in 2001 as a

patient       service     coordinator,          and    the     lawsuit      was     dismissed.

Upon    his     reemployment,          Howard       was     given     access      to     Inova’s

employee booklet and FMLA policies.

       On February 14, 2002, Howard was involved in a car accident

and injured his back.                He requested and was approved for 28 days

of    FMLA     leave.          He    provided       Inova     with       physicians’         notes

certifying that he was unable to attend work from February 14 to

19, 2002; February 27 to March 14, 2002; April 9 to 16, 2002;

and April 19 to 26, 2002.                   J.A. 597–602.          Howard was involved in

a    second    car      accident      on     November       26,    2002.       He   submitted
                                                4
physicians’ notes certifying that he should work reduced hours

with certain restrictions on physical activity from December 7

to 21, 2002; December 18, 2002 to January 10, 2003; and January

11, 2003 to February 22, 2003.          J.A. 606–09.   He also submitted

a physician certification in May 2003 stating that he needed to

work reduced hours for an unknown period.           J.A. 610–12.      Inova

approved a reduced work schedule for Howard, but he eventually

returned to a full-time schedule in 2003 or 2004.            See J.A. 301.

     In 2005, Howard was verbally disciplined by his supervisor,

Julie     Quick,   for   “absenteeism    and   tardiness,”    and   written

documentation of the discipline was placed in his file.                J.A.

104, 621.     Quick explained that Howard had failed to report for

work on February 2 to 7, 2005 and March 1 to 2, 2005; that he

had left work early on February 9, 23, and 25, 2005; and that he

was late on February 11, 14, and 18, 2005.          Id.   Howard asserted

that he missed these days of work due to his back problems.

J.A. 333–38.       Quick provided Howard with FMLA forms for his

doctors to certify that these absences were related to medical

issues.     If Howard could submit proper physician certification

of these absences, Quick would withdraw documentation of the

verbal warning from Howard’s file.

     On April 15, 2005, Howard called in sick.                On April 18,

2005, Quick gave Howard a written warning, noting that his April
                                    5
15,    2005     absence     was   the     ninth   unexcused     absence     in   three

months.       Again, Quick provided Howard with FMLA forms and said

she would withdraw both the verbal and written warnings if he

could provide physician certification for his absences.

       Howard        met   with   Quick    and    Tom   Williams,      an   Inova    HR

representative, on April 28, 2005.                 Howard had not yet provided

FMLA documentation to excuse his absences.                    Quick and Williams

explained the forms to Howard and informed him that his failure

to return them could be grounds for termination.                       J.A. 385–86.

On May 4, 2005, Howard submitted a “Certification of Health Care

Provider” that a physician had signed on March 29, 2005.                            See

J.A.       623–25.      Because   the     certification   did    not    provide     the

physician’s name or contact information and was evidently filled

out by two different people, Williams met with Howard and told

him that the certification was insufficient to excuse Howard’s

absences. 1          On May 6, 2005, Williams wrote Howard, explaining

that Inova had no FMLA paperwork for Howard for the last two


       1
       The physician’s signature and the written response stating
the    “medical   facts    which    support   [the   physician’s]
certification” were in one person’s handwriting. J.A. 623. The
rest of the form, which stated that Howard needed to work a
reduced schedule for an unknown duration of time, was written in
another person’s handwriting.     Howard admitted that he filled
out most of the form and asserted in his deposition that his
physician, Dr. Rodney Dade, authorized him to do so.        In a
deposition, Dr. Dade testified that he had not authorized Howard
to fill out the form. J.A. 1623–29.
                                 6
years.     Williams’s letter set a May 13, 2005 deadline for Howard

to provide physician certification for his absences.                       Howard did

not submit a complete certification from Dr. Rodney Dade until

May 31, 2005.         The certification stated that Howard had lower

back pain that required a reduced work schedule for a period of

six to eight months.         Inova approved a reduced work schedule for

Howard based on this certification on June 1, 2005.

       On June 13, 2005, Quick met with Howard and informed him

that he would be transferred from the Surgical Business office

to the Unit Management office to work in a supply distribution

tech    position.       A   letter    from     Quick   to   Howard    memorializing

their      meeting    stated    that     the     new    position     would     better

accommodate his intermittent schedule and that Howard would work

in   the    Unit     Management      office,    “reorganizing        and    labeling;

entering data for scrub users; [and] placing supplies . . . in

proper locations,” for the duration of his approved reduced work

schedule.         J.A. 116, 642, 1485.           The letter asked Howard to

start in his new position on June 15, 2005.                 Id.

       Howard testified in his deposition that during the meeting

he told Quick that he should not work near the OR because he

needed to avoid exposure to blood.                He did not report for work

in   the    new   supply    distribution       tech    position    until    June   23,

2005.      When he appeared for work, he presented a note from Dr.
                                          7
George H. Lawrence, a psychologist, stating that Howard “has

been suffering from debilitating stress and therefore unable to

work from Wednesday, June 15th.”                 J.A. 126; see also J.A. 420.

The note stated that Howard was “fit to return to duty” on June

23, 2005 and should “avoid unnecessary stress.”                         Id. at 126

      On    June     27,       2005,   Howard       filed     an        EEOC     charge   of

discrimination against Inova, alleging an ADA claim.                                On the

same day, Quick and Williams met with Howard and requested FMLA

paperwork to certify the “debilitating stress” condition that

Dr.   Lawrence     had     identified.        See    J.A.     436.        They     provided

Howard with the necessary forms and asked him to return them by

July 13, 2005, which he did not.                In the meantime he worked as a

supply distribution tech, performing duties in and around the

OR.   He testified that while he worked in this position, he had

four or five dissociative episodes related to his PTSD, only one

of which he told Quick about.                 See J.A. 432–34.                 On July 12,

2005, Roxanne Kavros, one of Howard’s old supervisors from his

previous tenure with Inova, met with Williams to express her

concern that she had seen Howard in and around the OR.                                    She

mentioned     that       she     had   supervised       him        in     1998     when   he

transferred from an OR tech position into a supply tech position




                                          8
because of his PTSD. 2           She was worried that “because of changes

in the design of the OR department he may currently be passing

by OR rooms and seeing patients or blood products.”             J.A. 1492.

       Howard met with Williams again on July 20, 2005.                During

this meeting, Williams gave Howard another week to submit FMLA

certification for the “debilitating stress” that Dr. Lawrence

had diagnosed.         Howard did not submit the paperwork.           On the

same       day,   Howard   met    with   Quick,   Williams,   and   other   HR

employees to discuss his concern that his current position was

exposing him to blood.            After the meeting, he was assigned to

another position in the Unit Management office to perform data

entry and began work in this position on July 21, 2005. 3


       2
       The record contains some discrepancies as to when Howard
first left Inova.   Howard testified that he left Inova in July
of 1997. J.A. 209.
       3
       The record contains conflicting evidence as to what duties
Howard performed in his new position. Williams’s personal notes
reflect that on August 4, 2005, Julie Quick asked Howard to
“clean out a break room of supplies,” but that Howard refused to
do so unless the request was put in writing.          J.A. 1493.
Despite   further   negotiations   between  Quick   and   Howard,
Williams’s notes state that Howard continued to refuse to
perform any duties in response to verbal requests.       Howard’s
brief states that he was “required to clean out a storage room
that had not been cleaned in years” and that this room
“contained materials that exacerbated his PTSD.”     Petitioner’s
Br. at 13–14.    In his deposition, Howard testified that Inova
“moved [him] to a warehouse position where [he] worked by
[him]self . . . to clean out a warehouse which [he] was told by
a personnel that worked in perioperative service no one had been
in from anywhere from five to six years.” J.A. 448. The tasks
                                 9
       On    August     10,     2005,      Howard     submitted         an     FMLA       form

requesting full-time leave from August 11 to 26, 2005.                                    J.A.

653.     Accompanying the form was a “Certification of Health Care

Provider” from Dr. Lawrence stating that Howard was “suffering

from seizure disorder and PTSD.”                    J.A. 128, 654.                 The form

further stated that Howard “is at risk for seizure or possible

self harm” and “needs fulltime leave.”                      Id. at 128–29, 654–55.

Williams approved Howard’s leave on August 15, 2005.

       On    August     17,     2005,      Williams       sent    Howard          a   letter

confirming that Howard would return to work on August 29, 2005,

the first business day after his approved leave would end.                                J.A.

132–33, 659-60.          The letter also asked Howard to contact the

health care providers who had completed Howard’s most recent

FMLA   paperwork.        Williams       wanted    the     physicians         to    review    a

proposed      job    description      of    the   position       that    Howard       would

assume      after    returning   to     work.       The     letter   also         asked   the

physicians      to    provide    information        about    whether         Howard    would

require a reduced work schedule; whether Howard would experience

episodes of incapacity due to his health; and whether Howard

would be able to perform the proposed job duties.                       Id.




of cleaning the “break room,” “storage room,” and “warehouse”
appear to be the same.     The record is unclear whether Howard
actually performed this task.
                               10
     On August 23, 2005, Howard sent a letter to the Department

of Labor, Wage & Hour Division to file an FMLA complaint against

Inova    for    “discriminat[ing]         and    retaliat[ing]        against    me    by

overriding       a    position     that     was    accommodating        me      for     my

disability.” 4        J.A. 676-77.

     On August 26, 2005, an Inova HR Coordinator sent Howard

another letter confirming approval for his leave from August 11

to 26, 2005.          J.A. 152–53.        The letter also stated that Howard

was “required to present a ‘fitness-for-duty’ certificate from

[his] health care provider, prior to [his] return to work.”                            Id.

at 152.         Howard testified that he understood this letter to

request a “fitness for duty certification from [his] doctor that

provided    support       that    [he   was]    ready    to    come    back    to     work

medically.”          J.A. 485.     By September 8, 2005, however, Howard

had not submitted a fitness-for-duty certification and had not

reported for work.           Id. at 484.          On that day, Williams wrote

Howard     to    remind    him     that    Williams      had    not    received       the

information requested in his August 17, 2005 letter.                          J.A. 154.

Williams       also    informed    Howard       that    because   Howard       had     not

returned to work as expected, Inova required “updated Family


     4
       The DOL ultimately concluded that Inova had violated the
FMLA when it transferred Howard to the supply distribution tech
position and eventually terminated his employment.     See J.A.
1154–68, 1195–96.
                               11
Medical Leave paperwork from both of your Health Care Providers

by Monday, September 19, 2005.”                       Id.     Williams warned Howard

that “[f]ailure to clarify [Howard’s] employment status with us

.    .    .   will   be    considered          job    abandonment     and     grounds     for

termination.”             Id.         Howard    did    not    provide      the   requested

information.         J.A. 486.

         At   Howard’s     request,       Dr.    Lawrence     wrote     to    Williams     on

September 15, 2005.             His letter explained that Howard “continues

to       experience         occasional           stress-induced            seizures       and

dissociative episodes” and “needs evaluation and treatment by a

neurologist,” for which “reasonable time away from his work” was

required.        J.A. 158.        Dr. Lawrence stated that Howard “can soon

begin to function effectively again as a Patient Coordinator or

in some similar position. . . . [I]f he is treated with respect

and      consideration      and       allowed    to    return   to    appropriate        work

around the end of this month, part time at first, he will be a

productive and above average . . . employee.”                        Id.

         On    September        28,    2005,     Howard      faxed    Quick      a     letter

informing her that he intended to return to work on October 3,

2005.         J.A. 159.     Williams contacted Howard that same day and

confirmed receipt of Dr. Lawrence’s September 15, 2005 letter,

but      reminded     Howard      that    he     still      needed    to     provide    FMLA

paperwork from Dr. Lawrence and any other physician currently
                                                12
treating him for his medical conditions “before [he] return[s]

to    work.”     J.A.    161.      Williams      requested       the   paperwork    by

October 7, 2005.

       Howard did not return to work on October 3, 2005 as he had

indicated to Quick.           He faxed a letter to Williams on October 7,

2005, asking for more time to complete the FMLA certifications.

J.A. 165.       On October 17, 2005, Howard had neither returned to

work nor submitted any of the requested FMLA certifications.                        On

that day, Inova’s Assistant Director for Human Resources wrote

to Howard and informed him that “due to the fact that we have

not received any requested documentation to support your leave,

your    employment      has    been    terminated       effective      immediately.”

J.A. 166.

       Howard sued Inova Health Care Services on August 24, 2006,

asserting interference and retaliation claims under the FMLA.

The district court granted summary judgment in favor of Inova

and    denied   Howard’s      motion    to    dismiss      his   complaint    without

prejudice or, in the alternative, to amend his petition to add

an ADA claim.        On July 3, 2007, Howard filed a second suit

against    Inova,    alleging     that       Inova   had    violated    the   ADA   by

discriminating and retaliating against him based on his PTSD.

The district court granted Inova’s 12(b)(6) motion to dismiss


                                         13
Howard’s second complaint on the basis of res judicata.                              Howard

now appeals the judgments of the district courts.



                                               II.

        Howard       appeals    the       district          court’s     opinion     granting

summary judgment on both his interference and retaliation claims

under the FMLA.            Our review of the district court’s grant of

summary judgment is de novo.                     Jennings v. Univ. of N.C., 482

F.3d 686, 694 (4th Cir. 2007) (en banc) (citing Hill v. Lockheed

Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004)

(en banc)).

                                                A.

        In his interference claim, Howard asserts on appeal that

Inova    violated      the     FMLA      by    transferring      him    to    an   alternate

position,        disciplining            him     for        unexcused     absences,      and

terminating          his   employment.               These     claims        are   addressed

separately below.

                                                1.

       Howard argues that his transfer from a billing position in

the   Surgical        Posting    office        into     a    supply    distribution      tech

position in the Unit Management office violated the FMLA because

it    worked     a    hardship      on    him     in    violation       of    29   C.F.R.   §

825.204(d).           Under    29     C.F.R.     §     825.204(a),      an    employer   may
                                                14
transfer       an    employee       “temporarily,             during     the    period      the

intermittent         or    reduced     leave       schedule       is    required,     to    an

available       alternative         position        for       which     the    employee      is

qualified      and    which       better     accommodates        recurring       periods    of

leave than does the employee’s regular position.”                              The “employer

may    not    transfer      the    employee       to    an    alternative       position    in

order to discourage the employee from taking leave or otherwise

work a hardship on the employee.”                   29 C.F.R. § 825.204(d).

       Howard contends that the district court ignored the DOL’s

investigative finding that Inova had violated the FMLA when it

transferred Howard.               Howard further argues that his transfer

from    the    billing      position       into     the      supply    distribution        tech

position was unnecessary because “Inova filled Howard’s billing

office       position      with    hours     from      existing       employees    who     were

asked to work overtime.”               Petitioner’s Br. at 11.                 In addition,

Howard asserts that Inova “ignored the limitations noted in its

own    health       file   that     Howard     was      restricted       to    work   in   the

billing      office,”      id.    at   13,    and      that    the     alternative    supply

distribution tech position “was designed to work a hardship” on

him by moving him from a “sedentary white collar job” to a

position where he was exposed to “blood and the smell of burning

flesh,” id. at 15.


                                              15
     Inova responds that “[r]egardless of when Inova was able to

replace [Howard] with another full-time employee, [Howard’s old

billing position] required a full-time employee, and both his

first and second alternative positions did not.”                       Respondent’s

Br. at 34.     Inova also points out that the new position offered

the same salary and benefits as the old position and involved

“job duties that were a rough equivalent of his tasks in the

billing    office.”        Respondent’s     Br.   at    35.       Inova       further

emphasizes    that    contrary   to    Howard’s     contention,        his    medical

record contained no restrictions as to the kind of work he could

perform.

     Howard’s reliance on the DOL’s investigative findings is

unavailing.     Courts have routinely declined to rely on agency

findings, in part because such a finding does not result from an

adjudicatory    proceeding       and   consequently         has   no     preclusive

effect.    See Phipps v. County of McLean, No. 07-cv-1160, 2008 WL

4534066, at *4 n.3 (C.D. Ill. Oct. 7, 2008) (citation omitted);

cf. Brantley v. Nationwide Mut. Ins. Co., No. RDB-07-1322, 2008

WL 2900953, at *3–5 (D. Md. July 22, 2008); Roberts v. The

Health     Ass’n,    No.   04-CV-6637T,      2007      WL   2287875,         at   *4–7

(W.D.N.Y. Aug. 8, 2007); Hamilton v. Niagara Frontier Transp.

Auth., Nos. 00-CV-300SR, 00-CV-863SR, 2007 WL 2241794, at *13–15

(W.D.N.Y. July 31, 2007).         But cf. Ammons-Lewis v. Metro. Water
                                       16
Reclamation Dist. Of Greater Chicago, No. 03 C 0885, 2004 WL

2453835, at *9 (N.D. Ill. Nov. 1, 2004) (finding that the DOL

report      “may    create      an    issue        of        fact     as    to    whether          [the

plaintiff’s]        first    leave     request           was    improperly            denied,”      but

granting summary judgment in favor of the defendant because the

plaintiff     could       not   show        damages          (citation      omitted)).             The

district court did not err in declining to rely on the DOL’s

findings, and we do not rely on them now in our de novo review.

       Howard stresses that his duties in his billing position

were absorbed by current employees working overtime, but this

argument fails to raise a fact issue as to whether his old

position required a full-time employee, as Inova contends.                                         Nor

does   it    address      the   more        critical          issue    of    whether         his   new

supply distribution tech position better accommodated a reduced

work     schedule.           Although         Howard’s           new       position          required

different     job     duties     than        his       old     position,         an    alternative

position intended to accommodate a reduced work schedule “does

not have to have equivalent duties,” just “equivalent pay and

benefits.”         29 C.F.R. § 825.204(c).                    Howard does not contend on

appeal      that    the     transfer         to        the    supply       distribution            tech

position resulted in a cut in his pay or benefits.

       Howard’s      argument        that    Inova           transferred      him       to    work    a

hardship on him is similarly unpersuasive.                             The record does not
                                                  17
support his contention that Inova transferred him in bad faith

with knowledge that exposure to blood in and around the OR would

exacerbate his PTSD.             The record shows that the most recent

documentation that Inova possessed relating to his PTSD dated

back   to    2001.      Howard       testified      in   his   deposition       that   he

verbally told Quick he could not be exposed to blood and bodily

fluids when she informed him of the transfer in 2005, but he had

submitted     no    FMLA     documentation     of    his   PTSD     for   almost   four

years.      All the FMLA documentation that he had provided in the

preceding three years dealt solely with back problems from his

car accidents in 2002.           He submitted a note from Dr. Lawrence to

excuse      his    six-day    absence    before      beginning      the   new    supply

distribution tech position, but this letter did not notify Inova

that Howard’s PTSD had recurred.                  Rather, it stated only that

Howard “has been suffering from debilitating stress” but was now

“fit to return to duty.”             J.A. 644.      Howard has not shown that a

fact issue exists as to whether Inova transferred him to “work a

hardship” on him under 28 C.F.R. § 825.204.

                                          2.

       Howard argues that Inova violated the FMLA by disciplining

him for unexcused absences in the spring of 2005.                         He contends

that   the    district       court   ignored     evidence      in   the   record   that

“Howard had provided to Inova a FMLA form for intermittent leave
                                          18
in     2003     and     that       Inova      had        lost     Howard’s         FMLA      form.”

Petitioner’s          Br.    at    10.        Relying       on        Williams’s       deposition

testimony        that        “doctor[’]s        notes           are     not       required     for

intermittent leave once it has been approved,” Howard contends

that Inova “violated the FMLA regulations by failing to keep

FMLA    forms    submitted         by    Howard     for     the       required      three    years

pursuant to 29 C.F.R. [§] 825.500.”                             Petitioner’s Br. at 14.

Howard        argues        that     this     2003        form         provided        sufficient

certification         to    excuse      his   absences          in     the    spring    of   2005.

Inova responds that contrary to Howard’s contention, it does

have the 2003 form that Howard submitted.                             Inova also points out

that its policy, consistent with 29 C.F.R. § 825.308, entitles

it   to   request       recertification             of    an     FMLA-qualifying          chronic

condition every 30 days.

       Howard’s argument is not persuasive.                           Regardless of whether

Inova failed to retain Howard’s 2003 FMLA form for three years

as required by 29 C.F.R. § 825.500(b), that regulation does not

require an employer to consider FMLA documentation as effective

for three years.               To the contrary, as Inova points out, an

employer        may        request       recertification               of     a    chronic      or

“permanent/long-term condition[] under continuing supervision of

a health care provider” at least every 30 days, “in connection

with an absence by the employee.”                         29 C.F.R. § 825.308(a); see
                                               19
also Rhoads v. F.D.I.C., 257 F.3d 373, 383 (4th Cir. 2001) (“An

employer     has   discretion    to    require      that    an    employee’s         leave

request ‘be supported by a certification issued by the health

care provider of the employee.’” (citing 29 U.S.C. § 2613(a))

(punctuation omitted)).          Although Howard ultimately submitted a

Certification of Health Care Provider form from Dr. Dade on May

31,   2005   and    received    approval      for   leave    on       a    going-forward

basis from March 29, 2005 to March 28, 2006, he points to no

evidence in the record showing that he submitted such a form or

the necessary leave requests to excuse his nine absences in the

spring of 2005.       The lack of FMLA documentation for his absences

in    2005   is    especially    apparent      in    light       of       the    extensive

documentation he provided in 2002 and 2003 to excuse numerous

absences due to his car accidents.                  See J.A. 597–602, 604–013.

The record does not support a fact issue as to whether Inova

improperly disciplined Howard for his absences in the spring of

2005.

                                        3.

       Howard      argues   that      Inova     wrongfully            terminated         his

employment for failure to provide fitness-for-duty certificates

because Inova improperly required certificates from two doctors.

He    also   contends   that    Inova   improperly         sought         more    than    “a

simple statement” as required by 29 C.F.R. § 825.310(c).                           Howard
                                        20
notes that Inova required Howard to ask his doctors to review a

job description and to provide additional information about his

condition.            He points out that the DOL found Dr. Lawrence’s

September       15,        2005   letter,       which       stated    that       Howard    could

“return to appropriate work around the end of this month,” J.A.

158,    to   be       an    adequate     fitness-for-duty            certification.          See

generally J.A. 1154–68, 1195–96.                         In addition, Howard argues

that “[w]hen an employee is terminated prior to the conclusion

of his 12 weeks of FMLA leave, the termination violates the

FMLA.”       Petitioner’s Reply Br. at 4.                        He asserts that he was

still    eligible          for    FMLA   leave       that    would        have   lasted    until

October      19,       2005,      such     that       Inova’s        termination      of     his

employment on October 17, 2005 violated the FMLA.

        In response, Inova argues that Howard failed to submit any

fitness-for-duty             certification,          despite        written      requests     on

August 26, September 8, and September 28, 2005.                              Citing Bloom v.

Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1030 (8th

Cir. 2006), Inova argues that Dr. Lawrence’s letter was “too

vague     and         conditional”        to      serve       as      a     fitness-for-duty

certification.             Respondent’s Br. at 23.

        Bloom     is       inapposite      to     this      case.          The   Bloom     court

considered        a    diagnostic        report      from    a   non-treating        physician

that the employer had paid to examine the employee during her
                                                21
absence from work. When she wished to resume work, the employee

had asked her two treating physicians to complete a fitness-for-

duty certificate, but neither returned the form to her.                    As a

result, she relied on the diagnosing physician’s earlier report

as “equivalent to a fitness-for-duty certificate.”                  Bloom, 440

F.3d at 1030.           The Eighth Circuit found this report to be “too

vague       and   conditional   to   constitute    a   statement    that   [the

employee] was fit-for-duty.” 5         Id.    Unlike the diagnostic report

in   Bloom,       Dr.   Lawrence’s   letter   in   this   case     was   clearly

intended to convey information to Inova about Howard’s ability

to return to work.          The Sixth Circuit has held that a “fitness-

for-duty certification need only state that the employee can

return to work.”           Brumbalough v. Camelot Care Ctrs., Inc., 427

F.3d 996, 1003 (6th Cir. 2005).          The Brumbalough court noted:

        While the employer may require more information, the
        regulation clearly states that the employer cannot
        delay reinstating the employee simply because the
        employer   is   obtaining  further  information   or

        5
            The report stated as follows:

        Whatever direction or energies her previous treating
        physicians think best for her, it should be carried on
        by them in her behalf.

        If she were working, I would not be able to determine
        any medical basis to restrict work activities as a
        sonographer/electrocardiographer/ultrasound
        technician.

Bloom, 440 F.3d at 1029.
                                       22
       clarification   from          the        employee’s     health     care
       provider. . . .

       This view is bolstered by the fact that the FMLA and
       accompanying regulations lay out in specific detail
       what   must  be   included   in  an   initial  medical
       certification, whereas the regulations expressly state
       that only a simple statement is needed in a fitness-
       for-duty certification. . . .

       Accordingly, we hold that once an employee submits a
       statement   from  her  health  care   provider  which
       indicates that she may return to work, the employer’s
       duty to reinstate her has been triggered under the
       FMLA.

427 F.3d at 1003–04 (citations omitted).

       This   circuit   has    not    yet       addressed    what   constitutes   an

adequate fitness-for-duty certification under the FMLA, but we

need   not    reach   this    issue   because       Inova    properly     terminated

Howard’s employment under 29 C.F.R. § 825.311.                      Section 825.311

states:

       When requested by the employer pursuant to a uniformly
       applied policy for similarly-situated employees, the
       employee must provide medical certification at the
       time the employee seeks reinstatement at the end of
       FMLA leave taken for the employee’s serious health
       condition, that the employee is fit for duty and able
       to return to work if the employer has provided the
       required notice . . . . In this situation, unless the
       employee    provides    either    a    fitness-for-duty
       certification or a new medical certification for a
       serious health condition at the time FMLA leave is
       concluded, the employee may be terminated.

29   C.F.R.   §   825.311(c)    (emphases         added)     (citations    omitted).

Under this section, Inova was entitled to terminate Howard’s

                                           23
employment      because    he     had    not    provided   a    fitness-for-duty

certification or a new medical certification when his August

2005 FMLA leave expired. 6             The record shows that Inova approved

Howard’s    request     “for      intermittent       leave,”    which   “began   on

August 11, 2005 and will end on August 26, 2005.”                         J.A. 679

(emphasis omitted).           Inova expected Howard to resume work on

August   29,    2005,   see     J.A.    659,   and   informed    Howard   that   he

needed     to    provide      a    fitness-for-duty        certificate      before

returning to work, see J.A. 679.               However, Howard did not return


     6
       Howard argues that he still had additional FMLA leave at
the time Inova terminated his employment and that this
termination “violates the FMLA” because it occurred “prior to
the conclusion of his 12 weeks of FMLA leave.”       Petitioner’s
Reply Br. at 4.      Howard cites no regulation or statute to
support this contention, which appears to rely on an untenable
interpretation of 29 C.F.R. § 825.311(c).       In requiring the
employee to provide “either a fitness-for-duty certification or
a new medical certification for a serious health condition at
the time FMLA leave is concluded,” section 825.311(c) does not
refer to all FMLA leave to which the employee is then entitled,
as Howard seems to suggest.     If it did, its requirement of a
“new medical certification for a serious health condition” is
nugatory, because an employee who has reached the end of all the
FMLA leave to which he is entitled in a 12-month period has
exhausted that leave and may not qualify for more, regardless of
whether he submits a new medical certification. See 29 C.F.R. §
825.200(a) (stating that an “eligible employee’s FMLA leave
entitlement is limited to a total of 12 workweeks of leave
during any 12-month period” (emphasis added)). To give meaning
to the entire regulation, section 825.311(c) must be interpreted
to   require   an   employee  to   provide   a   fitness-for-duty
certification or a new medical certification at the time the
employee’s scheduled, approved FMLA leave—for which the employee
has provided the necessary notice and certification—expires.

                                          24
to work on August 29, 2005, and in fact did not attempt to

return to work until October 3, 2005.                        Although Dr. Lawrence

sent       a   September     15,   2005    letter    stating      that     Howard       could

return to work “around the end of this month,” J.A. 158, nothing

in     the     record   shows      that     Howard    submitted       proper       medical

certification         and     sought      reinstatement      at     the     end    of     his

approved FMLA leave.               Under 29 C.F.R. § 825.311(c), Inova was

entitled        to   terminate     Howard’s       employment      because    Howard       had

provided neither “a fitness-for-duty certification” nor a “new

medical certification for a serious health condition at the time

[his approved] FMLA leave [was] concluded.” 7                         Howard has not

shown that a fact issue exists as to whether Inova’s termination

of his employment violated the FMLA.

                                             B.

       In      his    retaliation      claim,       Howard     asserts      that        Inova

retaliated against him for exercising his rights under the FMLA

by disciplining him for unexcused absences, transferring him to

an     alternative          position      that     exacerbated       his     PTSD,       and

terminating his employment “before his 12 weeks of medical leave

was concluded.”             Petitioner’s Reply Br. at 7–9.                   His briefs


       7
        The parties do not dispute on appeal whether Inova
requested a fitness-for-duty certification from Howard “pursuant
to a uniformly applied policy for similarly-situated employees.”
29 C.F.R. § 825.311(c); see also 29 C.F.R. § 825.310(a).
                                25
focus   on    the      alleged     retaliatory       transfer    to    the    supply

distribution        tech     position.          He    emphasizes       that    Inova

transferred him to a position near the OR knowing that his PTSD

could   be    triggered.         He   further   contends    that      Williams   and

Quick, in conjunction with other Inova HR personnel, decided to

leave Howard in the alternative position after learning of his

EEOC complaint, even after both Howard and an old supervisor,

Kavros, told them he should not be working around the OR.

      In response, Inova points out that Quick informed Howard of

his transfer to the supply distribution tech position on June

15, 2005, and that Howard reported for work on June 23, 2005

with a note stating that Howard was “fit to return to duty” as

long as he could “avoid unnecessary stress” if possible.                         See

J.A. 126.      Inova highlights that Howard returned to work “with

full knowledge of his working environment,” but the note failed

to   advise    Inova    of   any      problem   Howard   might   have     with   his

proximity to the OR.          Respondent’s Br. at 38–39.              Inova further

asserts that it did not receive “notice that Howard may have

been in proximity to blood or other PTSD-triggering stimuli in

his alternate position until July 12, 2005 at the earliest, and

there was doubt as to whether this was true or not.”                    Id. at 39.

Inova argues that “as soon as Inova had confirmation that Howard


                                          26
had concerns about being exposed to blood, he was transferred to

another position.”        Id.

      We   have     held     that     “FMLA     claims     arising       under    the

retaliation theory are analogous to those derived under Title

VII and so are analyzed under the burden-shifting framework of

McDonnell Douglas Corp. v. Green [441 U.S. 792, 800–06 (1973)].”

Yashenko v. Harrah’s N.C. Casino Co., LLC, 446 F.3d 541, 550–51

(4th Cir. 2006) (citation omitted).                A plaintiff “must make a

prima facie showing that he ‘engaged in protected activity, that

the   employer     took    adverse    action    against    him,    and    that   the

adverse    action     was    causally      connected      to    the    plaintiff’s

protected activity.’”             Id. at 551 (quoting Cline v. Wal-Mart

Stores,    Inc.,    144    F.3d    294,   301   (4th   Cir.    1998)).      If   the

plaintiff “establishes a prima facie case of retaliation” and

the employer “offers ‘a nondiscriminatory explanation’ for his

termination,” the plaintiff “bears the burden of establishing

that the employer’s proffered explanation is pretext for FMLA

retaliation.”       Id. (quoting Nichols v. Ashland Hosp. Corp., 51

F.3d 496, 502 (4th Cir. 2001)).

      Applying     this     analysis,     the   district       court   found     that

Howard had failed to establish a prima facie retaliation claim

because his transfer to the supply distribution tech position

“was consistent with both FMLA regulations and Inova’s Family
                                          27
and Medical Leave policy” and did not constitute an “adverse

employment action.” 8        J.A. 77.      The court held that even if the

transfer did qualify as an adverse employment action, “Inova has

met its burden of establishing a non-discriminatory reason for

the   transfer”      and   Howard    failed    to       offer    “any    evidence    of

pretext.”      Id.

      Howard    has    not   shown    a    prima    facie       retaliation     claim.

Although he argues that Inova transferred him to and retained

him in the supply distribution tech position in bad faith, he

has not identified evidence in the record to create a fact issue

on this point.        As noted above, the most recent documentation in

Inova’s files relating to Howard’s PTSD dated from 2001.                             All

the FMLA documentation that Howard had submitted in the three

years preceding the recurrence of his PTSD related to his back

problems.        Although    Howard       missed    a    week    of     work   due    to

“debilitating stress,” when he returned the note from his health

care provider did not state that Howard’s PTSD had recurred or

that he needed to avoid exposure to blood.                      Howard admitted in

his deposition that he did not inform anyone at Inova about most

of the dissociative episodes he experienced while working in the


      8
       The district court also noted that insofar as Howard
argued that Inova wrongly disciplined him for absenteeism and
tardiness, Inova properly considered Howard’s absences unexcused
because of his failure to provide FMLA certification.
                                28
OR.     J.A. 432–34.         The record also shows that he did not submit

FMLA certification of his PTSD until August 10, 2005.                               Howard

has not shown that a fact issue exists as to whether Inova’s

decision to transfer him was retaliatory.

                                              C.

      Howard has failed to establish a fact issue as to either

his interference or retaliation claims.                      We therefore affirm the

district court’s grant of summary judgment in favor of Inova.



                                             III.

      Howard       also     appeals    the    district       court’s   denial    of    his

leave    to    dismiss      his    complaint       without    prejudice    or,   in   the

alternative, to amend his complaint.                    The denial of a motion to

dismiss without prejudice is reviewed for abuse of discretion.

See Andes v. Versant Corp., 788 F.2d 1033, 1035 (4th Cir. 1986).

Under    Federal      Rule    of    Civil    Procedure       41(a)(2),    a   court    may

dismiss       an   action    “at    the   plaintiff’s        request   only    by    court

order, on terms that the court considers proper.”                        The denial of

a motion for leave to amend a complaint is reviewed for abuse of

discretion.         Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)

(citing HCMF Corp. v. Allen, 238 F.3d 273, 276–77 (4th Cir.

2001)).        Under      Federal     Rule   of     Civil    Procedure    15(a)(2),    “a


                                              29
court    should      freely    give   leave     [to   amend]   when    justice     so

requires.”

                                           A.

        Howard argues that the district court erred in denying his

motion to dismiss his complaint without prejudice under Federal

Rule of Civil Procedure 41(a)(2).                 The purpose of Rule 41(a)(2)

is “to allow voluntary dismissals unless the parties will be

unfairly prejudiced.”           Davis v. USX Corp., 819 F.2d 1270, 1273

(4th Cir. 1987) (citations omitted).                  In deciding a motion to

dismiss without prejudice under Rule 41(a), “a district court

should consider factors such as ‘the opposing party’s effort and

expense    in   preparing      for    trial,    excessive    delay    and   lack   of

diligence       on    the     part    of    the    movant,     and    insufficient

explanation of the need for a voluntary dismissal,’ as well as

the present stage of litigation.”                  Miller v. Terramite Corp.,

114 F. App’x 536, 540 (4th Cir. 2004) (quoting Phillips USA,

Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)).

        Howard argues on appeal that granting his motion to dismiss

without prejudice would not have prejudiced Inova.                      He asserts

that Inova’s efforts “in this litigation need not be repeated in

any future case” because he has “stipulated that any discovery

shall be admissible in a future proceeding.”                    Petitioner’s Br.

at 22.     He also contends that there was no excessive delay on
                                           30
his part and points out that Inova “delayed producing important

discovery until the last week of discovery and even beyond the

discovery period.”          Id. at 21–22.

         In response, Inova notes that Howard filed his motion to

dismiss     two    weeks    before     trial      and   asserts     that     it    incurred

substantial expense in preparing for trial.                        Citing Andes, 788

F.2d at 1036–37, and related cases, Inova points out that “the

expenses of discovery and preparation of a motion for summary

judgment may constitute prejudice sufficient to support denial

of   a    voluntary       dismissal.”       Respondent’s        Br.    at    47.      Inova

further     argues      that   Howard      was    not   diligent      in    pursuing      his

claims in this case and notes that in the initial discovery

period,        Howard’s    discovery       efforts      consisted     of     one    set   of

interrogatories and document requests issued at the beginning of

the period.        Inova moved to extend the discovery deadline until

April     6,    2007,     because     of   alleged      deficiencies         in    Howard’s

discovery responses.            Howard only attempted to depose Inova’s

corporate representative on April 3, 2007, four days before the

close of extended discovery.                     During this deposition, Howard

made      additional       document     requests        based   on     the    deponent’s

responses, and Inova complied.                    Inova stresses that it never

withheld any nonprivileged responsive information from Howard at

any time.         In addition, Inova highlights that Howard did not
                                            31
file his motion to dismiss until more than three weeks after

discovery closed, and after Inova had filed its summary judgment

motion.

       Our       jurisprudence            on    the      issue     of     what     constitutes

sufficient        prejudice         to    a    nonmovant     to       support    denial       of   a

motion for voluntary dismissal under Rule 41(a)(2) is not free

from    ambiguity.             In    Davis,        we    noted        that     “[i]t    is    well

established that, for purposes of Rule 41(a)(2), prejudice to

the defendant does not result from the prospect of a second

lawsuit”     or       “the    possibility         that    the     plaintiff      will    gain      a

tactical     advantage         over       the    defendant       in     future    litigation.”

819 F.2d at 1274–75.                Similarly, in Fidelity Bank PLC v. N. Fox

Shipping N.V., we held that “the mere filing of a motion for

summary judgment is not, without more, a basis for refusing to

dismiss without prejudice.”                     242 F. App’x 84, 89 (4th Cir. 2007)

(quoting Andes, 788 F.2d 1033, 1036 n.4 (internal quotations and

alterations omitted)).                   However, we have also found on multiple

occasions that a district court does not abuse its discretion in

denying      a    motion       for       voluntary       dismissal       if     the    case    has

advanced     to       the    summary      judgment       stage     and    the    parties      have

incurred substantial costs in discovery.                          See, e.g., Miller, 114

F.   App’x       at    540    (affirming          district        court’s       decision      that

plaintiff’s        motion      for       voluntary       dismissal       was    “untimely      and
                                                  32
would waste judicial resources” because the motion was filed

well   after   discovery   had    closed      and     a   dispositive    order   was

imminent); Francis v. Ingles, 1 F. App’x 152, 154 (4th Cir.

2001) (affirming district court’s denial of motion to dismiss

without prejudice because the “plaintiff’s motion came after a

lengthy   discovery      period    and       merely       one   week    before   the

scheduled trial date” and because “the motivation for the motion

appeared to be to circumvent” a discovery ruling, which counsel

could have avoided “by deposing the witness within the discovery

period”); Skinner v. First Am. Bank of Va., 64 F.3d 659, at *2–3

(4th Cir. 1995) (stating that “[t]he expenses of discovery and

preparation    of   a   motion    for    summary      judgment    may    constitute

prejudice sufficient to support denial of a voluntary dismissal”

and noting that granting a motion to dismiss is not required to

allow a party to “avoid an adverse ruling in federal court”);

Sullivan v. Westinghouse Elec. Corp., 848 F.2d 186, at *2 (4th

Cir. 1988) (“Given the advanced stage of the proceedings, the

district court’s denial of [the plaintiff’s] motion was not an

abuse of discretion.”).

       We conclude that Howard has not shown that the district

court abused its discretion in denying his motion to dismiss

without prejudice on these facts.              The posture of this case is

similar to that in Andes, in which the court noted that the case
                                        33
did     not        present     “extreme      prejudice         to   defendants,”        but

nevertheless was “more advanced than a number of cases . . . in

which voluntary dismissal was held proper.”                          788 F.2d at 1036

(collecting cases).              The defendants in Andes asserted that they

had   incurred        significant        expenses        engaging   in    discovery     and

filing motions for summary judgment.                      The Andes court found that

under    the       circumstances,        “there     was    a   sufficient      basis    for

denying       [the    plaintiff’s]        Rule     41(a)(2)     motion     and   thus    we

cannot       say    that   the   district     court       abused    its   discretion     in

refusing to dismiss without prejudice.”                     Id. at 1036–37.

        In    this     case,      the     record     fails     to    support     Howard’s

explanation of the need for voluntary dismissal.                          Howard asserts

that Inova’s document production late in the discovery period

revealed       that    Inova’s      reasons        for    transferring      Howard     were

pretextual.          He argues that “[t]his showing of pretext warrants

Plaintiff being allowed to join his FMLA claim with his ADA

claim that he requested a right to sue letter from the EEOC on.”

Petitioner’s Br. at 23.                 As Howard’s brief and the record show,

however, Howard was well aware of the possibility of an ADA

claim before he filed his complaint in this case.                           He filed an

EEOC charge alleging an ADA violation on June 27, 2005.                                  He

filed his complaint alleging only his FMLA claims on August 24,

2006.
                                             34
        In addition, the record shows that Howard was not diligent

in    conducting       the    discovery          that    he    asserts    led      to   the    new

information that supports his motion for voluntary dismissal.

Howard emphasizes that Inova was producing documents even after

the    close    of     discovery,          but     Inova      points   out    that      it    only

produced       responsive              documents       due     to   Howard’s       last-minute

requests at the end of the discovery period.                                 Howard has not

shown that Inova failed to provide responsive documents in a

timely fashion related to any of his discovery requests.

        Given the stage of the litigation, Howard’s insufficient

explanation for a voluntary dismissal, and his lack of diligence

in    pursuing       both    discovery           and    his    substantive         claims,     the

district       court    did        not     abuse       its    discretion      in    finding     a

“sufficient basis” to deny Howard’s motion to dismiss without

prejudice.       Andes, 788 F.2d at 1036–37.

                                                  B.

        Howard also argues that the district court erred in denying

his motion to amend.                     Under Rule 15, the district court may

grant     a    motion        to        amend   the      complaint      “when       justice     so

requires.”       A district court does not abuse its discretion in

denying leave to amend if there is “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to

cure     deficiencies             by     amendments          previously      allowed,        undue
                                                  35
prejudice to the opposing party. . . , futility of amendment,

etc.”   Foman v. Davis, 371 U.S. 178, 182 (1962).

      Howard argues that he should be allowed to add an ADA claim

based on the evidence that Inova produced toward the end of

discovery,     which      Howard    asserts     supports      his    argument      that

Inova’s reasons for transferring him were pretextual.                           Inova

argues in response that Howard unduly delayed in moving to amend

his complaint to add his ADA claims, noting that Howard could

have requested a right-to-sue letter from the EEOC at any time

after December 24, 2005 and that he did not seek to amend his

complaint until almost two years after he filed his EEOC charge.

Inova   also   contends      that    to    allow      amendment     would   prejudice

Inova   due    to   the    advanced    stage       of   the   litigation     and    the

different theories of recovery an ADA claim would involve.

      We have noted that “[a]mendments near the time of trial may

be   particularly      disruptive,        and   may     therefore    be   subject    to

special scrutiny.”          Deasy v. Hill, 833 F.2d 38, 41 (4th Cir.

1987) (citation omitted).           The Deasy court found that “a motion

to amend should be made as soon as the necessity for altering

the pleading becomes apparent.”                 Id. (quoting 6 Charles Alan

Wright & Arthur A. Miller, Federal Practice & Procedure § 1488

(1971)).      In this case, Howard has not shown that his proposed

amendment to add an ADA claim resulted from the discovery of new
                                           36
facts that prompted his motion to amend.              To the contrary, the

record shows that Howard was aware of the possibility of an ADA

claim almost a year before he filed his complaint.

     In   ruling   from   the   bench     on   Howard’s   motion    to   dismiss

without prejudice or to amend, the district court noted that

“[t]his EEOC matter was a matter that had been known about.                   And

while there was perhaps some information that came late, I don’t

believe there is any showing that that’s a groundbreaking piece

of information by any means.”           J.A. 29.    The district court did

not abuse its discretion in so holding.

                                     C.

     We affirm the district court’s decision to deny Howard’s

motion to dismiss without prejudice or, in the alternative, to

amend his complaint.



                                    IV.

     Lastly,   Howard     appeals   the    district   court’s      decision    to

dismiss his ADA claim as barred by res judicata.                We review de

novo an order granting a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6).       Giarrantano v. Johnson, 521 F.3d 298,

302 (4th Cir. 2008).

     Howard argues that Inova now “seeks to benefit from the

repose granted by res judicata when the facts demonstrate that
                                     37
in the FMLA case the facts that would have led to the early

joinder of the ADA cause of action were withheld by the actions

of    [Inova].”       Petitioner’s         Br.    at    25–26.        He    asserts      that

because Inova withheld critical information, his counsel “could

not   effectively      question      Williams”          or   “assert       the    ADA    claim

early in the previous litigation.”                    Id. at 28.

       Inova   argues       that     the    elements         for    res     judicata      are

satisfied because the district court’s decision granting summary

judgment in favor of Inova is a final judgment on the merits;

the parties are identical in both actions; and the claims in

both actions arise out of the same core of operative facts.

Inova points out that Howard does not challenge the district

court’s res judicata analysis on appeal, but instead relies on

his    argument     that     Inova    withheld         critical      evidence.           Inova

reiterates     its    assertion       that       it    timely      provided       responsive

documents      to    all    Howard’s       discovery         requests       and    did     not

withhold information.

       “For the doctrine of res judicata to be applicable, there

must be: (1) a final judgment on the merits in a prior suit; (2)

an identity of the cause of action in both the earlier and the

later suit; and (3) an identity of parties or their privies in

the two suits.”            Martin v. Am. Bancorporation Retirement Plan,


                                            38
407 F.3d 643, 650 (4th Cir. 2005) (quoting Pueschel v. United

States, 369 F.3d 345, 354–55 (4th Cir. 2004)).

        The district court did not err in dismissing Howard’s ADA

claim as barred by res judicata.                       Quoting Peugeot Motors of

America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355,

359 (4th Cir. 1989), the district court noted that res judicata

not only “bar[s] claims that were raised and fully litigated,”

but also “prevents litigation of all grounds for, or defenses

to,   recovery      that    were    previously        available         to    the   parties,

regardless of whether they were asserted or determined in the

prior proceeding.”           J.A. 85.              The district court found that

Howard’s      ADA     claims       “clearly         rely     on     the      same    factual

circumstances on which he relied in his prior FMLA claim, namely

Defendant Inova’s decision to transfer [Howard] to a post in the

hospital     that    exposed       him   to    blood       and    the     smell     of   burnt

flesh.”      J.A. 86.        The record bears out this conclusion.                         As

noted    above,     Howard     filed     an    EEOC        charge    of      discrimination

asserting an ADA violation well before he filed his original

complaint asserting FMLA violations arising out of the same core

facts.      Howard could have brought his ADA claim in his original

complaint, but chose not to.              “Broadly speaking, a party always

has   the    option    or    election         of    raising       fewer      than   all    the

potential theories of relief that might be available. However,
                                              39
it is the rule that when a party can present all grounds in

support of his cause of action, he must do so, if at all, in the

proceeding on that cause of action.”               Ohio-Sealy Mattress Mfg.

Co. v. Kaplan, 90 F.R.D. 11, 15 (D.C. Ill. 1980) (citations

omitted), aff’d in part and rev’d in part, 745 F.2d 441 (7th

Cir. 1985), cert. denied, 471 U.S. 1125 (1985), quoted in 18

Charles    Alan   Wright,   Arthur   R.   Miller,     &   Edward   H.   Cooper,

Federal Practice and Procedure, Jurisdiction, § 4407 (2d ed.

2002).

     We affirm the district court’s dismissal of Howard’s ADA

claim as barred by res judicata.



                                     V.

     For    the   reasons   outlined      above,    the   judgments     of   the

district courts are

                                                                      AFFIRMED.




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