                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-2195


VICTORIA ANDERSON,

                Plaintiff - Appellant,

           v.

DISCOVERY COMMUNICATIONS, LLC; JANELL COLES; LISA WILLIAMS-
FAUNTROY; DOE DEFENDANTS 1 THROUGH 4,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:08-cv-02424-AW)


Argued:   January 30, 2013                 Decided:   April 5, 2013


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Elaine Lynette Fitch, KALIJARVI, CHUZI, NEWMAN & FITCH,
PC, Washington, D.C., for Appellant.       Mark David Harris,
PROSKAUER ROSE, LLP, New York, New York, for Appellees.      ON
BRIEF: George M. Chuzi, KALIJARVI, CHUZI, NEWMAN & FITCH, PC,
Washington, D.C., for Appellant. Amanda D. Haverstick, Julianne
M. Apostolopoulos, PROSKAUER ROSE, LLP, Newark, New Jersey, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Victoria       Anderson        appeals          from        the    district      court’s

judgment     granting       summary           judgment       to    her     former      employer

Discovery         Communications,             LLC,       (“Discovery”)           and      other

individual defendants on her claims brought under the Americans

with Disabilities Act (“ADA”), the Montgomery County, Maryland,

Human Rights Act (“MCHRA”), and the Family Medical Leave Act

(“FMLA”).         For     the    reasons       set    forth       below,    we   affirm    the

judgment of the district court.



              I.     Factual Background & Proceedings Below

      From    August       2004     to        January     2007,         Discovery      employed

Anderson     as    an   attorney         in    the    Programming,         Production,      and

Talent    Group     (“the        Group”)      of     Discovery’s         Legal   Department.

Defendant-Appellee Janell Coles was the Director of the Group,

and     Anderson’s        direct         supervisor;         Defendant-Appellee           Lisa

Williams-Fauntroy was Vice President of the Group, and Coles’

direct supervisor. 1             Although Anderson received praise for her

strong     technical,           legal,     and       drafting       skills,      her    annual

performance reviews repeatedly indicated needing improvement in

areas      such      as         “effectively          organizing,          planning,       and


      1
       For ease of reference, all of the Defendants (Appellees
here) will be referred to collectively as “Discovery.”



                                                 2
prioritizing work,” working on her demeanor and tone, and in

developing          her     interpersonal      skills      with     both    colleagues        and

clients.          (J.A. 659-60.)

       In         October     2006, 2    Anderson      was     in    California         for     a

conference when she became ill and visited a local doctor, who

advised her, inter alia, that she may have a sleep impairment.

Upon her return to Maryland, Anderson requested and was granted

FMLA leave from October 20 to November 15, during which time she

consulted with her personal physician, Dr. Collin D. Cullen, and

a   sleep         specialist,      Dr.    Andrew      P.   Tucker.          The    physicians

determined          that     Anderson’s    laboratory         and    sleep      test    results

were normal, and excluded sleep apnea as a diagnosis.                                      Since

Anderson reported that she was only sleeping between two and

four       hours     each     night,     the   physicians         concluded       she    likely

suffered          from    “fatigue,”     “sleep      deprivation,”         and    “insomnia.”

(J.A. 306-09.)              The physicians gave Anderson advice on falling

and staying asleep and a prescription for Ambien.

        In    late        November,     Anderson     returned       to    Dr.     Cullen,     and

based        on    Anderson’s      statements        indicating          that    her    overall

condition           was     improving,     Dr.       Cullen    recommended          that      she

“[r]eturn to full duty with hour restriction to 8 hours per

day.”        (J.A. 306, 308.)            In two follow-up appointments with Dr.

       2
           All dates are in 2006, unless otherwise noted.



                                                 3
Tucker      at   the    end     of   November    and   mid-December,      Dr.    Tucker

indicated that he placed “no restrictions” on Anderson’s ability

to work, and that he had no reason to believe that she was

“significantly impaired” by that point.                     (J.A. 327.)         At his

deposition, Dr. Tucker testified that as of December 19, there

was no basis for placing Anderson on disability “from a sleep

standpoint.”       (J.A. 325-26.)

       When she returned to work, Anderson asked her supervisors

to be allowed a maximum 8-hour work day.                         At their request,

Anderson submitted a proposal, but only committed to work in the

office between 11 a.m. and 4 p.m.                 Moreover, she stated that she

would not track her personal, break, or lunch time or account

for her specific workload unless other members of the Group were

also required to do so.                 Anderson’s supervisors reviewed the

proposal and denied her request, stating that the proposal would

not enable her to perform the responsibilities of her job, which

included a 40-hour minimum work week, presence in the office

during core business hours of 9 a.m. to 6 p.m. Monday through

Friday,      and       flexibility      to   work      outside    those     hours    as

international transactions required.

       On    January     3,     2007,   Williams-Fauntroy        informed    Anderson

that     Discovery        was     terminating     her    employment.            At   her

deposition, Anderson stated that Williams-Fauntroy told her that

her “performance was not at all a factor in her termination,”

                                             4
and that the “sole reason” for her termination was her failure

to update her time records.            (J.A. 157-58.)      Williams-Fauntroy

stated in her deposition that she informed Anderson that “she

was being terminated because [Discovery] determined that she is

untrustworthy and that she had not accurately represented her

time entries [documenting her work hours] as requested by her

manager.”   (J.A. 217.)         Williams-Fauntroy also recounted several

factors underlying that decision, many of which she had listed

in a bullet-point note she had prepared prior to meeting with

Anderson on January 3, but which she described in greater detail

during her deposition.          Those factors included Anderson’s long-

term “insubordination”; her refusal to accept a performance plan

schedule following her mid-year (2006) review; her “[c]ombative,

difficult, manipulating” nature, which had led to “difficulties”

with    clients     and     colleagues,     as   well    as    “skewing”   and

misrepresenting         prior     discussions     with        co-workers   and

supervisors;      and     her   “manipulating”   time    sheets    documenting

vacation and sick leave, coupled with her subsequent refusal to

correct them when confronted with evidence establishing that she

had inaccurately recorded her time.          (J.A. 220, 223-24.)

       Anderson filed a complaint in the United States District

Court for the District of Maryland, alleging claims of failure




                                        5
to accommodate and retaliation under the ADA and MCHRA, 3 and

retaliation      and     interference       of    rights     under    the    FMLA.

Following discovery, Discovery moved for summary judgment, which

the   district    court    granted.         The   district    court   held    that

Anderson was not an          “individual with a disability” under the

ADA and therefore could not establish a prima facie case of

failure to accommodate; that even if she could establish a prima

facie     case   of    retaliation,   Anderson      had    not   presented     any

evidence    indicating     Discovery’s      legitimate,      non-discriminatory

reasons for firing her were a pretext; that Anderson did not

have a “serious medical condition” entitling her to FMLA leave;

and that Anderson had not given Discovery adequate notice of her

need for FMLA leave.         Anderson v. Discovery Commc’ns, LLC, 814

F. Supp. 2d 562, 569-72 (D. Md. 2011).

      Anderson noted a timely appeal, and we have jurisdiction

under 28 U.S.C. § 1291.




      3
       Because Maryland has applied the MCHRA by looking to ADA
case law, it is appropriate to consider those claims together,
as the district court did. See Ridgely v. Montgomery Cnty., 883
A.2d 182, 193 (Md. Ct. App. 2005) (stating that the MCHRA and
ADA contain “almost identical” definitions of “disability” and
“qualified individual with a disability”).       Similarly, our
analysis of the ADA claims encompasses our analysis of
Anderson’s MCHRA claims.



                                        6
                        II.     Standard of Review

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

novo, applying the same standard used by the district court.

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

Summary judgment is appropriate when there is no genuine issue

of material fact, and the moving party is entitled to judgment

as a matter of law.      Id.     The facts must be viewed in the light

most favorable to the non-moving party, id., which we do here.



                              III.   ADA Claims

     The    ADA   prohibits    discrimination     in    employment   decisions

against “individual[s] on the basis of disability.”              42 U.S.C. §

12112(a).    A threshold issue is whether a plaintiff has adduced

evidence showing that she is such a person, i.e., that she is an

individual with a disability as defined by the statute.                    See

Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 (4th Cir.

2004) (stating that a plaintiff is first required “to produce

evidence that she is . . . disabled.”).                In relevant part, the

ADA defines a “disability” as “a physical or mental impairment

that substantially limits one or more major life activities of

such individual.” 4      42 U.S.C. § 12102(a)(A).            Thus, having a

     4
        The ADA lists three definitions of “disability,” but
Anderson relies only on this one.   See 42 U.S.C. § 12102(2)
(2007).


                                      7
“physical or mental impairment” is not sufficient on its own to

establish an ADA-cognizable disability, nor is showing that the

impairment affects “one or more major life activities.” 5                               An

individual must also show she is “substantially limit[ed]” as a

result of the impairment.                See Sutton v. United Airlines, Inc.,

527 U.S. 471, 489 (1999).

       Anderson contends that the record evidence shows a genuine

issue       of        material   fact     exists      as     to     whether     she    was

“substantially impaired” in her major life activity of sleeping.

This       is    so,    she   submits,     because     the    record     reflects       her

diagnosis of insomnia as a result of averaging less than four

hours of sleep at night, which is less than the average person.

In     addition,          Anderson      contends      that    the     district        court

improperly considered the effect her lack of sleep had on her

daytime productivity and work, thus holding her to a heightened

standard         of    showing   impairment      in   more    than    one     major    life

activity.         She further asserts that the district court failed to

view the evidence in the light most favorable to her. 6


       5
       Although the applicable version of the ADA does not
expressly delineate “sleeping” as a “major life activity,” every
court to address the issue, including this one, has concluded or
assumed that it is. See EEOC v. Sara Lee Corp., 237 F.3d 349,
352 (4th Cir. 2001); see also EEOC v. Chevron Phillips Chem.
Co., LP, 570 F.3d 606, 616 (5th Cir. 2009) (collecting cases).
       6
       Anderson also maintains that the district court erred in
refusing to consider her diagnosis of dysthymic disorder because
(Continued)
                                             8
      We have reviewed the record and conclude the district court

did not err in granting summary judgment on this claim.                   Cf.

Anderson, 814 F. Supp. 2d at 569-72.               Viewing the evidence in

the light most favorable to Anderson, the evidence simply does

not support the conclusion that she was “substantially impaired”

at   the   time    Discovery   terminated    her   employment.    Moreover,

considering       the   district   court’s   statements   in   context,   the

court did not hold Anderson to an improper standard.             Nor did it

misapply the standard for granting summary judgment.




she “was not seeking to have this considered as a separate
disability, but rather, submitted that her impairment of
dysthymic   disorder  impacted  the   major   life  activity  of
sleeping.” (Opening Br. 40.) The district court appropriately
declined to consider this diagnosis as part of Anderson’s claim
given that she relied on it for the first time in opposing
summary judgment. See Conley v. Gibson, 355 U.S. 41, 47 (1957)
(stating that a complaint must give “fair notice of what the
plaintiff’s claim is and the grounds upon which it rests”)
(emphasis added). Moreover, the analysis as to whether Anderson
was “substantially limited” as a result of impairment to her
ability to sleep would be the same regardless of the underlying
impairment creating her problems sleeping.      See 29 C.F.R. §
1630.2(j).
     On appeal, Anderson raises for the first time her diagnosis
of anxiety as a basis for an ADA claim.     Given her failure to
raise it to the district court, we need not address this claim
either. Williams v. Prof’l Transp. Inc., 294 F.3d 607, 614 (4th
Cir. 2002) (“[In this circuit,] issues raised for the first time
on appeal are generally not considered absent exceptional
circumstances.”).



                                       9
     Under the Supreme Court precedent applicable to Anderson’s

case, 7 the term “substantially” as used in the ADA, is “to be

interpreted    strictly      to   create     a    demanding    standard       for

qualifying    as   disabled.”       Toyota   Motor    Mfg.,    Ky.,    Inc.    v.

Williams, 534 U.S. 184, 197 (2002).              “[A]n individual must have

an impairment that prevents or severely restricts the individual

from doing activities that are of central importance to most

people’s   daily   lives.     The   impairment’s      impact   must    also    be

permanent or long term.”          Id. at 198.        As the Supreme Court

explained:

     It is insufficient for individuals attempting to prove
     disability status under this test to merely submit
     evidence of a medical diagnosis of an impairment.
     Instead, the ADA requires those claiming the Act’s
     protection . . . to prove a disability by offering
     evidence that the extent of the limitation [caused by
     their impairment] in terms of their own experience . .
     . is substantial.

Id. (internal quotation marks omitted); see also Sutton, 527

U.S. at 482 (“A ‘disability’ exists only where an impairment

‘substantially     limits’   a    major    life   activity,    not    where   it




     7
       In 2008, Congress amended the ADA considerably, broadening
the Supreme Court’s narrow reading of the statute.          These
amendments do not apply to Anderson’s case, however, because she
was terminated prior to their enactment.     See Reynolds v. Am.
Nat’l Red Cross, 701 F.3d 143, 151-52 (4th Cir. 2012) (joining
other circuits court of appeals in holding that the 2008 ADA
amendments do not apply retroactively).



                                     10
‘might,’    ‘could,’   or    ‘would’        be    substantially   limiting      if

mitigating measures were not taken.”).

     Applying these principles to Anderson’s case, the record

fails to show a genuine issue of material fact as to whether

Anderson suffered from a disability cognizable under the ADA.

Anderson’s own doctors recounted that during their appointments

with her in late November and mid-December, Anderson stated that

her condition had “improved since time off” and that despite

getting “much less sleep than what she had historically,” she

“awakes    feeling   fully   refreshed,”         was   “functioning    normally,”

and was not “feeling any functional impairment as a result” of

getting less sleep.      (J.A. 516, 315-17, 325, 329-30, 333.)                 In

addition, Anderson’s sleep test results were “normal” and she

slept   “more   than   seven    hours.”           (J.A.   325.)       Dr.   Tucker

specifically indicated that as of Anderson’s appointment with

him on December 19, there was no basis “from a sleep standpoint”

to place Anderson on disability because her functioning was not

significantly impaired as of late November.               (J.A. 325-26.)

     While Anderson is entitled to have the evidence viewed in

the light most favorable to her,

     only reasonable inferences from the evidence need be
     considered by the court . . . . Permissible inferences
     must   still  be   within   the range   of  reasonable
     probability, however, and it is the duty of the court
     to withdraw the case from the jury when the necessary
     inference is so tenuous that it merely rests upon
     speculation and conjecture.

                                       11
Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 818 (4th Cir.

1995).    As we previously recognized, “[m]any individuals fail to

receive a full night of sleep.”                EEOC v. Sara Lee Corp., 237

F.3d    349,   352   (4th    Cir.    2001)     (quoting       Ford    Motor    Co.   v.

McDavid, 259 F.2d 261, 266 (4th Cir. 1958)).                          Sleep patterns

vary between individuals and even during a person’s lifetime,

and on this record, Anderson simply failed to present evidence

creating a genuine issue of material fact as to whether she was

“substantially impaired” in December 2006 as a result of her

insomnia.      Cf. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606,

618 (5th Cir. 2009) (“In an ADA case, the relevant time for

assessing the existence of a [cognizable] disability is the time

of the adverse employment action.”).                  Accordingly, the district

court    did   not   err    in    concluding     that       Anderson    was    not   an

“individual with a disability” under the ADA.

       Anderson’s    ADA    retaliation       claim    is     based    on   the   ADA’s

prohibition     of   discrimination         “against    any    individual      because

such individual has opposed any act or practice made unlawful by

[the ADA] or because such individual made a charge” thereunder.

42 U.S.C. § 12203.           To survive summary judgment on her ADA

retaliation       claim,         Anderson     had      to      produce        evidence

demonstrating that (1) she engaged in conduct protected by the

ADA; (2) she suffered an adverse employment action subsequent to


                                        12
engaging in the protected conduct; and (3) a causal link exists

between the protected activity and the adverse action.                             Freilich

v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir.

2002).

       Anderson        sought     to    prove       causation      using    the     burden-

shifting framework established for Title VII cases in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).                          Anderson thus

bore the initial burden of establishing a prima facie case of

discrimination;          if     successful,         the   burden    then        shifted    to

Discovery to provide a legitimate, nondiscriminatory reason for

its action; thereafter, the burden returned to Anderson to show

by a preponderance of evidence that the proffered reason was a

pretext for discrimination or retaliation.                      Laber v. Harvey, 438

F.3d 404, 432 (4th Cir. 2006) (en banc).

       Anderson contends the district court erred in holding that

she had failed to set forth evidence from which a jury could

conclude that Discovery’s nondiscriminatory explanation for its

action   was   a       pretext.         She    asserts    Discovery        had    “shifting

justifications”         for     terminating         her   and   that       is    sufficient

reason to deny summary judgment.                    Specifically, she asserts that

at the time of her termination, Williams-Fauntroy confirmed that

the “sole” reason for the decision was her failure to amend her

time   entries,        but    that     since    litigation      commenced,        Discovery

manufactured       a     host     of    additional        reasons     to    support       its

                                               13
decision.          As such, she posits that Discovery’s questionable

credibility supports an inference of pretext.

       We    agree    with     the       district         court         that     even      assuming

Anderson      has    set    forth       a    prima       facie      case       of   retaliation,

Discovery     has    provided       a       legitimate,        nondiscriminatory              reason

for terminating her employment, and no genuine issue of material

fact   calls       that    reason       into      question         as   pretext.          Anderson

repeatedly         misrepresents            the     record         evidence         and    parrots

statements of law regarding pretext, but the record evidence

simply      does    not    support       her      contention.             From      the    time   of

Anderson’s         actual     discharge            through          litigation            Discovery

provided      specific      examples          of       that   behavior,          and      different

individuals characterized her conduct using slightly different

examples     or     terminology,         but      Discovery’s           explanation        for    its

decision has been consistent: Anderson’s untrustworthiness and

poor communication skills.

       Far from being the “sole” reason for her termination, the

accuracy of Anderson’s time sheets was the proverbial straw that

broke the camel’s back, i.e., the last in a line and immediate

precipitating factor in a long, documented history of Anderson’s

inability to communicate accurately and truthfully with her co-

workers.       This record diverges from cases where we have held

that   an    employer’s       changing            explanations          for     its     employment

decision     gave    rise    to     an      inference         of    pretext.           See,    e.g.,

                                                  14
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646

(4th Cir. 2002) (discussing how a shift both in the detail and

the    explanation      for    the       employer’s         decision         gave      them    “the

flavor of post-hoc rationalizations”); EEOC v. Sears Roebuck &

Co.,    243    F.3d    846,    853       (4th       Cir.     2001)       (stating       that     an

employer’s          inconsistent               explanations                 and        different

justifications        were    probative         of       pretext).          Anderson     “cannot

seek to expose [Discovery’s] rationale as pretextual by focusing

on     minor   discrepancies         that           do     not     cast      doubt       on     the

explanation’s validity[.]”                 Hux v. City of Newport News, 451

F.3d 311, 315 (4th Cir. 2006).                   In the absence of such evidence

of     pretext,     “[i]t     is    not     our      province          to    decide      whether

[Discovery’s]         reason       was     wise,           fair,     or       even      correct,

ultimately, so long as it truly was the reason for [Anderson’s]

termination.”         DeJarnette v. Corning, Inc., 133 F.3d 293, 299

(4th Cir. 1998) (quotation marks omitted).

       Discovery       articulated         a     legitimate,             non-discriminatory

reason for Anderson’s termination of employment, and the record

is    devoid   of     evidence     that     would         create     a    genuine       issue    of

material fact as to whether that explanation was mere pretext.

Consequently,         the    district      court          did    not      err     in    granting

Discovery summary judgment on Anderson’s ADA retaliation claim.




                                               15
                                      IV.   FMLA Claims

       Anderson      also    challenges        the      district     court’s   grant    of

summary      judgment       to    Discovery        on   her   FMLA    retaliation      and

interference claims.              Anderson alleged that Discovery violated

the FMLA by unlawfully interfering with her right to take a

reduced work schedule upon her return to work in November, and

that   her    subsequent         termination       constituted       retaliation    under

the FMLA.       Having reviewed the record, as well as the parties’

arguments on appeal, we conclude that the district court did not

err in granting summary judgment to Discovery. 8

       The FMLA allows certain employees to take a total of “12

work weeks of leave” during a twelve-month period for a “serious

health condition” that makes the employee “unable to perform the

functions of” her job.                29 U.S.C. § 2612(a)(1)(D).          “FMLA claims

arising      under   [a]     retaliation       theory      are     analogous   to   those

derived under Title VII and so are analyzed under the burden-

shifting      framework          of    McDonnell        Douglas[.]”       Yashenko     v.

Harrah’s NC Casino Co., 446 F.3d 541, 550-51 (4th Cir. 2006).


       8
       The district court concluded Anderson’s FMLA claims failed
because she did not have a “serious health condition” and had
not provided adequate notice to Discovery of her need for FMLA
leave.   We affirm on different grounds than relied on by the
district court. See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th
Cir. 1993) (“In reviewing the grant of summary judgment, we can
affirm on any legal ground supported by the record and are not
limited to the grounds relied on by the district court.”).



                                              16
Anderson’s FMLA retaliation claim thus fails for the same reason

her     ADA    retaliation        claim         failed:      the    absence      of    evidence

indicating that Discovery’s legitimate, nondiscriminatory reason

for terminating Anderson was pretext for unlawful behavior.                                    See

infra pp. 12-15.

      In order to establish a claim for violation of the FMLA,

including       interference          of   rights       thereunder,        Anderson      had    to

prove    not    only      the    fact      of    interference,        but     also     that    the

violation       prejudiced        her      in    some    way.      Ragsdale      v.   Wolverine

World    Wide,       Inc.,      535   U.S.      81,     89   (2002);       see   29    U.S.C.    §

2617(a)(1).           Such prejudice can be proven by showing that the

employee       lost       compensation          or    benefits       “by     reason     of     the

violation,” id. § 2617(a)(1)(A)(i)(I); sustains other monetary

losses        “as     a    direct       result        of     the     violation,”         id.     §

2617(a)(1)(A)(i)(II); or suffers some loss in employment status

remediable          through      “appropriate”           equitable         relief,     such     as

employment, reinstatement, or promotion, id. § 2617(a)(1)(B).

      Here,         the   only    injury        Anderson     alleged       as    a    result    of

Discovery’s alleged unlawful denial of her request for a reduced

work schedule was that she was not permitted to work a reduced

schedule.       She does not claim that she lost any compensation or

benefits, sustained other monetary loss, or suffered loss in

employment status as a result of the purported interference.

While Anderson sought $786,000 back pay and reinstatement, she

                                                 17
has failed to show that she is entitled to any of these amounts.

As discussed above, Anderson’s termination of employment was a

separate and unrelated event, and from the record it appears

that   Anderson    remained   employed   and   was   given    full    benefits

until her termination.        As such, her interference claim must

also fail.     See Yashenko, 446 F.3d at 549-50 (holding that where

employee was terminated due to a legitimate reason, he cannot

show that he is entitled to reinstatement even if the employer

otherwise interfered with his FMLA rights by denying leave).



                                    V.

       For   the   aforementioned   reasons,   we    affirm    the    district

court’s      judgment   awarding    summary    judgment       in     favor   of

Discovery.

                                                                      AFFIRMED




                                    18
