                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1288


TONI C. WORKS,

                 Plaintiff - Appellant,

           v.

CAROLYN W. COLVIN, Acting Commissioner, U.S. Social Security
Administration,

                 Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:10-cv-01284-RDB)


Argued:   February 21, 2013                 Decided:   April 24, 2013


Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Richard Talbot Seymour, LAW OFFICES OF RICHARD T.
SEYMOUR, PLLC, Washington, D.C., for Appellant.     Jason Daniel
Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.    ON BRIEF: Gary M. Gilbert, Sarah E.
Diouf, Stephanie M. Herrera, Daniel A. Katz, THE LAW OFFICES OF
GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, Maryland, for
Appellant.     Rod   J.  Rosenstein,  United   States   Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Appellant          Toni     C.        Works     filed      this      employment

discrimination         suit      under    the       Rehabilitation         Act,     29    U.S.C.

§§ 701 et seq., against the Social Security Administration (the

“SSA” or “Appellee”).               She claims the SSA illegally terminated

her    from      a    probationary         program          for    disabled       individuals

attempting to re-enter the workforce.                        This case was first heard

by an administrative law judge (“ALJ”), who decided in the SSA’s

favor,     and     that     decision     was    upheld       by    the   Equal     Employment

Opportunity Commission (“EEOC”).

              Works       then    filed    a    separate          suit   in   the      district

court.     There, in her response to the SSA’s Motion to Dismiss,

or    Alternatively,             for     Summary       Judgment,         Works         requested

discovery pursuant to Rule 56(d) of the Federal Rules of Civil

Procedure, as she had not yet had the opportunity to conduct

discovery        at   the    district      court      level.         The   district        court

granted the SSA’s motion –- deeming it a summary judgment motion

-- without passing on Works’s discovery request.                                  Indeed, the

court addressed the request for the first time in its subsequent

denial of Works’s Motion for Reconsideration.

              We      hold    the       district       court’s       denial       of     Works’s

discovery request was an abuse of discretion.                              Works set forth

in    an   affidavit         specific,      discoverable           evidence       that     could

enable her to defeat the SSA’s motion, including testimony from

                                                3
SSA   employees      and     managers           who       did     not       testify      at     the

administrative hearing and were never deposed.

            Therefore,       we        vacate       the    district           court’s        orders

granting summary judgment to the SSA and denying Works’s Motion

for   Reconsideration,           and    remand        with      instructions            to    grant

Works’s request for discovery.

                                               I.

                                               A.

            Works is a disabled veteran of the United States Navy.

She suffered a service-related accident in 1985, which resulted

in a permanently disabling seizure disorder.                             She was honorably

discharged   from      the   Navy        in     1989.           From    November         1989   to

September 1991, she worked as a biomedical equipment technician.

The next year, Works stopped working as a result of her seizure

disorder.      She     applied          for        and    received          100%    disability

compensation    from       the    SSA,        which       found       her     to   be    totally

disabled.      After    that,          Works    applied         for     and    received       100%

disability   benefits        from       the     Department         of       Veterans     Affairs

(“VA”), which likewise found that she was completely disabled.

From 1992 to 2002, Works did not have gainful employment.

            On August 26, 2002, Works began working at the SSA as

a probationary employee, “which meant she could work for the SSA

on a trial basis for one year without having to discontinue her

disability     benefits           to      demonstrate             whether          she        could

                                               4
successfully        perform    the     job    and       be   retained     on    a     permanent

basis.”          Works   v.   Astrue,       Civ.       Action   No.   10-1284,         2011    WL

1197655, at *1 (D. Md. Mar. 29, 2011) (J.A. 2156); 1 see also 20

C.F.R. § 404.1592(a).               Works worked as a “Management Assistant”

in the Office of Management Operations (“OMO”).                           As a Management

Assistant, she was required to, inter alia, conduct workflow

studies;        maintain,     gather,       and    compile      informational          records

such       as    organizational        and    workflow          charts;        make    routine

calculations,        such     as    staff    hours       and    workload       figures;       and

develop,        evaluate,     and    advise       on    methods    and    procedures          for

providing administrative support systems to organizations.                                    Her

supervisors at OMO were Marjorie Warner, Branch Manager, and

William         Johnson-Bey,        Deputy    Branch         Manager.           OMO    project

managers for whom she worked were Noma Carter and Jane Leidig.

                The quality of Works’s performance during her tenure

with OMO is disputed.               On March 19, 2003, Johnson-Bey met with

Works to discuss her mid-year performance review.                               There is no

written record; however, in a later memo given to Works, Warner

recounted the results of that review.                           That memo, which was

given to Works on June 23, 2003, stated that at the mid-year

point in March, Works’s performance was “basically satisfactory,


       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                              5
although not exceptional.”               J.A. 1701 (the “June 2003 Memo”).

The June 2003 Memo continued, “The only negative addressed at

[the time of the March mid-year review] was your handling of a

budget data entry project assigned to you by the Deputy Branch

Manager,        Bill      Johnson-Bey,           which     you     had      difficulty

understanding and needed an excessive amount of direction to

complete.”       Id.

               The    June     2003   Memo   also   mentioned      another    project:

developing a database to capture course registration data.                         The

memo       states,     “[W]e    asked   that     you     prepare   and   schedule   a

briefing to demonstrate the database.                     Your co-worker, shortly

thereafter,          demonstrated     the    database,      in   passing,    and   you

interjected a few items.              . . . [F]eedback since, has indicated

that your co-worker has done most of the work on this project.”

J.A. 1701. 2

               Also during the first half of her probationary period,

Works experienced some health problems.                   From late December 2002

       2
        In   April  2003,   Works’s  supervisors  asked   for  a
presentation on the progress of this project, which she was
completing with co-worker George Frank.    At the administrative
hearing, Warner testified, “[I]t was obvious that this was
George’s work and not Toni’s” and said that Frank told her Works
“was more of a hindrance than helping.” J.A. 1103. Frank, who
also testified at the administrative hearing, agreed that Works
was “taking credit for the majority of th[e] project from
[him].”   Id. at 1031.    But he also testified that Works had
“good work ethics,” was “a diligent worker,” “applied herself,”
and her work was “good quality.” Id. at 1017, 1018, 1020.



                                             6
to January 2003, Works’s doctors at the VA began trying new

medications for her seizure disorder.              In January, she suffered

a seizure at home and as a result, could not work for nearly two

weeks.     Works had not accrued enough sick leave to cover her

absence from work, so she requested advanced sick leave from

Warner, who approved the request.            On   February     13,    2003,     she

suffered another seizure -– this time at work -- and requested

another week’s worth of leave, which was approved.                   Works missed

other    days   in   February,   both       related    and   unrelated    to    her

disability.      Her leave was approved for all of these days.                  See

J.A. 1683-85 (leave slips with approval signatures of Johnson-

Bey and Warner). 3

            During    the   spring   and      summer    of   2003,    Works    took

additional leave for issues unrelated to her seizures, but all

of this leave was also approved by either Warner or Johnson-Bey.

See J.A. 1686-97 (leave slips, all approved by Johnson-Bey or

Warner).    Works also suffered a seizure on July 15, after which

she missed work from July 15-17, and this leave was approved by

Warner.    See id. at 1694.




     3
       One of these leave slips for February 24 and 25 was
approved by Warner “pending documentation.”     J.A. 1685.   The
record shows that a medical excuse was provided for February 25,
but it is unclear whether Warner retracted her contingent
approval.



                                        7
           The     June       2003   Memo     also     outlined      performance

deficiencies     during   a    portion   of   the    second   half   of   Works’s

probationary period, from March to June 2003.                 It stated, “Since

[the March mid-year] progress review, several other issues have

come to light, which indicate a need for improvement and which

may impact our decision to retain you beyond your probationary

period.”   J.A. 1701.     These issues were as follows:

       •   Works was resistant to join the typing pool for
           two hours a day, which would have extended the
           opportunity to work overtime on the weekends,
           because Works did not want to work overtime;

       •   Works wrongly notified Warner that she could be
           released from having her work reviewed because
           her mentor was pleased with her work;

       •   Works took too long completing a project assigned
           by Johnson-Bey. The June 2003 Memo stated, “Much
           direction is needed to get a completed assignment
           from you.    [Y]ou don’t seem to comprehend the
           instructions given.”

Id. at 1701-02.      The June 2003 Memo went on to discuss Works’s

character traits as follows:

     Dependability - [I]n addition to your assignments not
     being completed timely, you are frequently absent,
     unaware of your leave balances, and you seem to have
     trouble comprehending the rules for requesting and
     using leave.    . . .   Your documentation is usually
     vague and doesn’t usually justify total incapacitation
     for duty.   In addition, you frequently make incorrect
     entries on the sign-in sheets and you continue to make
     these incorrect entries even after instruction is
     provided.    . . .      Your sign-in and out times
     frequently disagree and your leave slips often do not
     agree with the entries in the leave column on the
     sign-in sheets[.] You also sign out or annotate your


                                         8
     leave on other employees’ lines, or you sign out, out
     of order.

     Application of Time – [Y]ou are often out of the area.
     You have been seen in the halls and at other
     employees’ desks for long periods of time and you
     appear to be having personal conversations rather than
     work-related conversations.     You have often been
     observed on the phone for long periods of time, as
     well, having personal conversations.    You have also
     been observed sleeping during meetings, most recently
     at the CMA Townhall meeting.

Id. at 1702.          The June 2003 Memo concluded with the statement,

“Thus     far    your     performance       and    conduct     has      considerably

deteriorated since the last performance discussion and immediate

and substantial improvement is needed.”               Id.

            On July 18, 2003, after a three-day absence due to a

seizure, Works went to Warner and asked if she would be retained

beyond her probationary period.                 Warner told her, if she had to

make the decision that day, Works would not be retained “because

she hadn’t made any effort to improve in any of the areas []

pointed out [in the June 2003 Memo].”                     J.A. 1121.      After that

conversation, Works approached the EEOC on July 22, 2003, about

a possible claim.           Then, she asked to meet with Warner and

Johnson-Bey      in    order    to   show   them    that    she   was    capable   of

performing the job.        They agreed.

            Warner set up the meeting for the morning of July 25.

Works attended with a banker’s box full of documents in order to

justify    the    work    she    had   been      doing;    however,     upon   closer


                                            9
examination, the box was full of the same two pages copied over

and over again.         When questioned about this, Works “began crying

and talking about personal problems she was having with her home

life.”   J.A. 1122.

              That afternoon, Works was given a notice of proposed

removal, with an effective date of two weeks later, August 8,

2003,    about    two     weeks     short    of     the     end   of   her    one-year

probationary period.          The termination notice gave the following

reasons for termination:

         •    “repeated failure to complete assignments as
              expected,” which can “largely be attributed to
              your excessive amount of time that you have been
              seen away from your workstation, socializing with
              others, aimlessly walking the halls and spending
              an inordinate amount of time on the telephone for
              personal reasons”; and

         •    “[I]t is essential that our employees report to
              work regularly and perform their duties.    Your
              actions are unacceptable because when you have
              been out on unscheduled leave, management cannot
              depend on you being available to accept and
              perform the assignments expected.”

J.A. 2003.

              The following Monday, July 28, 2003, Works returned to

work and asked Warner for reassignment to a different position.

Warner       referred     Works     to     Joan    Stewart-Stevens,          Assistant

Associate      Commissioner       for    Management       Operations   Support,   who

called a meeting with “all the managers . . . and team leaders,”

including       Warner;     Johnson-Bey;          Leidig;     Kathy    Fox,     Center


                                            10
Director; Denise Kendall, Deputy Center Director; Yvonne Curry,

Team       Leader;   and    Phyllis     Branch-McCoy. 4         J.A.   1404-05     (the

“Stewart-Stevens           Meeting”).        Stewart-Stevens      asked    all     those

present, “[S]hould this employee be terminated[?]” and “each one

of them said yes.”             Id. at 1405.         It is undisputed that Noma

Carter, one of Works’s project managers, was not present at the

meeting.         Works      alleges     Carter     was   deliberately       excluded;

however,      Warner     testified      at   the   administrative        hearing    that

Carter simply “didn’t show up,” and that they obtained Carter’s

approval for termination the following day.                    Id. at 1137. 5




       4
         Branch-McCoy’s           position         is    not     clear     from      the
administrative record.
       5
       Carter testified at the administrative hearing that she
was not invited to the Stewart-Stevens Meeting, but that her
opinion would be that Works should not have been fired.      See
J.A. 1481. She also stated at the hearing that after Works was
notified of her termination, she was “never” asked about Works’s
performance.    Id. at 1470.     This is contrary to Warner’s
testimony: “Bill Johnson-Bey and I met with [Carter] separately
the next day [after Works was terminated] and asked her what her
opinion was of Toni’s performance . . . and we asked her if she
was in agreement with [the termination].” Id. at 1137. Warner
stated that Carter responded, “[Works] would function probably
better in a job that was more structured and had more
supervision” and that Works should not be retained.       Id. at
1137-38.




                                             11
                                          B.

               After Works’s contact with the EEOC on July 22, 2003,

the   administrative          investigation      began.           Works   requested   a

hearing before an ALJ, and the administrative hearing took place

during four days in August 2006.                The ALJ ruled in favor of the

SSA, finding the SSA granted the only accommodation Works ever

sought    (taking       leave),        Works     had       consistent       performance

problems,      and    those    problems,       rather      than    discrimination     or

retaliation, resulted in her termination.                    Works appealed to the

EEOC, and on February 19, 2010, the EEOC affirmed the ALJ’s

decision.

            Works then filed the instant action in the District of

Maryland on May 21, 2010.              On August 26, 2010, the SSA filed a

Motion    to    Dismiss,       or    Alternatively,        for     Summary    Judgment.

Because   this       motion    was    styled    as     a   motion    to   dismiss,    by

operation       of    the     District    of     Maryland’s         Local    Rules,   a

scheduling order could not be entered -– and discovery could not

commence -– until the motion was resolved.                          See D. Md. Local

Rule 104(4) (“Unless otherwise ordered by the Court or agreed

upon by the parties, the conference of counsel required by Fed.

R. Civ. P. 26(f) need not take place and discovery shall not

commence and disclosures need not be made until a scheduling




                                          12
order is entered.”). 6         Works responded to the motion on February

8, 2011, and requested time to conduct discovery pursuant to

Rule 56(f) (actually 56(d)). 7             Her attorney attached an affidavit

specifically      explaining        the    discovery      needed   at   the   district

court level and the relevance thereof.                     See J.A. 1872-73 (the

“Affidavit”).

               The district court granted the SSA’s motion on March

29, 2011, without mentioning Works’s discovery request.                         Works

then filed a Motion for Reconsideration on April 12, 2011.                         In

that motion, she noted that the district court “remained silent”

on her discovery request, and she argued, “[t]he Court should

have       permitted   [her]   to    conduct      discovery     before   ruling   for

Defendant based on an incomplete factual record.”                         J.A. 2173.

The    district    court   denied         the    Motion   for   Reconsideration    on

February 3, 2012.          As to the discovery request, the district

court stated only the following:

       6
       The operation of this rule can be seen in Young v. United
States, which states, “Because of the dispositive nature of the
[motion to dismiss or for summary judgment], it is not
appropriate at this time to enter a scheduling order that would
permit discovery to commence.”        No. RDB-08-3349, 2009 WL
2170068, at *1 n.1 (D. Md. Jul. 20, 2009).
       7
       Rule 56(f) was recodified as Rule 56(d) on December 1,
2010, without significant substantive change.  In her response
to the SSA’s motion in February 2011, Works inadvertently cited
to Rule 56(f).   For ease of reference, we herein refer to the
appropriate rule as “Rule 56(d),” regardless of which version
was in effect at the particular time.



                                            13
       [T]his Court does not need to expressly explain its
       reasoning when granting an order that is inconsistent
       with the requested relief.      As the Fourth Circuit
       explained in Malbon v. Pa. Millers Mut. Ins. Co., “the
       determination of a motion need not always be expressed
       but may be implied by the entry of an order
       inconsistent with the granting of the relief sought.”
       663 F.2d 936, 939 n.8 (4th Cir. 1980).

Id. at 2274.        Works then timely noted this appeal. 8

                                           II.

               Rule   56(d)    “require[s]       that   ‘summary    judgment    be

refused where the nonmoving party has not had the opportunity to

discover       information    that   is     essential   to    his   opposition.’”

Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986));

see also Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

961 (4th Cir. 1996) (Generally, “summary judgment is appropriate

only       after   adequate   time   for    discovery.”      (internal   quotation

marks omitted)).        The rule “is intended as a safeguard against a

premature grant of summary judgment . . . thus, [courts] should

construe the rule liberally[.]”              King v. Cooke, 26 F.3d 720, 726

(7th Cir. 1994); see also Harrods Ltd. v. Sixty Internet Domain

Names, 302 F.3d 214, 245 n.18 (4th Cir. 2002) (discussing with

approval sources in favor of applying the rule liberally).                     Such


       8
       The district court also dismissed a number of Works’s
claims for failure to exhaust administrative remedies. Works
does not appeal the judgment as to those claims.



                                           14
requests should be denied, however, “if the additional evidence

sought for discovery would not have by itself created a genuine

issue of material fact sufficient to defeat summary judgment.”

Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal

quotation marks omitted).           We should not reverse a denial of a

Rule 56(d) request unless we find “a clear abuse of discretion

or, unless there is a real possibility the party was prejudiced

by the denial of the extension.”             Id. (internal quotation marks

omitted).

                                      III.

                                       A.

              In her response to the SSA’s Motion to Dismiss or,

Alternatively, for Summary Judgment, Works asked the district

court for a chance to conduct discovery, as she had not yet had

the   opportunity    to   conduct    discovery   at   all   in   the   district

court.       She explained that she needed documents and deposition

testimony on “a range of disputed issues,” including:

         •    “Defendant’s characterization of Plaintiff’s work
              on certain projects”;

         •    “Defendant’s knowledge that Ms. Works’ medical
              condition affected her work performance such that
              she required a reasonable accommodation”;

         •    “Defendant’s argument that Ms. Works was not a
              qualified individual with a disability because
              she could not perform the essential functions of
              the job of a Probationary Management Assistant”;
              and


                                       15
       •   “The specific performance deficiencies Defendant
           asserts justify its termination of Ms. Works.”

J.A. 1835.   The Affidavit, which was attached to the response,

explained that the following evidence needed to be collected:

       •   “instructions provided to Ms. Works”;

       •   “correspondence or the details of conversations
           regarding   Ms.  Works’  performance on   those
           projects”;

       •   “the final version of any projects assigned to
           Ms. Works, as well as drafts of Mr. Works’ work
           on those projects”;

       •   “medical documentation from the Nurse’s Suite
           . . . as it may give some indication of how Ms.
           Works’   seizure   disorder  affected  her   work
           performance and what symptoms she experienced and
           exhibited in the workplace”;

       •   deposition testimony of Dionne (Harrison) Miller,
           Blas Rueda-Caraballo, Renee M. Moore, John Wargo,
           and/or    Shawnte   Jordan,  “all   of whom  were
           Probationary Management Assistants either during
           Ms. Works’ tenure at the Agency or shortly after
           her    termination.       In  addition  to  being
           comparators, these employees possess critical
           information regarding the essential functions of
           the Management Assistant position”;

       •   deposition   testimony of  Warner,  Johnson-Bey,
           Yvonne Curry, and Noma Carter, “all of whom
           supervised Ms. Works on the various projects at
           issue and can provide insight into her work
           performance”;

       •   deposition testimony of Denise Kendall, Janet
           Edrington, Kathy Fox, Ethel Maker, “and/or any
           other Agency Employee Relations staff who were
           involved in drafting or have knowledge regarding
           the Termination of Career Conditional Appointment
           issued to Ms. Works on July 25, 2003.”


                                16
Id. at 1872-73. 9

            The SSA contends, “because the record in this case

makes clear that [Works] had every opportunity to discover all

pertinent facts necessary to her opposition,” and because she

“failed to demonstrate how any more discovery was ‘essential’ to

her    opposition,”     the   district      court’s   tacit   denial   of    her

request for discovery should be affirmed.                Appellee’s Br. 27.

In    support   of   its   position,   the    SSA   references   the   numerous

exhibits and pages of testimony from the ALJ hearing available

to Works and notes that she had ample time at the administrative

level to collect evidence relevant to her case.

                                       B.

            Rule 56(d) provides,

       If a nonmovant shows by affidavit or declaration that,
       for   specified  reasons,   it  cannot   present  facts
       essential to justify its opposition, the court may:

            (1) defer considering the motion or deny it;

            (2)   allow   time   to   obtain   affidavits               or
            declarations or to take discovery; or

       9
       We reject the SSA’s contention that Works waived this
request for discovery because it was “not included in the
argument section of her summary judgment opposition brief” but
rather, “tucked . . . in the middle of her recitation of the
legal standards.” Appellee’s Br. 26. Works squarely presented
a Rule 56(d) affidavit to the district court, which this court
has deemed sufficient.    See Harrods, 302 F.3d at 244 (“If a
party believes that more discovery is necessary for it to
demonstrate a genuine issue of material fact, the proper course
is to file a Rule 56([d]) affidavit[.]”).



                                       17
               (3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).              This court has long held that parties

wishing to obtain additional discovery must “specifically allege

why the information sought would have been sufficient to create

a    genuine    issue   of    material      fact    such    that   it   would     have

defeated summary judgment.”               Strag v. Bd. of Trustees, 55 F.3d

943, 954 (4th Cir. 1995); see also Nguyen v. CAN Corp., 44 F.3d

234, 242 (4th Cir. 1995) (affirming district court’s denial of

Rule 56(d) request because Nguyen did not “focus our attention

on    an   affidavit         presented      to     the     district     court     that

particularly specifies legitimate needs for further discovery”).

               In Ingle v. Yelton, this court held that the district

court abused its discretion in denying Ingle’s Rule 56(d) motion

in the context of a motion to dismiss, or in the alternative for

summary    judgment.         See    439   F.3d     191,    194   (4th   Cir.    2006).

Ingle asked for extra time in order to seek videotape evidence

of a police chase and shooting that left her son dead.                            This

evidence was to be used to support Ingle’s theory of the case

with regard to qualified immunity:                 that the window in her son’s

car was closed when officers took shots at him.                    The defendant’s

theory, in contrast, was that Ingle’s son was aiming his shotgun

at the officers through an open car window.                  See id. at 195.

               We held the district court abused its discretion in

failing    to     grant      this    request       for    discovery     because     it

                                           18
“seemingly ignored” an earlier request for such evidence, the

necessary information was “possessed only by her opponent,” and

“there was a sufficient basis to believe such videos existed,

and [] this evidence represented Ingle’s principal opportunity

to   contradict    the    assertion     that     the    district     court   found

dispositive[.]”       Id. at 196-97.

           Like Ingle, here, Works set forth in the Affidavit

legitimate     requests     for      discovery     that    could      very      well

“contradict the assertion[s]” made by the SSA to the district

court, as explained infra.              Furthermore, because certain key

players   in   this    matter   --   employees     of    the   SSA   --   did    not

testify at the administrative hearing and were not deposed at

that level or at the district court level, there is a “real

possibility that [Works] was prejudiced by the denial” of her

discovery request.        Ingle, 439 F.3d at 195 (internal quotation

marks omitted).

                                        C.

           Works      brought   three   claims    under    the     Rehabilitation

Act, 29 U.S.C. §§ 701, et seq. 10            First, she claimed that the SSA

     10
        Section 504 of the Rehabilitation Act provides, “No
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance[.]”  29 U.S.C.
§ 794(a).


                                        19
discriminated     against     her     based   upon   her   disability      (the

“Discrimination Claim”); second, she claimed that the SSA failed

to accommodate her disability (the “Accommodation Claim”); and

third,    she   claimed    that   the   SSA   retaliated   against   her    for

requesting leave and reassignment (the “Retaliation Claim”).                 As

explained below, her specific requests for discovery bear on the

disputed nature of each of these claims.

                                        1.

                          The Discrimination Claim

            The analysis used to determine whether an employer has

discriminated under the Rehabilitation Act is the same as the

analysis under the Americans with Disabilities Act (“ADA”).                See

Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001).                 To

establish a claim of discrimination under the ADA, a plaintiff

must show she (1) was a qualified individual with a disability;

(2) was discharged; (3) was fulfilling her employer’s legitimate

expectations      at    the    time     of    discharge;   and   (4)       “the

circumstances of h[er] discharge raise a reasonable inference of

unlawful discrimination.”         Reynolds v. Am. Nat’l Red Cross, 701

F.3d     143,   150    (4th   Cir.    2012)   (internal    quotation    marks

omitted).       The SSA claims discovery on this claim would be

futile.    We disagree.

            The parties have agreed that Works has a disability:

the seizure disorder.          As to the other aspect of the first

                                        20
element,      in    determining     whether       a    plaintiff     is    a   qualified

individual, a court should ask whether she is someone who, “with

or without reasonable accommodation, can perform the essential

functions of the employment position[.]”                      42 U.S.C. § 12111(8).

A court must decide (1) whether she could perform “functions

that   bear      more    than   a   marginal      relationship        to   the   job    at

issue,” and (2) if not, whether “any reasonable accommodation by

the employer would enable [her] to perform those functions.”

Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994)

(internal quotation marks omitted) (alteration in original).

              The Affidavit asks for deposition testimony of other

Probationary        Management      Assistants         who   were    employed     either

during     Ms.     Works’s   tenure     at    the     SSA    or   shortly      after   her

termination.         We agree with the Affidavit that “these employees

possess critical information regarding the essential functions

of the Management Assistant position,” J.A. 1873, which bears on

whether Works was a qualified individual.

              Furthermore, there is certainly some dispute as to

Works’s performance, the employer’s expectations, and the level

of instruction and training provided to Works.                             See King v.

Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (considering whether

employee was performing to employer’s “legitimate expectations”

is   key   to      establishing     a   prima     facie      discrimination      claim).

Indeed,    one      of   Works’s    arguments         to   the    district     court   was

                                             21
“[w]hen she tried her best to complete projects successfully,

she was often prevented from doing so because she was never

given clear instructions or specific guidance as to what was

expected of her.”       J.A. 1817.         Noma Carter also testified, “I

don’t think” Works “received adequate training.”                      Id. at 1458.

             To further investigate this claim, Works’s attorney

explains    that   he   would     like    to     ascertain       the    instructions

provided to Works for each of the projects the SSA claims she

failed     to    complete;      correspondence           or     the     details      of

conversations regarding Works’s performance on those projects;

and the final version of any projects assigned to Works, as well

as drafts of her work on those projects.                 We find these requests

to be essential to Works’s claim.

             Likewise, as to whether the circumstances of Works’s

discharge       raise     a     reasonable         inference           of   unlawful

discrimination,     the       record     needs    more        development    through

relevant discovery, as stressed in Works’s 56(d) request and the

Affidavit.      Notably, Johnson-Bey -- one of Works’s supervisors

who approved her leave time, assigned projects to her, oversaw

those projects, and ultimately participated in the decision to

uphold her termination -- was never deposed and did not testify




                                         22
at the administrative hearing. 11                His testimony is crucial on

the issue of Works’s job performance and her termination.                       Also

relevant to this inquiry is the testimony of SSA managers Kathy

Fox   and   Denise    Kendall,      who    were    allegedly   present     at   the

Stewart-Stevens Meeting.           These individuals also did not testify

at the administrative hearing and were not deposed.

            On this point, the SSA argues “the only perspective

that is legally relevant is that of the Plaintiff’s supervisors,

Warner and Johnson-Bey,” and the court should not sit as a

“‘super-personnel      department’”        that     second-guesses   management

decisions.     Appellee’s Br. 22-23 (citing King, 328 F.3d at 149;

quoting Anderson v. Westinghouse Savannah River Co., 406 F.3d

248, 272 (4th Cir. 2005)).                The SSA also cites King for the

proposition     that       “the    alleged        opinions    of   [plaintiff’s]

coworkers as to the quality of [plaintiff’s] work are close to

irrelevant.”         329    F.3d    at     149    (internal    quotation    marks

omitted).


      11
        The parties submit that because Johnson-Bey had retired
from the SSA at the time of the administrative hearing, he was
not subject to EEOC’s subpoena power.           Thus, the only
opportunity Works had to cross-examine Johnson-Bey was at her
unemployment insurance appeal hearing, during which she was not
represented by an attorney.     There, the focus was on Works’s
unemployment benefits and, specifically, whether Works had
engaged in misconduct disqualifying her from receipt of
unemployment   benefits.      And,   the  cross-examination was
necessarily limited by the scope of direct examination.



                                          23
             These admonishments do not apply given that here, the

SSA has admitted, “Warner solicited feedback from coworkers who

worked with [Works] and she was informed that [Works’s] work

performance       was    not    acceptable          and       that    [Works]    had       trouble

completing virtually every assignment . . . given her.”                                    J.A. 32

(internal     quotation             marks    omitted).                Therefore,           Warner’s

perception was undoubtedly based on the opinions and perceptions

of Works’s coworkers, which would make deposing those coworkers

all    the   more       crucial.            Furthermore,            because     the    SSA      has

acknowledged        that        Johnson-Bey’s             perspective           is         “legally

relevant,” Works should be able to depose him.                                Appellee’s Br.

22.

                                              2.

                               The Accommodation Claim

             In    order       to    prevail     on       a    reasonable       accommodation

claim under the Rehabilitation Act, Works would have to prove

(1) she was an individual with a disability in the name of the

ADA;   (2)   the        SSA    had    notice        of    her        disability;       (3)      with

reasonable    accommodation,             Works       could         perform    the      essential

functions of the position; and (4) the SSA refused to make such

accommodation.          See Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th

Cir.    2001).          See    also     34     C.F.R.          §    104.12(a);        45     C.F.R.

§ 84.12(a) (“A recipient [of federal financial assistance] shall

make   reasonable        accommodation          to       the       known   physical         .   .   .

                                               24
limitations of an otherwise qualified handicapped applicant or

employee     unless    the      recipient     can   demonstrate      that     the

accommodation would impose an undue hardship on the operation of

its     program[.]”)       (internal   quotation    marks   and     alterations

omitted)).

            On this claim, the only accommodation Works sought was

medical leave to deal with her recurring seizures.                   As stated

above, there is evidence yet to be discovered regarding whether

Works could perform the essential functions of the position,

even    considering    her    approved    leave.     This   issue    should    be

fleshed out with testimony from those individuals whom Stewart-

Stevens said participated in the Stewart-Stevens Meeting and who

were not deposed at the administrative or district court level –

i.e.,    Warner,    Johnson-Bey,       Leidig,   Kendall,   Curry,    Fox,    and

Branch-McCoy.       Indeed, the Affidavit requests evidence from “any

. . . agency Employee Relations staff who were involved in

drafting or have knowledge regarding the Termination of Career

Conditional Appointment issued to Ms. Works on July 25, 2003.”

J.A. 1873.       Works’s project managers could also speak to their

perceptions of her performance at the time she was taking large

amounts     of     leave     related     to   her   disability.         Medical

documentation from the Nurse’s Suite –- also requested in the

Affidavit -– could likewise shed light on if and how Works’s

seizure disorder affected her work performance.

                                         25
                                          3.

                           The Retaliation Claim

            In     order    to     prevail        on     a     Rehabilitation       Act

retaliation      claim,    Works       must     prove    (1)   she   engaged     in   a

protected     activity;    (2)     the    SSA     took    an   adverse    employment

action against her; and (3) a causal connection existed between

the protected activity and the adverse action.                       Hooven-Lewis,

249 F.3d at 272-74.            If the SSA proffers a legitimate, non-

retaliatory reason for the decision, then Works must rebut the

reason as pretextual.          See Brockman v. Snow, 217 F. App’x 201,

207, 208 n.6 (4th Cir. 2007) (Rehabilitation Act); Yashenko v.

Harrah’s N.C. Casino Co., 446 F.3d 541, 551 (4th Cir. 2006)

(Title VII) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 800-06 (1973)).

            Again, discovery could aid Works on this claim.                        What

is most pertinent to this analysis is the termination notice

given to Works on July 25, 2003.                 That notice provided only two

reasons for termination: (1) failure to complete assignments as

expected, which was “largely . . . attributed to your excessive

amount   of      time   that     you     have     been    seen    away    from     your

workstation,      socializing      with       others,    aimlessly       walking    the

halls and spending an inordinate amount of time on the telephone




                                          26
for   personal    reasons”;      and    (2)    being   absent    from    work    on

unscheduled leave. 12     J.A. 2003.

           Further     discovery       could   help    Works    to   develop    her

theory of pretext.        To demonstrate pretext, a plaintiff must

provide the court with admissible evidence that a defendant’s

“explanation is unworthy of credence or by offering other forms

of circumstantial evidence sufficiently probative of [illegal]

discrimination.”       Mereish v. Walker, 359 F.3d 330, 336 (4th Cir.

2004) (internal quotation marks omitted); see also EEOC v. Sears

Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (“An employer’s

changing rationale for making an adverse employment decision can

be evidence of pretext.” (internal quotation marks omitted)).

First, Warner explicitly stated, “[t]he sole determination to

fire [Works] was based on performance,” J.A. 1303, despite the

different reasons set forth in the termination notice, such as

socializing      and   talking    on    the    phone. 13       Other    potential


      12
        At oral argument, the SSA’s counsel stated that the
banker’s box incident itself could be grounds for dismissal.
However, management did not mention this incident in its
termination notice.
      13
        Even if these were reasons for her termination, there is
disputed evidence regarding the time Works spent socializing and
on personal phone calls, something that could also be developed
with further discovery.    For example, Warner testified at the
administrative   hearing,  “[Trevette]  [H]ord,   Yvonne  Curry,
Phyllis Branch, No[ma] Carter, [and] Bill Johnson-Bey . . . all
told me that [Works] was on the phone and having a personal
conversation.”   J.A. 1116.   However, one of these individuals
(Continued)
                                        27
evidence      could       support       the        pretext    argument,         including

information     about      Noma    Carter’s         exclusion    from     the       Stewart-

Stevens Meeting and the idea that the SSA terminated Works for

taking leave, while nonetheless admitting, “all of [Works’s]

leave requests were granted by the [SSA].”                          Appellee’s Br. 32

n.3.

                                             D.

              Finally, we reject SSA’s argument that because Works

had a chance to conduct discovery at the administrative level,

she is somehow barred from doing so in federal court.                           Amirmokri

v. Abraham, 266 F. App’x 274 (4th Cir. 2008), the case cited by

the SSA, is inapposite.            In that case, “the central participants

were    all   deposed.”           Id.   at     282    (internal      quotation         marks

omitted).       Here,      as     mentioned        supra,    many    of       the    crucial

decision-makers were not deposed.                    Moreover, the Supreme Court

has    recognized     a   federal       employee’s       right      to    a    trial   anew

following an adverse administrative decision.                         See Chandler v.

Roudebush, 425 U.S. 840, 848 (1976) (holding, in the Title VII

context, “Congress intended to accord federal employees the same



has declared, “[Works] did not engage in extended conversations
on the telephone. All employees are allowed to make and receive
telephone calls, and Ms. Works never abused the privilege
bestowed upon us.” Id. at 1976 (Hord affidavit). Furthermore,
Carter claimed Works “did not socialize at the workplace any
more than other employees.” Id. at 1978 (Carter affidavit).



                                              28
right to a trial de novo [following administrative proceedings]

as is enjoyed by private-sector employees[.]”); 14 Massingill v.

Nicholson, 496 F.3d 382, 384 (5th Cir. 2007) (“Once a federal-

sector employee exhausts her administrative remedies, she can

file two types of civil actions: a suit to enforce the final

administrative disposition, in which the court examines only

whether the agency has complied with the disposition, or de novo

review     of     the    disposition.”           (emphasis     added)    (footnote

omitted)).        See also Boandl v. Geithner, 752 F. Supp. 2d 540,

557   (E.D.     Pa.   2010)     (“While     we   are   entitled   to    review   the

administrative        record,    we   are    also   entitled    to   consider    new

evidence presented by the parties, and are not bound in any way

by the determinations made by the [administrative review boards]

below.” (alteration in original)). 15

              Further, while we are cognizant that parties who are

“dilatory in pursuing discovery” should not find solace in Rule

56(d), Harrods, 302 F.3d at 246, we have been presented with no

      14
       Although Chandler addressed Title VII, the Rehabilitation
Act and the ADA share “standards used to determine whether” a
violation has occurred, 29 U.S.C. § 794(d), and the ADA, in
turn, follows the “powers, remedies and procedures” set forth in
Title VII, 42 U.S.C. § 12117(a). See also Spencer v. Ashcroft,
147 F. App’x 373, 375 (4th Cir. 2005).
      15
        This court has also held in an unpublished opinion,
“[T]he existence of an administrative investigation and record”
does not “automatically preclude[] the need for discovery.”
Radi v. Sebelius, 434 F. App’x 177, 179 (4th Cir. 2011).



                                            29
evidence tending to show that Works was dilatory in this manner,

and the district court certainly made no such finding in its

implicit denial of Works’s request for discovery.

                               IV.

          For the foregoing reasons, the district court’s orders

granting summary judgment to the SSA and denying Works’s motion

for reconsideration are vacated, and this matter is remanded for

the district court to grant Works’s request for discovery.



                                             VACATED AND REMANDED




                               30
