                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-2375


JOHN VANNOY,

                Plaintiff - Appellant,

           v.

THE FEDERAL RESERVE BANK OF RICHMOND,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:13-cv-00797-JAG)


Argued:   March 24, 2016                  Decided:   June 28, 2016


Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Judge Wynn and
Judge Schroeder joined.


ARGUED: Mary Ann Kelly, THE LAW OFFICES OF MARY ANN KELLY,
Fairfax, Virginia, for Appellant. David E. Nagle, JACKSON LEWIS
PC, Richmond, Virginia, for Appellee.      ON BRIEF: Crystal L.
Tyler, JACKSON LEWIS PC, Richmond, Virginia, for Appellee.
AGEE, Circuit Judge:

      John Vannoy sued his former employer, the Federal Reserve

Bank of Richmond (“FRBR”), for interference and retaliation in

violation      of    the    Family    and     Medical         Leave     Act    (“FMLA”),      29

U.S.C.    §    2601,       et   seq.,      and     failure         to    accommodate          and

discriminatory           discharge    in     violation        of   the    Americans          with

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

district court granted summary judgment in FRBR’s favor as to

all of the claims.

      For the reasons discussed below, we affirm the district

court’s judgment as to the FMLA retaliation claim and the ADA

claims.       However, because genuine issues of material fact exist

as   to   whether        FRBR   interfered        with    Vannoy’s        FMLA      rights     by

providing      him       defective    notice       that       omitted         his    right    to

reinstatement at the conclusion of the medical leave term, we

hold that summary judgment as to that claim was not warranted.

Accordingly,        we     vacate    that     part       of     the     district       court’s

judgment and remand for further proceedings as to Vannoy’s FMLA

interference claim.



                    I.     Factual and Procedural Background 1


      1Reviewing de novo the district court’s grant of summary
judgment to FRBR, we “view the facts and all justifiable
inferences arising therefrom in the light most favorable to”
(Continued)
                                              2
     Vannoy worked for FRBR from 1994 until his termination on

December 21, 2010, at which time he held the position of Project

Construction Manager / Technical Services Director within FRBR’s

Facilities    Management      Department.         By   the     summer    of    2010,

Vannoy’s     supervisors,      Robert     Minteer      and    Mattison        Harris,

noticed Vannoy was having problems with his work and attendance.

In July 2010, Harris reported his concern that Vannoy may be

depressed to FRBR’s Medical Director, Dr. Victor Brugh.

     Dr.     Brugh,     who    had      treated     Vannoy      for     depression

previously, was aware of Vannoy’s history of depression “going

way back,” and that Vannoy had taken antidepressant medications

“for a long time.”      J.A. 419-20. 2       As the Medical Director of the

Health Services Department, Dr. Brugh was responsible for core

aspects of FRBR’s FMLA and ADA compliance, including: evaluating

and treating employees; overseeing administration of short term

disability     and    ADA     benefits;      working    closely       with     human

resources on health and disability related benefits; overseeing

and reviewing applications for FMLA leave; and working with FRBR

departments    in     connection     with    employee        performance       issues

potentially related to health problems.                  The record does not



Vannoy, the nonmoving party. Libertarian Party of Va. v. Judd,
718 F.3d 308, 312 (4th Cir. 2013).      This recitation of facts
conforms to that standard.
     2 This opinion omits internal marks, alterations, citations,

emphasis, or footnotes from quotations unless otherwise noted.


                                         3
reflect that Dr. Brugh ever spoke with Vannoy about his rights

and responsibilities under the FMLA.

       On September 23, 2010, Vannoy saw Mimi Kline, a licensed

professional          counselor,       who        diagnosed       him     with      “major

depression”          and   noted     his    need     for    “an    in-patient      30-day

program.”       J.A. 169.

       Beginning on October 22 and lasting through November 15,

Vannoy    had    several      unscheduled         absences    from      work,    which    he

cleared    informally         with    his    supervisors      by     text    message      or

email.    The record does not indicate whether these absences were

to seek medical treatment.                 However, the record does show that

Vannoy was admitted to St. Mary’s Hospital on November 10 for

psychiatric treatment.             His family informed Harris and Dr. Brugh

that Vannoy was in the hospital, and Dr. Brugh spoke directly

with   Vannoy        during   his     hospital      stay.         Vannoy’s      physicians

recommended that he enter a 30-day rehabilitation program for

treatment       of    depression      and     alcohol      dependency,       but   Vannoy

refused, expressing concern that taking additional time off from

work would result in termination.                     Vannoy was discharged from

the hospital on November 13.

       Around    that      time,     Vannoy       submitted   his       application      for

short term disability, which also functioned as a request for

FMLA leave.          To that application, Vannoy attached a physician’s

statement from his primary care doctor taking him out of work

                                              4
from November 10 to December 10.               Based on these documents, FRBR

determined and notified Vannoy that he was eligible for leave

under the FMLA through December 10.

     The parties’ accounts diverge as to whether Vannoy received

sufficient     individualized          notice     of   his    FMLA     rights      and

responsibilities as required by the Act.                  FRBR represents that

it sent Vannoy the applicable notice document on November 16,

but Vannoy asserts that he did not receive it.                       In any event,

the notice FRBR claims to have sent omitted reference to job

protection rights, the precise information Vannoy contends he

needed   to    answer     his    concerns       that   continued     absences      for

treatment     of   his    depression     and     alcoholism    would    result     in

termination.

     Fearful       of   losing   his    job,    Vannoy    reported     to   work    on

November 15 without a doctor’s note and well before the end of

his approved FMLA leave period.                  FRBR sent Vannoy home with

instructions that he could not return to work until he obtained

a   release    from      his    physician.        Shortly     thereafter     Vannoy

provided FRBR a doctor’s note, allowing him to return to “full

work duty” as of November 15.                 J.A. 203.      Vannoy returned to

work on November 16.

     On November 18, Vannoy arranged a meeting with Minteer and

Harris to follow up about his recent hospitalization and ongoing

medical issues.          Apparently, the FMLA was not discussed during

                                          5
this meeting, though Vannoy states he was “reassured that [his]

job    was   not    in   jeopardy.”         J.A.   118.        Vannoy    contends   he

reiterated to his supervisors that he “wanted . . . to work with

them and to work with the bank to keep [his] job.”                      Id.

       On    November    30,   FRBR    sent      Vannoy   on    a     three-day    work

assignment in Baltimore.              Vannoy drove a company vehicle and

stayed in a hotel for that period at FRBR’s expense, but he did

not report to work on the project.                  The record provides only a

hazy   account      of   Vannoy’s     purported     reason      for    the    three-day

absence.      Nonetheless, when Vannoy returned to FRBR’s Richmond

office, he was placed on administrative leave pending a decision

about his failure to communicate the unscheduled absence from

work while in Baltimore.            On December 16, Vannoy was placed on a

performance        improvement      plan,       which   contained        an   employee

portion that Vannoy was to complete by December 20.

       On December 20, Vannoy informed his supervisors that he

would not be able to report to work that day.                         Upon his return

to work the following day, Vannoy received an email from Harris

instructing him to complete and submit the employee portion of

the performance improvement plan that day.                     Contending that he

was unable to complete the performance improvement plan, Vannoy

left work without authorization and went home.                        FRBR terminated

Vannoy’s employment effective that day in a letter citing the

failure to properly communicate unscheduled time off from work

                                            6
and insubordinate behavior in leaving work despite instructions

to complete the performance improvement plan.

     After    his     termination    and      following     exhaustion      of   his

administrative remedies, Vannoy filed a complaint in the United

States   District     Court   for    the      Eastern     District   of   Virginia

alleging FRBR violated his rights under the FMLA and the ADA.

FRBR moved for summary judgment under Rule 56 of the Federal

Rules of Civil Procedure.            The district court granted FRBR’s

summary judgment motion as to all claims, concluding that Vannoy

failed to give sufficient notice of his need for a medical leave

of absence and he was terminated for misconduct related to the

Baltimore trip.

     Vannoy    timely    appeals     from      the   district     court’s    order

granting    summary    judgment     to   FRBR.       We   have   jurisdiction     to

review the district court’s final order under 28 U.S.C. § 1291.



                               II.       Analysis

     We review a district court’s grant of summary judgment de

novo, applying the same standard as the district court.                     Halpern

v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir.

2012).     Summary judgment is appropriate if “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); see also

Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014).                            “A

                                          7
dispute is genuine if a reasonable jury could return a verdict

for the nonmoving party.”             Libertarian Party of Va., 718 F.3d at

313.    “A fact is material if it might affect the outcome of the

suit under the governing law.”                Id.    In addition to construing

the evidence in the light most favorable to Vannoy, the non-

movant, we also draw all reasonable inferences in his favor.

See Halpern, 669 F.3d at 460.



                           A.     FMLA Interference

       Vannoy     argues       that     FRBR        failed     to    provide   him

individualized notice of his job protection rights as required

by the FMLA.       This omission, Vannoy posits, caused prejudice to

him as it affected his ability to take the medical leave he

claims to have needed.          Vannoy also states, without elaboration,

that he did not receive the notice from FRBR that FRBR says it

sent him.        FRBR represents that it sent Vannoy individualized

notice by email on November 16, 2010 and, in any event, it

granted Vannoy’s medical leave request and provided notice that

he had 480 hours of FMLA leave available.

       The FMLA entitles eligible employees to take twelve weeks

of leave during any twelve-month period for a “serious health

condition       that   makes    the     employee      unable    to   perform   the

functions” of his job.           29 U.S.C. § 2612(a)(1)(D).              Following

this leave period, an employee has the right to reinstatement to

                                          8
his or her original position or an equivalent post.                                    Id. §

2614(a)(1).            It is unlawful under the FMLA for an employer to

interfere        with    an   employee’s    exercise    of     or       the    attempt       to

exercise any right under the statute.                Id. § 2615(a)(1).

      The       FMLA    requires    that   employers    provide         an     individual,

written notice to affected employees that an absence qualifies

under the FMLA.           See 29 C.F.R. § 825.300. 3           There are two types

of individualized notice that the employer must give an employee

who       may     be     entitled     to    FMLA     leave:         a     “rights        and

responsibilities notice,” id. § 825.300(c); and a “designation

notice,” id. § 825.300(d).             At issue in this case is whether the

rights      and    responsibilities         notice     from    FRBR           was    legally

sufficient.            And if a notice violation occurred, the “FMLA’s

comprehensive           remedial    mechanism”     grants     no    relief          absent    a

showing     that       the    violation    prejudiced    Vannoy.              Ragsdale       v.

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).                                 Thus, if

FRBR violated the FMLA’s notice requirements, and Vannoy can

show prejudice deriving from that violation, he has stated a

claim for interference.




      3Unless otherwise indicated, all citations to the Code of
Federal Regulations are to the version in effect at the time the
described events took place.


                                            9
                                              1.

      In       the     FMLA        rights         and      responsibilities              notice,

“[e]mployers shall provide written notice detailing the specific

obligations of the employee and explaining any consequences of

failing to meet these obligations.”                       29 C.F.R. § 825.300(c)(1).

“If the leave has already begun, the notice shall be mailed to

the   employee’s       address       of    record.”            Id.      Such     notice    “must

include,”       among        other        things,       the      employee’s        right       to

“restoration to the same or an equivalent job upon return from

FMLA leave.”          Id. § 825.300(c)(1)(vi).                  The Department of Labor

provides a prototype notice of rights and responsibilities for

employers to use to ensure compliance.                         Id. § 825.300(c)(6).

      The      purpose   of    the    employer          notice        requirements       “is   to

ensure that employers allow their employees to make informed

decisions about leave.”              Conoshenti v. Pub. Serv. Elec. and Gas

Co., 364 F.3d 135, 144 (3d Cir. 2004).                         That purpose is thwarted

when “the employee has not received the statutory benefit of

taking      necessary        leave        with      the        reassurance        that     h[is]

employment,      under       proscribed       conditions,            will   be   waiting       for

h[im] when []he is able to return to work.”                              Id.     Thus, “[a]ny

violations       of    the     Act    or     of     these       regulations        constitute

interfering      with”       the   exercise        of     an    employee’s       rights.       29

C.F.R.     §    825.220(b).          An     FMLA     notice          violation    can     be   an

actionable interference claim for which an employee may recover,

                                              10
so long as he makes a showing of prejudice flowing from the

violation.       Ragsdale,        535    U.S.       at   89   (holding   employee       must

“ha[ve] been prejudiced by the violation” to obtain relief).

     In   the    instant        case,     the       notice     FRBR   purportedly       sent

failed to inform Vannoy of his right to job restoration at the

conclusion      of       his    medical        leave     term. 4      Under      the    FMLA

regulations,         a    statement       of     the     employee’s      right     to    job

reinstatement            must     be      included            in   the     rights        and

responsibilities notice.               See 29 C.F.R. § 825.300(c)(1)(vi).

     4 Vannoy asserts in a single sentence in his opening brief
that he never received the FMLA rights and responsibilities
notice FRBR purportedly sent, and that he first saw it in
discovery in this litigation.   While it is unclear whether he
presented this contention below, the district court did not
address it in its opinion. A plaintiff’s assertion that he did
not receive notice that his leave was designated as FMLA-
qualifying could suffice in some circumstances to create a
genuine issue of material fact as to whether an employer
interfered with his rights under the FMLA.        See Lupyan v.
Corinthian Colleges, Inc., 761 F.3d 314, 322-23 (3d Cir. 2014)
(engaging in a lengthy discussion of the “mailbox rule” and
concluding the plaintiff’s positive denial of receipt of FMLA
notice sufficed to create an issue of fact for the jury); but
see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 452-53 (4th
Cir. 2007) (recognizing a presumption that an addressee receives
letters of notice mailed to him in the bankruptcy context). We
need not resolve this undeveloped argument, which the district
court did not address in the first instance.           The FMLA
interference claim is resolved here for summary judgment
purposes as the notice FRBR claims to have sent raises genuine
issues of material fact as to prejudice.   See Walker v. Prince
George’s Cty., 575 F.3d 426, 429 n.* (4th Cir. 2009) (“Judges
are not like pigs, hunting for truffles buried in briefs.”).
Nevertheless, the district court may consider Vannoy’s claim
that he did not receive the notice document from FRBR in the
first instance upon remand to the extent it is determined that
Vannoy has properly raised it.


                                               11
       FRBR    points    to    no    evidence    in     the       record    that       Vannoy

received the required job reinstatement information.                                  It does

not contest that the only notice document in the record fails to

show notice of Vannoy’s job restoration rights.                            Therefore, we

conclude that Vannoy established as fact, for purposes of FRBR’s

summary judgment motion, that FRBR’s notice did not comply with

the regulatory requirement of 29 C.F.R. § 825.300(c)(vi).



                                          2.

       Our inquiry, however, does not end with the determination

that a violation of the FMLA notice provisions occurred.                                  The

FMLA “provides no relief unless the employee has been prejudiced

by     the    violation.”           Ragsdale,    535       U.S.     at     89.         Vannoy

accordingly      must    establish      that    he     was    prejudiced         by    FRBR’s

failure to provide notice of his right to job restoration.

       Prejudice       may    be    gleaned     from    evidence         that     had     the

plaintiff      received       the     required       (but     omitted)       information

regarding his FMLA rights, he would have structured his leave

differently.       Lupyan, 761 F.3d at 324; Downey v. Strain, 510

F.3d 534, 537 (5th Cir. 2007) (finding prejudice where evidence

showed employee “would have postponed her knee surgery to a time

when     it    would    not    have     caused       her     to     exceed       her     FMLA

allowance”); c.f. Dorsey v. Jacobson Holman, PLLC, 476 F. App’x

861, 862 (D.C. Cir. 2012) (concluding plaintiff could not show

                                          12
prejudice where she “never returned to work” and “provides no

record evidence whatsoever that she could have structured her

leave differently”).

     The record in this case contains sufficient evidence to

avoid summary judgment to FRBR that Vannoy – who returned to

work prior to the expiration of the medical leave he initially

requested – would have structured his leave differently had he

known that his job was protected.           Vannoy initially requested

medical   leave   from   November   10    to   December   10,   2010,     in

accordance with the physician’s note he provided FRBR.                  That

leave was approved.      However, Vannoy did not take the month-long

leave term that he requested.            Instead, he returned to work

early and FRBR told him he would be permitted to work only after

he provided a physician’s note verifying he could resume work.

Vannoy contends that had he known of his right to reinstatement

at the conclusion of leave, he would have taken the full 30-day

leave of absence set out in his initial FMLA application to

obtain the inpatient treatment he claims to have needed.                FRBR

contests this evidence and offered its own evidence.

     However, Vannoy’s testimony on this point is unequivocal:

     I think [a notice of job protection rights] would have
     made a huge difference because I wouldn’t have been so
     fearful of losing my job and I would have known I
     could have gotten help and that I had the support of
     the bank and that they wanted me to get well.    And I
     could have gone to treatment, I could have gotten


                                    13
     help.   And I could have come back and I could have
     continued to be an excellent employee.

J.A. 305.    When asked again whether knowing that his job would

be there when he returned for medical leave mattered, Vannoy

reiterated    that   it   “would   have     made    a   huge   difference.

Absolutely, I believe I would have” gone to treatment.                   J.A.

305-06.      The   supporting   testimony    from   Vannoy’s    family    is

consistent with his testimony that he would have taken the full

amount of his requested medical leave had he known his job was

protected.     Indeed, after his termination, Vannoy completed a

comprehensive inpatient treatment program.

     Assessment of the credibility of these statements, and any

countervailing evidence, rests squarely within the purview of

the trier of fact.        See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (noting credibility determinations should

not be made by the district court at summary judgment).           If, for

example, a jury accepts Vannoy’s evidence, it could conclude

that Vannoy demonstrated he was prejudiced by FRBR’s failure to

provide him with the requisite notice and, thus, FRBR interfered

with his rights under the FMLA.         See Lupyan, 761 F.3d at 323-24

(holding plaintiff could demonstrate prejudice even though she

had “received all of the leave she was entitled to under the

FMLA”).




                                   14
     For   these     reasons,    we   hold    that   summary    judgment     was

foreclosed because a genuine issue of material fact exists as to

whether    FRBR’s    failure     to   comply      with   the   FMLA’s     notice

requirements prejudiced Vannoy.            The district court thus erred

in   granting      summary     judgment      to   FRBR   on    Vannoy’s     FMLA

interference claim. 5


     5 Without addressing the contents of the deficient notice,
the district court reasoned that Vannoy’s FMLA interference
claim failed because FRBR approved his request for medical
leave. We disagree. The fact that FRBR approved Vannoy’s FMLA
leave does not automatically foreclose his interference claim.
This Court recognized that precept recently in Adams v. Anne
Arundel County Public Schools, 789 F.3d 422, 427 (4th Cir.
2015). An FMLA interference claim “permit[s] a court to inquire
into matters such as whether the employee would have exercised
his or her FMLA rights in the absence of the employer’s
actions.” Id. at 427. Although the plaintiff in Adams received
his full entitlement of FMLA leave, the Court proceeded to
ascertain whether his employer had nevertheless interfered with
his FMLA rights “in a variety of ways that stopped short of
actually denying him leave.”      Id.   Finding no evidence to
support the claim of interference in that record, the Court
affirmed the district court’s grant of summary judgment for the
employer.
     Vannoy presents a different case. Unlike the plaintiff in
Adams, Vannoy did not take his full FMLA leave entitlement, but
contends he would have taken additional medical leave had he
received the job reinstatement notice.    Vannoy’s unconditional
testimony is that he would have structured his leave differently
- that he would have taken an extended period of medical leave
so that he could go to inpatient treatment - had he known of his
right to reinstatement.    For summary judgment purposes, that
evidence suffices to create a genuine issue of material fact as
to whether FRBR interfered with Vannoy’s FMLA rights.        See
Ragsdale, 535 U.S. at 91 (“[The] purpose of [an interference
claim] is to permit a court to inquire into matters such as
whether the employee would have exercised his or her FMLA rights
in the absence of the employer’s actions.”); Lupyan, 761 F.3d at
323 (holding plaintiff, who was afforded her full entitlement of
(Continued)
                                      15
                             B.     FMLA Retaliation

        In addition to claiming FRBR interfered with his notice

rights under the FMLA, Vannoy contends that FRBR terminated him

in retaliation for taking FMLA-qualifying absences.                            He argues

that once FRBR became aware of the extent of his illness and his

ongoing need for intermittent FMLA leave, it fired him.                           Vannoy

posits that the six-week timeframe between his initial request

for medical leave and subsequent termination supports his view.

FRBR responds that Vannoy failed to demonstrate any causal link

between     his    protected      activity       and    later   termination.           In

addition, FRBR argues the six-week timeline does not evince a

causal nexus, but actually negates it.                    Moreover, FRBR contends

it had no notice that Vannoy continued to suffer from depression

and alcoholism because he gave vague and conflicting reasons for

his   absences.        And   finally,      FRBR        argues   it    has    offered    a

legitimate,       non-retaliatory     reason       for    any   adverse     employment

action against Vannoy, and there is no evidence of pretext.

      The      FMLA   provides      proscriptive          rights       “that     protect

employees      from   discrimination        or    retaliation         for   exercising

their substantive rights under the FMLA.”                       Dotson v. Pfizer,

Inc.,    558   F.3d   284,   294    (4th     Cir.      2009).        FMLA   retaliation



FMLA leave, could still show prejudice by demonstrating that
“had she been properly informed of her FMLA rights, she could
have structured her leave differently”).


                                           16
claims may rest on circumstantial evidence evaluated under the

burden-shifting framework set out in McDonnell Douglas Corp. v.

Green,     411     U.S.    792    (1973).         An    FMLA     plaintiff       claiming

retaliation       “must    first    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.”                            Yashenko v.

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

Once   the      plaintiff    proffers      evidence       establishing         his   prima

facie case, and the employer offers a non-retaliatory reason of

the    adverse      action,       the   plaintiff        “bears        the    burden      of

establishing        that    the    employer’s          proffered       explanation        is

pretext for FMLA retaliation.”              Id.

       We assume - without deciding - that Vannoy can establish a

prima facie case for FMLA retaliation.                        Nonetheless, he cannot

prevail because FRBR has proffered overwhelming evidence that it

terminated Vannoy because of his misconduct, about which there

are no material factual disputes, and the record contains no

evidence remotely suggestive of pretext.

       The FMLA does not prevent an employer from terminating an

employee     for    poor     performance,         misconduct,         or   insubordinate

behavior.        See Calhoun v. Dep’t. of Labor, 576 F.3d 201, 214

(4th     Cir.     2009)     (holding       failure       to     follow       supervisor’s

instructions       was     insubordinate         behavior      that    amounted      to    a

                                            17
legitimate,        non-retaliatory         reason       for    adverse           employment

action); Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972,

977 (8th Cir. 2005) (“The FMLA simply does not force an employer

to retain an employee on FMLA leave when the employer would not

have retained the employee had the employee not been on FMLA

leave.”).         FRBR’s    legitimate,        non-discriminatory           reasons         for

terminating        Vannoy    include     his    misconduct         in    Baltimore,         his

failure to communicate properly about unscheduled absences, and

his failure to complete the employee portion of the performance

improvement plan.           Vannoy does not dispute that the Baltimore

incident occurred, that he was absent without authorization from

work    numerous     times    in   2010,       and    that    he    failed       to   timely

complete his obligations under the performance improvement plan.

       Vannoy instead speculates that FRBR’s decision to terminate

him was pretextual, but he makes no evidentiary showing in that

regard.      “[A] plaintiff’s own assertions of discrimination in

and     of   themselves      are   insufficient          to    counter       substantial

evidence      of     legitimate        non-discriminatory               reasons       for     a

discharge.”         Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749

(4th Cir. 1999).            It is not our role to second-guess FRBR’s

legitimate,        non-discriminatory          bases    for        terminating        Vannoy

where     there     is   nothing    in     the       record    before       us     evincing

retaliatory animus.          See Feldman v. Law Enf’t Assocs. Corp., 752

F.3d 339, 348 (4th Cir. 2014) (explaining that we do not “sit as

                                           18
a kind of super-personnel department weighing the prudence of

employment decisions”).            To the contrary, the record supports

FRBR’s argument that it terminated Vannoy for the legitimate and

documented job performance failures previously noted.

       Vannoy’s      FMLA     retaliation         claim      therefore      fails. 6

Accordingly,        the   district       court    properly       granted    summary

judgment to FRBR as to this claim.



                                  C.     ADA Claims

       Vannoy also appeals from the district court’s decision that

he   had     no   valid   claim   that     FRBR   failed    to    accommodate    his

disabilities and discriminated against him in violation of the

ADA.       As with Vannoy’s FMLA retaliation claim, the ADA does not

require an employer to simply ignore an employee’s blatant and

persistent misconduct, even where that behavior is potentially

tied to a medical condition.             Jones v. Am. Postal Workers Union,

192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not

“require an employer to ignore such egregious misconduct by one

of   its    employees,    even    if    the    misconduct   was    caused   by   the

employee’s disability”);               Martinson v. Kinney Shoe Corp., 104

       6
       To the extent Vannoy contends that his misconduct should
be excused because it is related to the health condition for
which he required FMLA leave, his argument lacks merit. “While
absences for treatment of alcoholism are protected by the FMLA,
absences caused by the use of alcohol are not.” Scobey v. Nucor
Steel-Ark., 580 F.3d 781, 788 (8th Cir. 2009).


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F.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct—even misconduct

related   to    a    disability—is     not       itself    a   disability,      and    an

employer is free to fire an employee on that basis.”); see also

29 C.F.R. § 1630.16(b)(4) (“A covered entity . . . [m]ay hold an

employee who engages in the illegal use of drugs or who is an

alcoholic to the same qualification standards for employment or

job performance and behavior to which the entity holds its other

employees, even if any unsatisfactory performance or behavior is

related to the employee’s drug use or alcoholism.”).                           Vannoy’s

ADA discriminatory termination claim fails for the same reasons

that his FMLA retaliation claim lacked merit.

      Further, as to Vannoy’s ADA failure to accommodate claim,

the district court’s grant of summary judgment to FRBR was not

erroneous.          As   the    district        court   aptly    noted,       “[i]t    is

difficult      to   imagine     an   employer      trying      harder    to    help   an

employee to succeed.”           Vannoy v. Fed. Reserve Bank of Richmond,

No.   3:13-CV-797,       2014   WL   6473704,      at     *5   (E.D.    Va.   Nov.    18,

2014).    We therefore agree with the district court that even

taking the facts and all reasonable inferences in his favor,

Vannoy’s ADA claims cannot survive summary judgment. 7


      7Vannoy also appeals the district court’s denial of his
motion for a protective order in connection with subpoenas by
FRBR seeking various post-termination employment records. Based
on the record in this case, we conclude that the district court
did not abuse its discretion in denying the discovery motion.


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                            III. Conclusion

       For these reasons, we affirm the judgment of the district

court as to Vannoy’s FMLA retaliation claim and ADA claims.               We

vacate the grant of summary judgment as to Vannoy’s claim that

FRBR   interfered   with   his   FMLA    rights   by   failing   to   provide

sufficient notice and remand for further proceedings as to that

claim.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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