                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2646
                         ___________________________

                                    Calvin Withers,

                        lllllllllllllllllllll Plaintiff - Appellant,

                                            v.

    Leon Johnson, Individually and in his Official Capacity as Circuit Judge of
              Pulaski County Arkansas; Pulaski County, Arkansas,

                      lllllllllllllllllllll Defendants - Appellees.
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                              Submitted: April 14, 2014
                               Filed: August 15, 2014
                                   ____________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.

       Calvin Withers sued Leon Johnson individually and in his official capacity as
a circuit judge in Pulaski County, Arkansas, alleging violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29
U.S.C. § 701 et seq., and the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et seq. Withers also sued Pulaski County for the same alleged statutory
violations. After dismissing without prejudice Withers’s individual-capacity claims
against Johnson under the ADA and the Rehabilitation Act, as well as several other
federal and state-law claims that Withers had abandoned, the district court1 granted
summary judgment for Johnson and the County on the remaining claims and
dismissed them with prejudice. Withers appeals, and we affirm.

                                           I.

       Because we are reviewing a grant of summary judgment, we describe the facts
in the light most favorable to Withers. From 2001 to 2011, Withers worked as an
assistant bailiff for the First Division of the Pulaski County Circuit Court. In January
2011, Johnson replaced the previous circuit judge in that division, and Withers
became an assistant probation officer under Johnson’s supervision. According to
Withers, his duties as assistant probation officer were to monitor probationers,
document their compliance with court-imposed instructions, and provide reports to
Johnson when probationers appeared in court. Physical exertion was rarely required,
but on occasion Withers would lift objects weighing twenty-five pounds or more.

       On March 17, 2011, Withers injured his back while working in the circuit
court. He informed Johnson of the injury, sought medical treatment that day, and was
cleared to return to work immediately with the restriction that he not lift more than
ten pounds. Withers gave Johnson a copy of the medical release, and Johnson did not
express any unwillingness to accommodate the ten-pound lifting restriction. Withers
received further medical treatment the following week and was given additional
restrictions on physical activity; each time, he provided Johnson with a copy of the
medical release, and Johnson never objected to the restrictions. Finally, after an
appointment on March 29, Withers’s doctor placed him on “non-duty status.”


      1
       The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.

                                          -2-
Johnson sent Withers a letter on April 4 notifying him that he had “been placed on
Family/Medical Leave as of April 1, 2011 in accordance with Pulaski County Policy.”

       On the afternoon of May 10, 2011, Withers’s doctor cleared him to return to
work, this time with a twenty-five-pound lifting restriction. According to Withers,
he was capable of performing his core job duties as of that date. Withers called
Johnson’s office that day and left a voice message stating in its entirety: “[T]his is
Calvin Withers, give me a call back.” After receiving no response, Withers called
and left another voice message on May 11: “[T]his is Calvin Withers, could you give
me a call back, I left you a message yesterday, could you holler back at me.” Neither
message mentioned that Withers had been cleared to return to work. Again, Withers
received no response from Johnson. On May 12, Withers called Linda Liddell, an
employee in the County’s human resources department, and left her a voice message.

       On Friday, May 13, Withers called a law clerk in Johnson’s office and “told her
the situation . . . what the doctor said” and that he was trying to contact Johnson. The
law clerk told Withers that Johnson had left for a judicial conference and that she did
not feel comfortable giving him Johnson’s mobile telephone number. She told him,
however, that she would send Johnson a text message.

      Johnson received a text message from the clerk that evening informing him that
Withers was trying to reach him; the text message did not mention the reason for
Withers’s call. Approximately forty minutes after Withers spoke with the law clerk,
he received a return phone call from Liddell, who told him that if he sent her a copy
of the medical release, she would forward it to Johnson’s office. Withers faxed
Liddell a copy of the release on Monday, May 16, and she then sent a copy to
Johnson’s chambers.

      In a letter dated May 16, 2011, Johnson informed Withers:



                                          -3-
      It has come to my attention that your attending physician released you
      to return to work on . . . May 10, 2011. According to [County Personnel
      Policy] Art. 1 § 19.B., you are required to IMMEDIATELY provide a
      copy of the release to your supervisor to determine your return to work
      date. Employees who fail to return to work as designated are considered
      to have resigned. The Human Resources Office advised you of your
      obligation to contact your supervisor last Tuesday. As of today, you
      have still not contacted your supervisor and provided a copy of the
      release; therefore, you are considered to have resigned your position.

Withers received the letter a few days later.

       Withers filed suit against Johnson and the County in the district court on
September 7, 2011. He twice amended the complaint, with his second amended
complaint alleging violations of the FMLA, the ADA, the Rehabilitation Act, the Age
Discrimination in Employment Act, and several provisions of Arkansas law. With
respect to the claims at issue in this appeal, Withers alleged that after he was cleared
to return to work, Johnson and the County “failed to reinstate [him] in violation of the
FMLA and retaliated against him for requesting leave.” In addition, Johnson and the
County had “discriminated against [Withers] on the basis of his record of impairment,
his real or perceived disability, as well as failed to accommodate him by granting him
leave and terminating him and retaliated against him for taking leave,” all in violation
of the ADA and the Rehabilitation Act. In his summary judgment briefing, Withers
agreed to dismiss without prejudice his state-law claims against both parties, his
claims under the Age Discrimination in Employment Act, and his individual-capacity
claims against Johnson under the ADA and the Rehabilitation Act.

      The district court granted summary judgment for Johnson and the County on
Withers’s remaining claims. The court first concluded that Withers’s claims against
the County failed because the County was not his employer. As for the complaints
against Johnson, the court rejected the FMLA claims because Withers had received


                                          -4-
the leave he requested and because Johnson offered a legitimate and non-
discriminatory reason for Withers’s termination: his failure to provide immediate
notice of his ability to return to work, in violation of County policy. The court
rejected the ADA and Rehabilitation Act discrimination and retaliation claims
because “no reasonable juror could find that [Johnson] fired Withers because of a less
onerous restriction on lifting” than the restrictions Johnson previously had accepted
without issue. Finally, the court dismissed the failure-to-accommodate claims under
the ADA and the Rehabilitation Act because Withers never asked Johnson to
eliminate marginal job functions that involved lifting heavy objects.

       Withers appeals only the grant of summary judgment in favor of Johnson. We
review the district court’s grant of summary judgment for Johnson de novo, viewing
the evidence and drawing all reasonable inferences in the light most favorable to
Withers, the nonmoving party. Kallail v. Alliant Energy Corporate Servs., Inc., 691
F.3d 925, 929 (8th Cir. 2012). Summary judgment is appropriate if “the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                         II.

       Withers appeals the district court’s adverse grant of summary judgment on his
claims under the ADA and the Rehabilitation Act. Withers contends that Johnson
unlawfully discriminated against him on the basis of a disability (his back injury) by
terminating him and by failing to accommodate his disability, and retaliated against
him for requesting an accommodation. Discrimination under the ADA and the
Rehabilitation Act encompasses both disparate treatment because of a disability and
failure to provide reasonable accommodations to a qualified individual’s known
disability. The former requires proof of discriminatory intent, while the latter does
not. See Hill v. Walker, 737 F.3d 1209, 1216-17 (8th Cir. 2013); Peebles v. Potter,
354 F.3d 761, 765-67 (8th Cir. 2004). As relevant to Withers’s claims, “decisions

                                         -5-
interpreting either the ADA or the Rehabilitation Act are applicable and
interchangeable to claims under each statute.” Hill, 737 F.3d at 1216 (internal
quotation omitted).

                                          A.

       Withers first argues that Johnson discriminated against him by terminating him
because of his disability. The ADA prohibits “discriminat[ion] against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). The Rehabilitation Act
similarly prohibits discrimination against any “otherwise qualified individual with a
disability . . . solely by reason of her or his disability.” 29 U.S.C. § 794(a). To
establish discrimination under the ADA, a qualified individual with a disability must
show that he has “suffered an adverse employment action as a result of the disability.”
Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 482 (8th Cir. 2007). Because the
record was fully developed on the motion for summary judgment, we may proceed
to the ultimate question whether Withers presented a submissible case of intentional
discrimination. See Hill, 737 F.3d at 1218-19.

       In support of his claims, Withers argues primarily that Johnson’s purported
reason for his termination was illegitimate. Citing 29 C.F.R. § 1630.14(c), which
permits an employer to require job-related medical examinations but forbids
disclosure of examination records to non-supervisory staff, he argues that Johnson
unlawfully fired him for failing to disclose his private medical information to non-
supervisors. But the undisputed facts do not support the premise of Withers’s
argument: Johnson terminated Withers’s employment because Withers violated the
County’s policy that he must immediately provide his supervisor with his medical
release. Withers could have delivered a copy of his medical release directly to
Johnson, as he did on the date of his injury and initial medical treatment. Instead, he
left Johnson two telephone messages that did not mention his ability to return to
work. A few days after receiving his release, Withers eventually contacted a human-

                                         -6-
resources employee, who offered to deliver the release if he sent it to her, but Withers
still did not immediately present the release. Even granting all reasonable inferences
in Withers’s favor, Withers has not shown that Johnson violated the ADA regulations.

      Withers points out that Johnson’s termination letter also cited another provision
of County policy—concerning employees who fail to return to work as
designated—that is inapplicable here. But Johnson’s misconstruction of that portion
of the policy does not suggest that his actions were motivated by discriminatory
animus rather than Withers’s failure immediately to give Johnson his medical release.
Withers also points to Johnson’s failure to return his calls as evidence of
discrimination. But Withers’s two phone messages did nothing more than request
that Johnson call him back, and a failure to return two nondescript telephone
messages does not support an inference of discrimination based on disability. When
Johnson was presented earlier with information that Withers injured his back, it is
undisputed that Johnson accommodated all of Withers’s work restrictions without
objection. Cf. Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir. 2012). No
genuine issue of material fact exists for trial regarding whether Johnson discriminated
against Withers on the basis of his disability.

                                          B.

       Withers also argues that Johnson discriminated against him by “not making
reasonable accommodations” of his disability. 42 U.S.C. § 12112(b)(5)(A). On this
claim, the employer’s intent is not determinative. “Rather, discrimination occurs
when the employer fails to abide by a legally imposed duty.” Peebles, 354 F.3d at
767. We see no merit to Withers’s claim. Withers acknowledges that Johnson abided
by all of Withers’s work restrictions and that Withers requested and received leave
due to his back injury. Withers claims that he “intended to request that . . . marginal
job functions be eliminated” upon his return to work, but Withers’s employment
ended for reasons unrelated to his disability before he made any such request. The

                                          -7-
record demonstrates that Johnson accommodated all of Withers’s known limitations
during the period of his employment at issue.

                                          C.

       Finally, Withers asserts that Johnson violated the ADA and the Rehabilitation
Act by retaliating against him for requesting accommodations for his disability. The
ADA provides that “[n]o 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.” 42 U.S.C.
§ 12203(a). This court has held that a person who is terminated after making a good-
faith request for an accommodation may pursue a retaliation claim under the ADA
and the Rehabilitation Act, although the textual basis for these claims is unclear. See
Hill, 737 F.3d at 1218; see also Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir.
2003). “In any event, our precedent says that we treat retaliation claims under the two
statutes interchangeably.” Hill, 737 F.3d at 1218.

       “To establish unlawful retaliation under the ADA, [Withers] must show that
(1) [he] engaged in a statutorily protected activity, (2) the employer took an adverse
action against [him], and (3) there was a causal connection between the adverse
action and the protected activity.” Id. We may assume for the sake of analysis, in
light of Heisler, that Withers engaged in a statutorily protected activity by requesting
leave time while he recuperated from his back injury. And termination is an adverse
action. But Withers fails to establish a genuine issue for trial regarding the requisite
causal connection between the two. Johnson’s termination of Withers for failing
immediately to provide him a copy of the medical release was lawful, and Withers
was not required to disclose his medical information to non-supervisors. Withers
offers no evidence that retaliation was the true motive for the firing. Withers
mentions the temporal proximity of his leave to his termination, but timing alone is

                                          -8-
not sufficient to create a genuine issue of fact, particularly given that Johnson’s
proffered reason for the termination arose in the same window of time. See Sprenger
v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1114 (8th Cir. 2001). The
district court thus properly granted summary judgment for Johnson on Withers’s
claim of unlawful retaliation.

                                           III.

       Withers also argues that Johnson interfered with his entitlement to FMLA leave
by requiring him to fax his medical release to the circuit court or otherwise to disclose
his private medical information to personnel other than Johnson in order to return to
work. An employee who takes FMLA leave is entitled, with exceptions not relevant
here, to be restored to a position that is the same as, or substantially equivalent to, his
position when leave began. 29 U.S.C. § 2614(a). FMLA regulations permit an
employer to require a medical clearance as a condition of restoring the employee to
his position, 29 C.F.R. § 825.312(a)-(b), but the regulations—like those under the
ADA—require that those records be kept confidential from non-supervisory
personnel. Id. § 825.500(g). FMLA regulations also provide that “[a]ny violations
of the Act or of these regulations constitute interfering with . . . the exercise of rights
provided by the Act.” Id. § 825.220(b). As previously discussed, however, Johnson
did not require Withers to disclose his medical information to non-supervisory
personnel. Johnson terminated Withers for violating County policy requiring him
immediately to deliver the medical clearance to Johnson. That policy was lawful, and
Withers could have complied in the same manner that he had in the past. Withers
failed to make a submissible case of interference with his FMLA rights.

                                    *       *       *

      The judgment of the district court is affirmed.
                     ______________________________

                                           -9-
