                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-1004



STACIE D. BROCKMAN,

                                             Plaintiff - Appellant,

           versus


JOHN SNOW, Secretary, United States Department
of the Treasury,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-04-
1823-8-RWT)


Argued:   November 30, 2006             Decided:     February 13, 2007


Before MOTZ and DUNCAN, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Motz and Judge Lee joined.


ARGUED: Nathaniel Baccus, III, Washington, D.C., for Appellant.
Ariana Wright Arnold, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

     Stacie D. Brockman (“Brockman”) appeals the district court’s

grant of summary judgment to the Internal Revenue Service (“IRS”)

on her discrimination and retaliation claims under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the

Rehabilitation Act of 1973, 29 U.S.C. § 790, et seq.                For the

reasons that follow, we affirm.



                                    I.

     As is required upon review of a grant of summary judgment, we

view all disputed facts in the light most favorable to Brockman and

draw all reasonable inferences in her favor.          See Tinsley v. First

Union Nat’l Bank, 155 F.3d 435, 438 (4th Cir. 1998).               In 2001,

Brockman was a program analyst in the IRS’s Equal Employment

Opportunity & Diversity (“EEOD”) office.         On November 14, 2001,

Brockman and her co-worker Deborah Lewis (“Lewis”) met with their

“second-level      supervisor,”    Rich   Morgante,     the   Director   of

Management and Finance, to discuss the allegedly discriminatory

work environment created by JoAnn Innis (“Innis”), then-director of

the EEOD.       Lewis eventually filed an EEO complaint against Innis

that identified Brockman as a supporting witness.           Lewis emailed a

copy of the complaint to her supervisor and copied Christina

Mollett (“Mollett”), a Senior Operations Advisor. Lewis eventually

accepted    a    settlement   agreement   disposing    of   her   complaint.

                                     2
Mollett did not handle the complaint itself or negotiate the

settlement agreement. She did, however, implement the terms of the

settlement.       To that end, Mollett met with Brockman, Lewis, and

another     employee,    Cynthia     Marks,    at    the     direction    of    her

supervisor, Morgante.1

     In January 2002, Innis was removed as EEOD Director and

replaced by Mollett as Acting Director.              One of Mollett’s primary

duties was to counsel IRS employees on reasonable accommodations.

The IRS policy on reasonable accommodations, with which Mollett was

familiar, states that an employee need not specifically mention the

words “reasonable accommodation” and that the request for the

accommodation need not be written. J.A. 353-55.

     Also    in    January   2002,   Brockman       became   pregnant     and   was

hospitalized for acute pregnancy complications, including bleeding

and threatened abortion. Her doctor gave her a medical certificate

endorsing her ability to work from home if she remained on bed rest

until further notice; there was no indication of how long the bed

rest would be necessary.           On January 28, 2002, Brockman called

Mollett   to   explain   the   doctor’s       instructions     and   to   request




     1
      Although Mollett testified that she never saw a copy of the
complaint, Lewis’s affidavit stated that Mollett requested the
meetings with the three employees to discuss its allegations.
Therefore, we must assume that Mollett had at least some knowledge
of the complaint and Brockman’s participation therein.

                                       3
permission to work from home.2       On February 5, 2002, Brockman faxed

her medical certificate and a note to Mollett again requesting

permission to work from home.

      The course of subsequent communications between Brockman and

Mollett is disputed.            Viewed in the light most favorable to

Brockman, she called Mollett almost daily about her request to work

from home.     Although Brockman relocated during this period, she

testified to leaving voicemail messages with both Mollett and

Mollett’s assistant with her new contact information as well as

instructions for bypassing the call-intercept feature of her phone.

Brockman denied receiving a faxed letter from Mollett requesting

more information about her medical condition and her proposal to

work from home, but she does not contest Mollett’s claim that the

fax was sent.       Brockman does acknowledge receiving a fax from

Mollett on February 25 denying her request.            As grounds for that

decision, Mollett noted Brockman’s failure to provide medical

documentation that Brockman could work during her prescribed bed

rest, the difficulties associated with communicating with Brockman

by   phone   and   fax,   and    security   concerns   in   having   customer

information at Brockman’s home.




      2
      Mollett claims, however, that Brockman only told her that she
was sick and did not request to work from home.       As this is a
motion for summary judgment, we accept Brockman’s version of the
discussion.

                                       4
       Brockman filed an EEO complaint on March 23, 2002 to protest

the denial of what she viewed as a reasonable accommodation for her

pregnancy-related disability. Prior to her scheduled administrative

hearing before the EEOC, however, she filed the instant suit

charging the IRS with discrimination and retaliation under Title

VII,   and    a     failure   to   accommodate   and   retaliation     under   the

Rehabilitation Act.           The district court, ruling from the bench,

granted the IRS’s motions for summary judgment on all of Brockman’s

claims.      Regarding Brockman’s Title VII claims, the court found

that Brockman failed to make out a prima facie case of disparate

treatment, and it found that her retaliation claim failed on

multiple grounds. The court found that Brockman had not engaged in

protected activity under Title VII, had not been subject to an

adverse employment action, and had failed to show a causal nexus

between      the    alleged   adverse    employment    action    and   protected

activity.          Brockman fared no better on her Rehabilitation Act

claims: the district court concluded that Brockman failed to show

a disability under the Act and that there was no retaliation in

response to her request to work from home.                      Brockman timely

appealed this order.




                                         5
                                 II.

                                 A.

     We turn first to Brockman’s claim that she was discriminated

against under Title VII.   This court reviews a grant of summary

judgment de novo.   Med. Waste Assocs. v. Mayor of Baltimore, 966

F.2d 148, 150 (4th Cir. 1992).

     We analyze a disparate treatment case under Title VII under

the framework of shifting burdens set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Hux v. City of

Newport News, 451 F.3d 311, 314-15 (4th Cir. 2006).       First, the

plaintiff must establish a prima facie case of discrimination.    To

make a prima facie case, the plaintiff must show that (1) she is a

member of a protected class; (2) she was qualified for the job and

performed it satisfactorily; (3) she suffered an adverse employment

action; and (4) she was treated differently than similarly situated

employees outside of the protected class.     Autry v. N.C. Dep’t. of

Human Res., 820 F.2d 1384, 1385 (4th Cir. 1987).    If the plaintiff

meets these four requirements, the burden then shifts to the

employer to demonstrate a legitimate non-discriminatory reason for

the adverse employment action.         Hux, 451 F.3d at 314. If the

employer does so, then the plaintiff must prove that this reason

was actually a pretext for discrimination. Id. at 315.

     Brockman’s disparate treatment claim fails because she cannot

show an adverse employment action.       The standard for an adverse


                                  6
employment action in a disparate treatment case is different than

in a retaliation case: in a discrimination case, our precedent

mandates that the plaintiff has the higher burden of showing an

“ultimate employment” action that affects “hiring, granting leave,

discharging, promoting, and compensating.”      Page v. Bolger, 645

F.2d 227, 233 (4th Cir. 1981).3   Although Brockman was not allowed

to work from home, she was not denied leave.   It is undisputed that

Mollett offered to approve sick leave, but Brockman did not want to

take time off.    A determination affecting Brockman’s ability to

work where she chooses is not the type of ultimate decision that

this court has required for a prima facie case of discrimination.

See id.   Neither are the other actions attributed to Mollett, such

as assigning different projects and failing to return phone calls.

See Munday v. Waste Management of N.A., Inc., 126 F.3d 239, 243

(4th Cir. 1997) (holding that giving an employee less preferable

work assignments, excluding her from meetings, or ignoring her is

not enough for an adverse employment action).    Finding no adverse

employment action, we affirm the district court’s grant of summary

judgment to the IRS on Brockman’s disparate treatment claim.




     3
      The Supreme Court has recently clarified that a different--
and less strenuous–standard is used to define adverse employment
actions in the retaliation context. See Burlington N. & Santa Fe
Rwy. v. White, 126 S. Ct. 2405, 2413 (2006)(explaining that the
retaliation provision was intended to protect employees from a
broader   array  of   employer  actions   than   the  substantive
discrimination provisions)(discussed in Part II.B).

                                  7
                                      B.

     We next consider Brockman’s claim that she was retaliated

against for engaging in protected activity under Title VII, again

under a de novo standard of review.

     A    retaliation   claim    under      Title   VII,   like   a   disparate

treatment    inquiry,   is    analyzed      under   the    McDonnell   Douglas

framework    set   forth     above.   See    411    U.S.   at   802-04.     The

requirements of the prima facie case of retaliation, however,

differ.     To make a prima facie case for retaliation under Title

VII, Brockman must show that she (1) engaged in protected activity;

(2) suffered an adverse employment action; and (3) there is a

causal nexus between the protected activity and the adverse action.

McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991).

     The district court found that Brockman had not engaged in

protected activity, as her only involvement in Lewis’s claim was

serving as a witness.        We disagree.      Under our precedent, it is

clear that acting as a witness in a Title VII claim is protected

activity.    Laughlin v. Metro. Washington Airports Auth., 149 F.3d

253, 259 (4th Cir. 1998) (“Activities that constitute participation

are . . . (1) making a charge; (2) testifying; (3) assisting; or

(4) participating in any manner in an investigation, proceeding, or

hearing under Title VII.”).       Although Brockman clears this hurdle,

however, she still must establish the other elements of the prima

facie case and show pretext for the IRS’s proffered reason for the


                                       8
adverse action. See Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d

541 (4th Cir. 2006).

      The district court also found that Brockman failed to show an

adverse employment action.            After the district court ruled in this

case, the Supreme Court clarified the requirement for an adverse

employment      action   in    the    retaliation      context.      “[T]he        anti-

retaliation provision, unlike the substantive provision, is not

limited    to   discriminatory        actions    that    affect     the   terms     and

conditions of employment.” White, 126 S. Ct. at 2412-13. The scope

of what constitutes an adverse employment action for discrimination

purposes is not infinite, however: “a plaintiff must show that a

reasonable      employee      would    have    found    the   challenged       action

materially adverse, which . . . means it well might have dissuaded

a   reasonable      worker    from    making    or     supporting    a    charge     of

discrimination.” Id. at 2415 (emphasis added) (internal quotations

omitted).

      In   White,    the     Court    found    that    reassignment       to   a   less

desirable job and a period of suspension without pay were material.

By that standard, many of Brockman’s claims--that Mollett failed to

respond to Brockman’s phone calls, assigned her difficult work, and

forced her to walk--do not approach materiality. See id.                           These

actions simply would not have dissuaded a reasonable employee from

making a discrimination charge. Nonetheless, White requires us to

separate significant from trivial harms.                See id.     We cannot say,


                                          9
however, that the denial of Brockman’s request to work from home

might not be a material harm.     Because the denial of such a request

might deter one from participating in protected activity, we

assume, without deciding, that it was an adverse employment action

and proceed with our analysis.

      Next, Brockman must show a causal nexus between the denial of

her request to work from home and her involvement with Lewis’s

complaint.     An employee need not prove causation itself at the

prima facie case stage: rather, a close temporal relationship

between the protected activity and the adverse action is sufficient

to show a causal nexus.    Yashenko, 446 F.3d at 551 (citing Williams

v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).          We have

not decided how close a temporal connection must exist for there to

be a causal nexus, but our precedent establishes that several

months is sufficiently proximate to satisfy the requirement. See

Cerberonics, 871 F.2d at 454, 457 (finding that the employee’s

filing of a discrimination complaint and being fired approximately

three months later was sufficiently close to show a causal nexus

for the purposes of a prima facie case); but see Tinsley, 155 F.3d

at 443 (finding that fourteen years is “far too long a period” to

satisfy the casual-nexus requirement). Here, Brockman’s request to

work from home was denied approximately three months after Mollett

became aware of her involvement with Lewis’s EEO complaint. Again,

we   will   assume   without   deciding   that   Brockman   satisfies   the


                                    10
requirement of a causal nexus and therefore makes a prima facie

case of retaliation.

     Ultimately,   however,      Brockman’s     retaliation    claim   fails

because she does not offer evidence sufficient to show that the

IRS’s legitimate nondiscriminatory reason for denying her request

to work from home was pretextual.          Mollett’s February 25 letter to

Brockman listed several factors on which she based her conclusion

that Brockman could not perform her job as well from home: (1) the

doctor’s   order   of   bed    rest   was    incompatible     with   Brockman

performing her work duties; (2) it was consistently difficult to

reach Brockman by either phone or fax; (3) customers complained

about service problems from Brockman; and (4) Brockman worked with

sensitive EEO complaint information that needed to be secured for

privacy purposes. See J.A. 399-400. Under our precedent, these are

legitimate,   nondiscriminatory       reasons    for   denying   Brockman’s

request which Brockman must rebut with evidence of pretext. See

Yashenko, 446 F.3d at 551.

     An employee cannot survive a motion for summary judgment in a

retaliation case “by focusing on minor discrepancies that do not

cast doubt on the [employer’s proffered explanation’s] validity.”

Hux, 451 F.3d at 315.         Our precedent, and the Supreme Court’s,

explains that “the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported




                                      11
motion for summary judgment.” Id. at 317 (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

     Here, Brockman attempts to characterize Mollett’s failure to

respond more quickly to her request as evidence of pretext.4           This

is unpersuasive, as Mollett responded in a timely fashion and

requested that Brockman provide more information about her medical

condition and proposal to work from home.        Brockman never provided

any medical information to Mollett to indicate that her health

problems rose to the level of a disability.        That Brockman claims

not to have received the fax is irrelevant, as it is clear that

Mollett attempted to resolve the issue in a timely manner and was

stymied   by   communication   problems   with   Brockman.   It   is   not

contested that Mollett attempted to contact Brockman on multiple

occasions.5    We note that this very communication problem is one of

the reasons that Mollett found it would be inappropriate for

Brockman to work from home.         At oral argument, Brockman also

focused on the fact that Lewis was allowed to work from home as an

indicator of pretext; we find this, too, to be unpersuasive, as

Innis--not Mollett--granted Lewis’s request.          Brockman does not


     4
      Brockman  also   attempts   to  construe   certain   factual
inconsistencies in the record as evidence of pretext, such as a
dispute over who initiated Mollett’s initial meeting with Brockman
and Lewis, but these inconsistencies are peripheral and are not
sufficiently material to show pretext.
     5
      Brockman asserts that there were no problems with her phone
system, but she does not contest Mollett’s assertions that she
attempted to contact Brockman via phone and fax.

                                   12
raise an issue of material fact with regard to the existence of

pretext.

       We find that Brockman fails to rebut the IRS’s legitimate

reasons given for denying her request to work from home and

therefore does not have a Title VII retaliation claim. Thus, we

affirm the district judge’s grant of summary judgment to the IRS on

this issue.



                                    III.

       We turn next to Brockman’s claims under the Rehabilitation

Act.       Brockman argues that the IRS discriminated against her in

violation      of   the   Rehabilitation   Act   when   it   refused   her   a

reasonable accommodation for her disability, and she also argues

that the IRS retaliated against her for requesting a reasonable

accommodation.6       Again, we review the district court’s grant of

summary judgment to the IRS de novo.        Med. Waste Assocs., 966 F.2d

at 150.

       Our analysis under the Rehabilitation Act (“RA”), like Title

VII, follows the McDonnell Douglas framework of burden shifting.



       6
      We find that Brockman’s Rehabilitation Act retaliation claim
fails on the same grounds as does her Title VII retaliation claim.
Even if we assume, without deciding, that she can present a prima
facie case of retaliation, she does not present sufficient evidence
of pretext to raise a genuine issue of material fact that the IRS
retaliated against her for requesting a reasonable accommodation
for her alleged disability. See supra Part II.B. for our complete
analysis of the pretext issue.

                                     13
See Ennis v. Nat’l Assoc. of Bus. and Educ. Radio, Inc., 53 F.3d

55, 57 (4th Cir. 1995).    The RA is also interpreted using the law

applicable to the Americans with Disabilities Act.   Myers v. Hose,

50 F.3d 278, 281 (4th Cir. 1995).     To make a prima facie case of

disability discrimination, Brockman must prove that: (1) she has a

disability under the RA; (2) she is qualified for the employment in

question; and (3) she suffered an adverse employment action due to

discrimination on the basis of disability.     Doe v. Univ. of Md.

Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995).        The RA

defines an individual with a disability as a person who:

     (i)  has   a  physical   or   mental  impairment which
          substantially limits one or more of such person’s
          major life activities;
     (ii) has a record of such an impairment; or
     (iii)is regarded as having such an impairment.

Rehabilitation Act, 29 U.S.C. § 705(20)(B); Rehabilitation Act, 29

C.F.R. § 1614.203(a)(1).    Walking is a major life activity under

the RA. 29 C.F.R. § 1614.203(a)(3).        Duration, severity, and

permanent or long-term impact of the impairment are all factors

used in determining whether an individual is substantially limited

in a major life activity. 29 C.F.R. § 1630.2(I).       We have not

decided whether complications due to pregnancy can constitute a

disability under the RA and need not do so here.     If an employee

does not prove that she is disabled under the RA, she is not

entitled to any accommodation. Hooven-Lewis v. Caldera, 249 F.3d

259, 271 (4th Cir. 2001).


                                 14
     Even if we assume that pregnancy complications may constitute

a disability, Brockman’s evidence falls far short of showing that

she was substantially limited in a major life activity.                  The only

evidence Brockman proffers in this regard is her doctor’s note

stating that she should be on bed rest “until further notice,” and

the claim that the doctor orally instructed her not to walk long

distances.      Significantly,        Brockman’s    own       actions    directly

contradict her assertion that she was substantially limited in

walking, as she walked, stood, and performed other normal work

functions when she came back to the office of her own accord.                     It

is not enough that her ability to walk be limited--it must be

substantially limited. See 29 C.F.R. § 1630.2(j)(1).                     Brockman

offers no evidence of the duration of her impairment, nor of its

severity,7    both   factors   that    would   point     to   a   finding    of    a

substantial    limitation.      As    she   does   not    present       sufficient

evidence to show that she was substantially limited in a major life

activity, Brockman’s RA claim fails and we find that the district

court’s grant of summary judgment was proper on this issue.8


     7
      We note that unlike the situation in other types of
employment-related claims, it is not the IRS that controlled
evidence that would support a finding that Brockman was disabled:
any evidence to this effect is under Brockman’s exclusive control.
     8
      The district court approached the analysis of this issue
somewhat differently. It assumed, without deciding, that Brockman
established a prima facie case, but it concluded that allowing
Brockman to work from home would cause an undue hardship for the
IRS. We need not reach this step of the analysis as we find that
she fails to make a prima facie case under the RA.

                                       15
                               IV.

     For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the IRS on all of Brockman’s claims.

The judgment of the district court is

                                                        AFFIRMED.




                               16
