PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1377

TINA SMITH,

Plaintiff – Appellant,

and

ROBERT FARNSWORTH,

Plaintiff,

v.

CSRA; MERRICK B. GARLAND, Attorney General,

Defendants – Appellees,

and

GENERAL DYNAMICS CORPORATION,

Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:18-cv-00915-LO-JFA)

Argued: May 5, 2021 Decided: September 1, 2021

Before GREGORY, Chief Judge, QUATTLEBAUM, Circuit Judge, and KEENAN, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.

ARGUED: Joshua Harry Erlich, THE ERLICH LAW OFFICES, PLLC, Arlington, Virginia, for Appellant. Rebecca Sara Levenson, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Joseph Richard Ward, III, KULLMAN FIRM, PC, Englewood, Colorado, for Appellees. ON BRIEF: Davia Craumer, Katherine L. Herrmann, THE ERLICH LAW OFFICE, PLLC, Arlington, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Meghan Loftus, Assistant United States Attorney, Catherine M. Yang, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee Merrick B. Garland.

2 GREGORY, Chief Judge:

Tina Smith (“Smith”) appeals from the district court’s entry of summary judgment

in favor of government contractor CSRA, Inc. (“CSRA”) and the Attorney General of the

United States 1 in his capacity as the federal official in charge of the Drug Enforcement

Administration (“DEA”), on claims of disability discrimination and retaliation in violation

of the Rehabilitation Act of 1973 (the “Rehabilitation Act”),

et seq., and

the Americans with Disabilities Act (“ADA”),

et seq. We affirm the

district court’s summary judgment as to Smith’s disability discrimination claim but vacate

summary judgment as to her retaliation claim and remand for further proceedings.

I.

A.

We “review[ ] de novo the district court's order granting summary judgment.” Jacobs

v. N.C. Admin. Office of the Cts.,

, 565 n.1 (4th Cir. 2015). “A district court

‘shall grant summary judgment if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’”

at 568

(quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could return a

verdict for the nonmoving party.”

(internal quotation marks omitted). In determining

whether a genuine dispute of material fact exists, “we view the facts and all justifiable

1 Smith’s Second Amended Complaint names Matthew Whitaker, the Acting Attorney General of the United States at the time of its filing. The Court substituted Attorney General Merrick Garland as the named party, in his capacity as the current Attorney General of the United States. 3 inferences arising therefrom in the light most favorable to . . . the nonmoving party.”

at 565 n.1 (internal quotation marks omitted).

Smith is a geospatial intelligence expert who in 2013 began working with DEA as

a subcontractor assigned to the agency’s geospatial intelligence program (the “Program”).

Smith worked at the direction of DEA’s Chief Technology Officer Mark Shafernich at

DEA’s Sterling, Virginia Data Center.

At the beginning of their working relationship, Smith informed Shafernich that she

has a disability that adversely affects her mobility, limiting her ability to stand, walk, sit,

ascend and descend stairs, and drive. Shafernich authorized accommodations for Smith’s

disability, including (1) a remote work “token” that gave her secure access to DEA’s

sensitive but unclassified infrastructure while working offsite, and (2) onsite parking at the

Sterling Data Center, where DEA provided her with an office and equipment to perform

her duties. DEA retained sole authority to activate and/or revoke its remote tokens.

In 2015, Smith formally requested (with supporting medical documentation) and

was granted an accommodation for her disability that authorized her to work remotely 50

percent of the time. From this point through 2017, Smith received positive performance

reviews from Shafernich as well as other DEA and contractor employees and consultants.

In 2016, CSRA became the prime contractor for an information technology contract

with the Department of Justice and assumed responsibility for supplying the subcontracted

labor under its contract with DEA. CSRA Program Manager Scott Barnhart coordinated

the DEA task order as part of the prime contract. Barnhart did not manage her day-to-day

4 activities or schedule. Instead, DEA directed her work in the form of identified

deliverables.

When CSRA took over, Shafernich requested to retain Smith in the Program. On

June 7, 2016, Smith, through her company, Smith Global, LLC, entered into a subcontract

(the “Consultant Agreement”) with CSRA to continue in her position. The Consultant

Agreement provides in part:

[T]he Consultant’s relationship to [C]SRA shall be to provide services on an independent contractor basis. Nothing in this agreement should be construed to create a . . . employer-employee relationship. Consultant (a) is not the agent of [C]SRA; . . . and (c) will not be entitled to and waives any right to any benefits that [C]SRA makes available to its employees, such as group insurance, holidays or paid time off, and 401(k) eligibility and match. Consultant will not be entitled to or covered by worker’s compensation coverage, unemployment insurance or any other type or form of insurance normally provided by [C]SRA for its employees. [C]SRA will not be responsible for withholding federal income or social security taxes from the fee paid to the Consultant.

J.A. 101. 2

The Consultant Agreement further provided that either party could terminate the

Agreement “at any time and without cause,” J.A. 103, and that the “Place of Performance”

included “Various sites as directed by Customer and/or [C]SRA.” J.A. 100. The

Agreement also provided that DEA determined the work hours for performing the

contracted services. Smith’s position did not change in substance or structure under the

Consultant Agreement. She continued to work, with accommodations, under Shafernich’s

supervision at the Data Center alongside both CSRA and DEA employees.

2 Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal. 5 In April 2017, Smith met with Maura Quinn, DEA’s Acting Deputy Assistant

Administrator with the Office of Information Systems, to brief her on the Program.

According to DEA, Quinn became dissatisfied during the meeting when Smith was unable

to answer questions about the Program. As a result, on April 25, 2017, Quinn directed that

Smith and her project partner, CSRA employee Joseph Marceau, begin reporting to DEA

headquarters on May 1, 2017, to work under the supervision of DEA Project Manager

Kevin Tseng and Section Chief Mildred Tyler.

Smith believed the transition to DEA headquarters was so that the contractors could

“fully brief” the headquarters team “to make sure they understood where the project was

and the next steps for moving forward” and could “get[] control” of the Program’s

resources. J.A. 539, 797, 799. But according to Quinn, she moved the Program from the

Sterling Data Center to DEA headquarters because she had formed the impression that

Smith’s services may not have been serving DEA’s interests and needs, and that Smith may

not have the technical skills necessary to achieve DEA’s goals for the Program.

For Quinn, the meeting with Smith also confirmed her concerns with Shafernich’s

oversight of the Program in Sterling. She concluded that new leadership of the Program at

DEA headquarters was needed to ensure the Program better met DEA’s law enforcement

needs, particularly the need to expand access to geospatial intelligence materials to agents

throughout the DEA. Quinn had also learned that the Program duplicated the efforts of

another DEA geospatial program in El Paso, Texas which, unlike the Program in Sterling,

was utilizing “the latest technology.” J.A. 1202. Quinn decided it was necessary to

6 consolidate the programs, and Tseng was tasked with managing the transition and

decommissioning the Sterling Program.

Upon learning of the transition to a new task manager and that she would be required

to work at DEA headquarters, Smith lobbied to maintain her previous remote work and

task monitoring arrangement. Before the change in work location took effect, Smith stated

that there was “a case for location flexibility based on the task priorities and [her] physical

disability” and reminded Barnhart and Shafernich that she “works remote[ly] 50% of the

time due to physical disability, per medical provider letter to DEA.” J.A. 848. Barnhart

responded to Smith, explaining that the matter “will need to be worked and passed through

[Tyler] and [Tseng].” J.A. 848.

Barnhart’s response was consistent with CSRA’s informal policy for handling

subcontractor accommodation requests. CSRA refers the subcontractor to the company

that employs them, facilitates communications between that company and the government

client to whom the subcontractor is assigned, and lobbies the government client for the

accommodation. DEA’s accommodation policy (the “Accommodation Policy”)

establishes procedures for considering employee accommodation requests but makes no

reference to contractors. DEA’s EEO office analyzes whether a contractor’s

accommodation request that “is otherwise reasonable and properly supported by medical

documentation can and should be provided by DEA as opposed to the contractor’s

company.” J.A. 338. DEA expects the contract representative for the prime contractor

company, in this case Barnhart, to be involved in accommodation discussions.

7 DEA officials did not respond to Smith’s request to continue her remote work

arrangement before she was required to report to DEA headquarters. On May 2, 2017, the

first day she reported to work at that location, Smith asked Tyler for permission to park

onsite and to continue working remotely up to 50 percent of the time based on the

accommodation Shafernich had approved. Smith supported her request with an updated

letter from her physical therapist describing her current physical limitations. J.A. 511.

Without a parking pass, Smith was forced to park either at an adjacent hotel or shopping

mall. Both options required her to walk a distance she was unable to manage due to her

disability. Consequently, Smith intermittently continued to work remotely while awaiting

formal approval of her accommodation despite notification that she was not authorized to

do so.

Tyler responded to Smith’s request on May 5, stating, “I cannot approve your

remote work request until we are able to review the contractual agreement (ITSS-4 at DOJ)

that addresses your special needs. We are also seeking information to determine the

appropriate documentation required for such requests.” J.A. 855. Tyler ultimately rejected

Smith’s documentation from her physical therapist and demanded a letter from her primary

care physician.

Tyler then referred Smith’s accommodation request to Michelle Bower (Quinn’s

deputy) and DEA Section Chief Evelyn Wideman, who coordinated with DEA’s EEO

office. DEA reviewed its contract with CSRA and concluded it could not grant the request.

First, the contract did not expressly provide for remote work. Although Shafernich had

previously authorized Smith to work remotely, DEA concluded that he had no authority to

8 do so. Second, DEA’s Accommodations Policy did not apply to Smith because she was a

CSRA contractor, not a DEA employee. Finally, the terms of DEA’s building lease limited

the issuance of parking passes to employees.

On May 7, 2017, Smith asked to meet with Barnhart and Tyler at DEA headquarters

to discuss her schedule for the next thirty days as well as accommodations for her disability.

She emphasized that resolving the issue was “key for this transition to work.” J.A. 852.

The next day, Tyler informed Smith that the DEA could not provide her a parking pass

because she was a contractor and not a DEA employee. Smith emailed Barnhart and

Shafernich for guidance, reiterating that she was physically unable to walk “back and forth

from the mall without significant degeneration” and needed reasonable accommodations

at DEA headquarters to continue working there. J.A. 851. Shafernich forwarded Smith’s

email to Bower and asked that Smith be accommodated.

Having heard nothing more from Tyler, on May 10, 2017, Smith emailed her about

her accommodation request. “I hope there will be some handicap accommodations soon

so I can continue working and not stressing over the time being lost. My apologies for my

frustrations, this is a disability I have no control over.” J.A. 850. Tyler responded that

DEA and CSRA management would discuss her situation later that morning and would

provide guidance going forward. Smith was not invited to participate. When Smith

inquired about the outcome of the discussion, Tyler referred her to Barnhart, who

responded:

Tina – DEA is interested in having you support them in a part time capacity going forward. They can not [sic] accommodate your parking request as they consider you a non-employee. They value what you bring and wish to

9 continue working with you and this is why they will adjust to a part time posture, to help with your physical demands. They are assembling this desire via the JMD COR [Justice Management Division Contracting Officer’s Representative], per my request, so we have their formal intention. They would like you onsite three days a week and a schedule that is pretty firm, say Monday, Tuesday, Thursday. Once I have their formal intent I’ll host a call between myself, CSRA subk, and you to answer any questions and ensure we are tracking.

J.A. 503.

Smith responded, “[I]t is unlawful to discriminate against me for my known disability that

I have been working with at DEA for 4 yrs. I do not agree to them discontinuing my

reasonable accommodations and thinking it is ok to now cut my hours in half because I am

physically disabled. Take no further steps on this action.”

Despite her disapproving response to Barnhart’s email, Smith nonetheless provided

the medical documentation Tyler demanded on May 15, 2017. Her primary care

physician’s May 9, 2017, letter stated:

Ms. Tina Smith has been my patient for several years. She has a history of chronic back pain with functional limitations following a 2009 surgery for multiple level spinal fusions (at the level of L3-4-5-S1). She has been under the constant care of a physical therapist where she is working on improving her function.

Ms. Smith continues to have difficulty with walking, sitting or standing for extended periods of time due to the back spinal fusions and cervical disc degenerations. These activities lead to weakness, numbness/tingling, and pain in the extremities.

Over the last several years, she has had the accommodation to work 50% of the time at a remote location where she is able to fully perform her job tasks as well as preserve her joint function by decreasing the gravitational load on the spine. She also requires a handicap parking space to limit the need to walk distances when coming in to [sic] the office.

J.A. 510.

10 On May 19, 2017, JMD COR documented its formal proposal outlining the

parameters of a part-time scheduling accommodation for Smith as Barnhart said it would.

Unlike the proposed accommodation Barnhart described in his email, which Smith

interpreted as limiting the maximum number of hours she could work, the formal proposal

allowed Smith to work up to five days a week at her discretion. Notably, the proposal still

failed to offer Smith a parking pass. In any event, neither DEA nor CSRA communicated

this formal offer of accommodation to Smith; Barnhart’s May 10, 2017, email to Smith

was the last communication she received from DEA or CSRA regarding a disability

accommodation. In the meantime, Smith continued to report to DEA headquarters only

intermittently–nine days in May and three days between June 1 and June 11. She continued

to work remotely and billed DEA for fourteen days of unauthorized telework. CSRA

initially expressed support for Smith’s accommodation requests, but because they involved

DEA facilities and DEA consent, Barnhart and CSRA pressed Smith to work onsite at

headquarters as DEA had instructed until her accommodation request was resolved.

DEA alleges that during this time, DEA officials developed concerns about Smith’s

technical skills and her response to the relocation of the Program to DEA headquarters

under Tseng’s and Tyler’s management. DEA leadership described Smith’s conduct as

“stonewalling” and lacking a “collaborative spirit.” J.A. 1684, 1686. According to DEA,

Smith often refused to complete tasks Tseng and Tyler requested or to provide the

deliverables they asked for, or sometimes provided them in a piecemeal and disorganized

fashion. She chose instead to work on matters she prioritized rather than help them learn

about the Program or respond to their list of priorities. Smith continued to attend offsite

11 meetings that DEA determined were not in its interests, refused to use the required time

tracking system for subcontractors, and did not provide required weekly status reports. By

her own admission, Smith found the tasks Tyler and Tseng asked her to complete “silly,”

“outlandish,” “too much work,” and “not a smart business decision.” J.A. 1325–26, 1463.

And despite DEA’s repeated instructions that she was not authorized to telework, Smith

continued to work remotely.

On May 23, 2017, Tyler emailed Barnhart that she had met with Smith to discuss

her job duties in support of the Program. In response to another reminder that remote work

was prohibited, Smith told Tyler that she “could only come into the office once a week

and/or daily with a parking permit due to her disability.” J.A. 205. Smith requested a

meeting with Tyler, Barnhart and the EEO office to discuss her pending accommodation

request. Tyler asked Barnhart to discuss the proposed meeting with Smith and to schedule

it if CSRA, as the prime contractor, wanted to “bring these issues up for discussion with

the government.”

CSRA did not schedule the meeting Smith requested. On May 26, 2017, Barnhart

instead arranged a conference call between himself, Smith, and CSRA’s HR Director,

Colleen Bjork. Bjork informed Smith she was required to report to DEA headquarters five

days per week, and because she was not, she was not meeting DEA’s expectations or

satisfying the requirements of her role. Thus, Smith had “to make a decision” about

“looking for another position” because DEA would not accommodate her requests. J.A.

1565. Smith requested a week to respond. J.A. 204, 1565. Barnhart memorialized the

meeting in an email to Tyler, reporting that he spoke with Smith and explained that “CSRA

12 is not obligated to provide accommodations for her and neither is the Government.

Regardless of what has happened before the requirement for her role has changed and she

needs to make a decision if she wishes to continue or not. Tina asked for a week to make

this decision.” J.A. 204.

On May 29, 2017, Smith filed a complaint with DEA’s EEO office alleging the

agency’s failure to accommodate her disability. Just two days later, on May 31, 2017,

Tyler directed Barnhart to retrieve “all government equipment . . . being used to support

[Smith’s] remote access,” including her remote work token. J.A. 480. The following day,

Barnhart instructed Smith to return the remote token upon her return to DEA headquarters.

On June 7, 2017, before returning the token, and despite instructions to raise concerns with

Barnhart and Tseng, Smith asked Quinn directly if she should keep the token. Tyler

responded on Quinn’s behalf that “[a]s discussed with you and [Barnhart] on a few

occasions, remote access is not an option for you.” J.A. 528.

Then, within a matter of days, Quinn revoked Smith’s security clearance, and CSRA

terminated the Consultant Agreement. In the days prior to this action—as early as June

1—Tyler and Barnhart had discussed terminating Smith’s contract with CSRA. Tyler told

Barnhart that once he had retrieved the government equipment supporting Smith’s remote

work and Tseng had access to Smith’s work files, “it will be your call to release Tina on

Friday, June 2nd.” J.A. 479. But then on June 5, DEA’s EEO office issued Smith a

parking pass that would permit her to park in the DEA headquarters parking garage. On

June 7, Tyler asked for “an update on [his] decision to release” Smith. J.A. 479-80. But

Barnhart had taken no action. He had been surprised to learn that Smith had received a

13 parking pass. He informed Tyler that he was prepared to fire Smith on June 5 but “deferred

from that action” when he learned the parking accommodation had been granted. J.A. 479.

“[S]ince our discussion with [Smith] was to arrive and report to work at headquarters

everyday [sic] or resign” and “[w]ith the parking pass approval it appeared that this matter

resolved itself.”

Just two days later, on Friday, June 9, 2017, Quinn informed Barnhart that DEA

intended to revoke Smith’s security clearance. Quinn instructed Barnhart to let Smith

complete the workday and to inform her of the revocation over the weekend. Barnhart

informed Smith as directed on Sunday, June 11, 2017. CSRA terminated its Consultant

Agreement with Smith the following day. Without her security clearance, she was no

longer able to provide contracted work at DEA headquarters. Smith asked DEA and CSRA

to explain why her security clearance had been revoked but received no response.

Quinn did not offer Barnhart any explanation for her decision to revoke Smith’s

security clearance. Quinn’s email correspondence, however, indicates that on June 2, 2017,

EEO Program Manager Charmaine McDaniel (“McDaniel”) contacted Quinn regarding an

“EEO issue” involving Smith. After speaking to one EEO counselor directly, Quinn

scheduled a teleconference with McDaniel to discuss the matter on Monday, June 5. See

J.A. 929–31. Additionally, on June 6, Tyler forwarded Quinn a June 5 email she received

from McDaniel. McDaniel informed Tyler that she was conducting a limited inquiry

regarding an informal EEO complaint Smith filed against DEA based in part on the

agency’s failure to accommodate her disability by refusing her request to work remotely

and denying her a parking pass. McDaniel requested an interview with Tyler as part of the

14 investigation of the complaint. J.A. 921. Tyler forwarded the email to Quinn with the

message, “FYI.”

After Smith’s departure, Quinn stated she revoked Smith’s security clearance

because she made statements at a June 7, 2017, meeting indicating that she was storing

DEA documents on her personal computer in violation of the DEA’s information security

policy. But a June 16, 2017, memorandum Tyler prepared to document DEA’s concerns

with Smith’s “support and attendance” makes no mention of a security violation resulting

in the revocation of Smith’s security clearance. It does, however, document DEA’s

concern about Smith working offsite. Tyler noted that Smith reported 164 hours of work

on her timesheets for the month of May but had worked on site at DEA headquarters 11

days, the equivalent of 88 “validated” work hours. J.A. 793–94. Tyler outlined other

concerns with the contract support Smith provided, including that she was “not cooperative

or communicated well in providing information and/or data to the new government Project

Manager that has hindered progress on the project,” and was “resistant [sic] in providing

and/or responding” to ‘numerous’ requests,” for various types of information about the

Program. J.A. 794-95.

B.

Smith filed a civil action alleging disability discrimination and retaliation in

violation of the Rehabilitation Act against DEA, and in violation of both the Rehabilitation

Act and the ADA against CSRA. She alleged CSRA and DEA “violated [her] right to

reasonable accommodation of her disability,” J.A. 27, and terminated her in “reprisal for

having opposed the discriminatory actions about which she had complained.” J.A. 28.

15 Following discovery, CSRA and DEA filed separate motions for summary

judgment. CSRA argued that Smith could not pursue a claim under the Rehabilitation Act

against CSRA, and that her ADA claims failed because Smith was an independent

contractor and ultimately could not show that CSRA violated the ADA. DEA argued that

the court, without deciding whether DEA was Smith’s joint employer, should find that

Smith’s claims failed as a matter of law because she could not show that DEA failed to

provide a reasonable accommodation, or that DEA terminated her services due to

retaliatory animus rather than performance issues, including Quinn’s belief Smith had

violated DEA’s information security policy.

The district court granted both motions for summary judgment. With respect to

Smith’s claims against CSRA, 3 the court held that the ADA did not apply to Smith because

“only qualified individuals,” as defined in the ADA, “are entitled to [its] protections,” J.A.

1002; see Jacobs,

. Applying both the 11-factor independent contractor

test set forth in Garrett v. Phillips Mills, Inc.,

(4th Cir. 1983), and the

9-factor joint employer test of Butler v. Drive Automotive Industries of America, Inc.,

(4th Cir. 2015), the court concluded that Smith was an independent

contractor, not a CSRA employee, and that CSRA was not Smith’s “joint employer” with

3 At the time of the court’s order, Smith had withdrawn her Rehabilitation Act claim against CSRA. The district court noted that the Rehabilitation Act does not provide a private right of action under Section 503 of the Act, see Painter v. Horne Bros., Inc.,

(4th Cir. 1983); and that CSRA is not subject to Section 504 of the Act. See DeVargas v. Mason & Hangar-Silas Mason Co.,

, 1383 (10th Cir. 1990) (government contractors “do not fall within the ambit of section 504 of the Rehabilitation Act”). J.A. 1001. 16 DEA. The ADA “does not protect independent contractors from discrimination based upon

disability.” J.A. 1002; Ratledge v. Sci Applications Int’l Corp., No. 1:19-CV-239,

, at *2 (E.D. Va. Feb. 10, 2011), aff’d,

(4th Cir. 2011).

The district court first found that based on its application of the Garrett factors,

Smith was an independent contractor. Applying “agency principles and examin[ing] the

‘economic realities’ of the relationship,” see Chamberlain v. Securian Fin. Grp., Inc.,

(W.D.N.C. 2016) (quoting Garrett,

), the court

considered that CSRA was engaged in the business of fulfilling government contracts, and

that to fulfill its contract with DEA, it in turn contracted with Smith, a geospatial

intelligence subject matter expert whose work product was deliverable directly to DEA.

Further, the court reviewed the express contract terms governing Smith’s relationship with

CSRA, including terms referring to her as an independent contractor terminable at will and

not subject to the withholding of federal taxes or entitled to employee benefits. The court

concluded that these terms reflected the parties’ “clear intent to maintain an independent

contractor relationship.” J.A. 1003.

But the district court found Garrett’s “control” factors most persuasive and

concluded that CSRA lacked control over Smith. See Butler,

(“Fourth

Circuit has consistently focused on control” as “the ‘principal guidepost’ in the analysis”).

The court noted CSRA did not manage the work Smith performed for DEA. DEA, not

CSRA, determined the work requirements and how they were to be performed, provided

Smith’s equipment, and set the location for the performance of the work. Further, the court

found that Smith did not readily respond to work-related directives given by CSRA

17 employees. Considering these factors in total, the court found that Smith was an

independent contractor not entitled to ADA protections from CSRA.

In reaching this conclusion, the district court rejected Smith’s argument that

“CSRA’s liability arises from its joint employer relationship with DEA.” J.A. 1004.

Examining the Butler factors, particularly those it found most important in determining the

extent of an entity’s control of an employee, it concluded that although CSRA had

contractual authority to terminate Smith’s contract, it was not her joint employer. The

court determined that CSRA in fact had minimal control over Smith and it was DEA that

directly caused the termination of her contract. CSRA terminated Smith’s contract only

after she was rendered incapable of fulfilling her contractual obligations to DEA. The court

considered other facts as well, including that CSRA issued Smith’s paycheck and

purportedly handled employee discipline, but found them unpersuasive in light of CSRA’s

lack of ultimate control.

In sum, the district court, finding Smith was an independent contractor and that

CSRA was not her joint employer with DEA, held that Smith was not a covered employee

for purposes of the ADA, which protects only “qualified individuals.” See

(a). Because “there is no genuine dispute of material fact that [Smith’s]

relationship[] with CSRA [did] not fall within the purview of the ADA, the claims against

CSRA fail as a matter of law.” J.A. 1006.

Next, in granting DEA’s motion for summary judgment, the district court

determined that it need not determine whether the Rehabilitation Act and the ADA were

18 applicable to Smith because her claims failed as a matter of law. 4 J.A. 1006. The court

first found that there was no genuine dispute as to whether DEA had refused to

accommodate Smith, noting that DEA accommodated her disability when it provided her

with a parking pass within a reasonable period of time and also offered the “alternative

reasonable accommodation” of a part-time work schedule, which she declined. J.A. 1007–

08; see Hannah P. v. Coats,

(4th Cir. 2019) (delay in providing an

accommodation may be reasonable where accommodation request is under active

consideration); Reyazuddin v. Montgomery Cnty.,

(4th Cir. 2015)

(employer may, at its discretion, provide an alternative reasonable accommodation to the

exact accommodation requested).

The court then rejected Smith’s argument that she was entitled to work remotely,

finding that DEA had the right to determine her place of performance, that her medical

documentation did not state that remote work was necessary for her to perform the essential

functions of her job, and that DEA was not required to provide her preferred

accommodation. J.A. 1008. Because DEA accommodated Smith, the district court held

that the agency was entitled to judgment as a matter of law on this claim. J.A. 1008.

4 The district court’s reference to an ADA claim against DEA is perplexing because the operative complaint does not assert such a claim against DEA. It alleges that DEA violated Smith’s right to a reasonable accommodation and terminated her in retaliation for complaining about DEA’s discriminatory actions in violation of the Rehabilitation Act. See J.A. 27-28. To the extent that the district court references Smith’s claims against DEA as violations of the ADA, we construe them as Rehabilitation Act claims. Although the ADA and the Rehabilitation Act employ different statutory language, our Court has construed them to “impose similar requirements.” Halpern v. Wake Forest Univ. Health Scis.,

(4th Cir. 2012). Both statutes “require a plaintiff to demonstrate the same elements to establish liability.”

19 Next, the district court found that to the extent that Smith’s claims also asserted that

she was terminated because she is disabled, those claims failed because DEA articulated

legitimate, nondiscriminatory reasons for terminating Smith’s services, including her

alleged violation of DEA’s information security policy, poor work performance, and

refusal to follow instructions and to report to work at DEA headquarters, all of which

demonstrated her failure to satisfy DEA’s legitimate employment expectations. The court

concluded Smith’s inability to demonstrate that these reasons were pretextual was fatal to

her discrimination claim.

Finally, the district court awarded summary judgment to DEA on Smith’s claim she

was terminated in retaliation for requesting an accommodation and for filing an EEO

complaint. The district court concluded that “the record lack[ed] direct evidence of

retaliation,” and thus Smith did not meet her burden to establish a causal link between her

protected activity and DEA’s adverse employment action. J.A. 1013–14. The court found

“any inference of retaliation is undercut because [Smith] received an accommodation from

DEA, and was offered another which she declined,” and that “the record is devoid of

evidence that Quinn, the decision-maker in her case, was aware that she filed EEO

complaint.” See Dowe v. Total Action Against Poverty in Roanoke Valley,

(4th Cir. 1998) (employer’s knowledge that plaintiff engaged in protected activity is

“absolutely necessary” to establish prima facie case of retaliation). J.A. 1014. Further, as

with Smith’s disability discrimination claim, the court found there was no evidence that

DEA’s articulated reasons for the adverse employment action were pretextual. In the

court’s view, “[t]he undisputed facts show[ed] that Smith’s performance was deficient, she

20 was resisting instructions and defying work requirements.” J.A. 1014-15. Because she

“[had] not pointed toward any evidence showing [her] termination[] [was] pretextual,” the

court held her “retaliation claim[] therefore fail[ed] as a matter of law.” J.A. 1015.

This timely appeal followed.

II.

On appeal, although she asserted claims against CSRA for violation of the ADA and

the Rehabilitation Act, and against DEA for violation of the Rehabilitation Act, Smith

contends that CSRA, in violation of the ADA, and DEA, in violation of both the ADA and

the Rehabilitation Act, discriminated against her by refusing to provide reasonable

accommodations for her disability, and by terminating her in retaliation for engaging in

protected activity. She maintains that as a joint employee of both CSRA and DEA, she

was entitled to protection from DEA’s disability discrimination in violation of the

Rehabilitation Act, as well as the discriminatory actions of both joint employers in

violation of the ADA.

Both CSRA and DEA challenge Smith’s claims. CSRA maintains that Smith

performed her duties as an independent contractor, not as an employee, and because CSRA

was not her joint employer, she is not entitled to ADA protections from CSRA. 5 And DEA

argues that it was not error for the district court to find, without deciding whether DEA

5 Smith has not appealed the district court’s findings that Section 503 of the Rehabilitation Act does not provide a private right of action, and that CSRA, a government contractor, is not subject to Section 504 of the Act. See Painter,

; DeVargas, 911 F.2d at 1383. Thus, Smith’s only claim against CSRA on appeal is that CSRA discriminated against her based on her disabilities in violation of the ADA. 21 was Smith’s joint employer, that Smith’s claims failed as a matter of law because Smith

could not show that DEA failed to provide her with a reasonable accommodation, or that

DEA terminated her services in retaliation for engaging in protected activity rather than for

legitimate, nondiscriminatory reasons related to her work performance. We first address

Smith’s ADA claim against CSRA.

A.

1.

The parties dispute the proper classification of Smith’s working relationship with

CSRA. In Smith’s view, CSRA’s ADA liability arises from CSRA’s and DEA’s status as

her joint employers subject to the requirements of the ADA. She argues that the district

court erred in concluding that she was an independent contractor not entitled to ADA relief

from CSRA. She contends that analysis of the “economic realities” of the relationship

proves first her status as a DEA employee, and further, that CSRA shared control of her

DEA employment to such an extent as to render CSRA her joint employer. Thus, Smith

concludes CSRA should be held liable for her claims arising under the ADA. We disagree.

An analysis of the facts and the law leads us to conclude Smith was an independent

contractor.

2.

The ADA provides: “No covered entity shall discriminate against a qualified

individual on the basis of disability in regard to . . . the hiring, advancement, or discharge

of employees . . . and other terms, conditions, and privileges of employment.”

(a). “To establish a claim of disability discrimination under the ADA, a plaintiff

22 must prove ‘(1) that she has a disability, (2) that she is a “qualified individual” for the

employment in question, and (3) that [her employer] discharged her (or took other adverse

employment action) because of her disability.’” Jacobs,

(quoting EEOC

v. Stowe-Pharr Mills, Inc.,

(4th Cir. 2000)).

The ADA assumes the existence of an employer/employee relationship. It defines

an “employee” as “an individual employed by an employer,”

(4), and a

“qualified individual” as “an individual who, with or without reasonable accommodation,

can perform the essential functions of the employment position that such individual holds

or desires.”

(8) (emphasis added). The ADA “does not protect

independent contractors from discrimination based upon disability.” Chamberlain,

(citing Ratledge,

, at *2); see also Flynn v. Distinctive

Home Care, Inc.,

, 427 & n.20 (5th Cir. 2016) (collecting persuasive authority

that independent contractors are not covered by Title I of the ADA). Accordingly, because

the ADA applies to employers and affords protections to employees engaged in an

employment relationship, Smith must establish that she was an employee engaged in an

employment relationship with the defendant employer to recover under the ADA.

3.

“For purposes of the ADA, an employment relationship is determined under agency

principles and the ‘economic realities’ of the relationship.” Chamberlain,

(citing Garrett,

(whether an individual is an employee is determined

by analyzing the facts of each employment relationship under a standard incorporating both

the common law test derived from principles of agency and the so-called ‘economic

23 realities’ test)). Whether an independent contractor relationship exists is a question of law.

Cilecek v. Inova Health Sys. Servs.,

, 261 (4th Cir. 1997).

Whether an individual is an employee or an independent contractor “is properly

determined by analyzing the facts of each employment relationship” by considering the

following factors:

(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the “employer” or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the “employer;” (9) whether the worker accumulates retirement benefits; (10) whether the “employer” pays social security taxes; and (11) the intention of the parties. Garrett,

(citation omitted). Control is the most important factor to be

considered, but it is not dispositive.

see also Butler,

(no one factor is

determinative, but “the Fourth Circuit has consistently focused on control”).

Applying these principles to the facts before us, we cannot conclude that the district

court erred in finding that Smith was an independent contractor and not a CSRA employee.

An examination of the facts underlying each Garrett factor supports such a conclusion. As

the district court noted, prime contractor CSRA is engaged in the business of staffing

government contracts. In accordance with the requirements of DEA’s task order, CSRA

contracted with Smith’s company, Smith Global, in 2016 for Smith to work for DEA as a

geospatial intelligence subject matter expert, which requires highly specialized technical

24 expertise. CSRA did not supervise Smith’s work product, determine her work hours or

location, or even provide the equipment necessary to perform the work. DEA determined

the tasks to be completed, and her work product was deliverable directly to the agency.

These facts weigh heavily against a finding that Smith was a CSRA employee.

Further, the terms of the Consultant Agreement demonstrate that it was the

expressed intention of the parties to establish an independent contractor relationship. The

Agreement explicitly refers to Smith as an independent contractor who was terminable at

will without notice. Pursuant to the Agreement, CRSA performed the administrative

function of issuing Smith’s paychecks, but did not withhold federal taxes from her

compensation or provide her with benefits offered to CSRA employees. These facts further

support a finding that Smith contracted with CSRA to perform services as an independent

contractor rather than an employee.

Finally, the facts support the district court’s conclusion that CSRA lacked the

necessary control over Smith. CSRA exercised no management control over any aspect of

the geospatial intelligence work Smith was contracted to perform. As the district court

noted, “CSRA’s role was simply to provide an expert in the relevant field to DEA, and

CSRA did that by finding [Smith] and instructing [her] to report to DEA pursuant to DEA’s

requirements.” J.A. 1004. The facts demonstrate that DEA officials were driving CRSA’s

contractual decisions regarding Smith as well. Barnhart initially assured Tyler that CSRA

would terminate its agreement with Smith on June 2, but later declined to do so based on a

belief that the issuance of the parking pass would enable Smith to satisfy DEA’s

requirement that she report to work at DEA headquarters each day. CSRA ultimately

25 exercised its authority to terminate the Consultant Agreement but did so only when DEA’s

revocation of Smith’s security clearance made it impossible for her to meet her contractual

obligations. Accordingly, we agree with the district court that the Garrett factors support

the conclusion that, as a matter of law, Smith was an independent contractor, and thus is

not a qualified individual entitled to ADA protections from CSRA.

B.

Based on these same facts, we are compelled to conclude that CSRA was not

Smith’s joint employer. In determining whether two entities are joint employers, this Court

considers the following factors:

(1) authority to hire and fire the individual;

(2) day-to-day supervision of the individual, including employee discipline;

(3) whether the putative employer furnishes the equipment used and the place of work;

(4) possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes;

(5) the length of time during which the individual has worked for the putative employer;

(6) whether the putative employer provides the individual with formal or informal training;

(7) whether the individual’s duties are akin to a regular employee’s duties;

(8) whether the individual is assigned solely to the putative employer; and

(9) whether the individual and putative employer intended to enter into an employment relationship.

Butler,

. The Court considers the first three Butler factors the most

important in determining whether a joint employment relationship exists.

As with the

26 Garrett independent contractor factors, control is the “principal guidepost” of this analysis.

An analysis of the Butler factors weighs against a finding that Smith was CSRA’s

employee. CSRA lacked the degree of control over the essential terms and conditions of

Smith’s work necessary to conclude that she and CSRA were engaged in an employment

relationship.

III.

Next we turn to Smith’s claims against DEA—that the agency failed to

accommodate her disability and retaliated against her for requesting accommodations and

filing an EEO complaint. We find first that the district court properly granted summary

judgment on Smith’s failure to accommodate claim.

A.

To establish a prima facie case of failure to accommodate, a plaintiff must show:

“(1) “that she was an individual with a disability within the meaning of the statute; (2) that

the employer had notice of her disability; (3) that with reasonable accommodation she

could perform the essential functions of the position; (4) that the employer refused to make

such accommodations.” Jacobs,

. The parties disagree as to the fourth

element. DEA contends that it did not refuse to accommodate Smith’s disability and we

agree.

Smith bears the burden to identify an accommodation, and ultimately, she must

persuade a trier of fact that the accommodation is reasonable. Lamb v. Qualex, Inc.,

(4th Cir. 2002). After DEA required Smith to report to DEA headquarters in

27 person each day, Smith requested both a parking pass and that the agency continue to

authorize remote work as an accommodation for her disability. But an employer is not

required to provide “the exact accommodation that the employee requested,” and in the

alternative may provide “an alternate reasonable accommodation” at its discretion.

Reyazuddin,

.

In some circumstances, an “unreasonable delay” may constitute a denial of an

accommodation. See Marks v. Wash. Wholesale Liquor Co., 253 F. Supp.3d 312, 324

(D.D.C. 2017). But “[a] relatively short delay of a few weeks (or even a few months) in

approving a request typically does not support such a claim.”

Further, a delay may be

found reasonable where the record demonstrates the accommodation request is under active

consideration. See Hannah P. v. Coats,

(4th Cir. 2019).

DEA contends that it offered Smith a reasonable accommodation—the parking

pass—within a reasonable period of time, and it was not required to offer her the

accommodation of remote work she requested even though it had been provided in the past.

Although the record demonstrates that DEA did not take the smoothest route to issuing

Smith a parking pass, it did in fact issue it five weeks after her request. We agree with the

district court that five weeks was not an unreasonable delay given that her request was

under consideration. During this period, DEA requested, and Smith provided, updated

medical documentation, and DEA inquired into what accommodations could be offered to

Smith in her capacity as a contractor under the law, DEA’s Accommodations Policy, and

the building lease, which generally did not permit contractors access to DEA’s parking

facilities. See Hannah P.,

.

28 Finally, we conclude that DEA was not required to offer Smith a remote work

accommodation and its failure to do so was not a refusal to accommodate. Consistent with

the updated medical documentation Smith provided, she received the reasonable

accommodation she requested (and that her physician specifically stated was needed) to

perform the essential functions of her job and meet her employer’s legitimate expectation

that she report to DEA headquarters for work daily. Although the documentation noted

that Smith had received remote work authorization as an accommodation in the past, it did

not specifically state that such an accommodation was required. 6 Moreover, the relevant

contract terms permitted DEA to determine the place where Smith would perform her work

for DEA.

There is no genuine dispute of fact that DEA did not refuse to provide Smith a

reasonable accommodation for her disability. DEA provided her the reasonable

accommodation that she requested and that was supported by the medical documentation

she provided. Accordingly, DEA is entitled to summary judgment on this claim.

B.

Next we turn to Smith’s claim that DEA retaliated against her for engaging in

protected activity, namely requesting accommodations for her disability and filing an EEO

complaint. We find that Smith has established a prima facie case of retaliation. She has

6 Because we conclude that DEA offered Smith a reasonable accommodation in the form of a parking pass, we need not consider whether the part-time work schedule DEA offered constituted an “alternate reasonable accommodation.” See Reyazuddin,

;

(9)(B) (“reasonable accommodation” may include “part-time or modified work schedules”). 29 presented sufficient evidence to demonstrate a causal relationship between her protected

activity and DEA’s adverse action. An examination of the record reveals that, contrary to

the district court’s findings, the evidence supports an inference that DEA took adverse

action against Smith for requesting a parking pass and seeking permission to work

remotely. The evidence also supports a finding that Quinn had knowledge of Smith’s EEO

complaint when she revoked her DEA security clearance. Additionally, a causal link is

further established by the temporal proximity between Smith’s complaint and the adverse

action taken against her. Finally, we find that there are genuine issues of material fact

concerning whether the reasons proffered for Smith’s termination were pretext for

retaliation.

1.

“[T]o prevail on a claim of retaliation, a plaintiff must either offer sufficient direct

and indirect evidence of retaliation, or proceed under a burden-shifting method.” Jacobs,

(quoting Rhoads v. FDIC,

(4th Cir. 2001)).

In the absence of direct evidence of retaliation, Smith has pursued her retaliation

claim via the application of the McDonnell Douglas burden-shifting framework. See

McDonnell Douglas Corp. v. Green,

(1973); see also Roberts v. Glenn Indus.

Grp., Inc.,

, 122 (4th Cir. 2021) (retaliation claim may be proven through

direct evidence of retaliation or via the application of the McDonnell Douglas burden-

shifting framework); Johnson v. United Parcel Serv., Inc.,

, 782–83 (4th

Cir. 2021) (citing Laing v. Fed. Express Corp.,

(4th Cir. 2013) (same)).

Under the McDonnell Douglas framework, a plaintiff must first show: (1) she engaged in

30 a protected activity; (2) her employer acted adversely against her; and (3) her protected

activity was causally connected to her employer’s adverse action. Rhoads,

. After a prima facie case is made, the burden shifts to the employer “to rebut the

presumption of retaliation by articulating a legitimate nonretaliatory reason for its actions.”

(quoting Beall v. Abbott Labs.,

(4th Cir. 1997)). If the employer

makes this showing, the plaintiff must demonstrate that the proffered reason is pretext for

retaliation. Rhoads,

. The ultimate burden to prove retaliation rests with

the plaintiff. Id.

2.

Here, there is no dispute that Smith satisfied the first and second prongs of a prima

facie case of retaliation. She suffered an adverse employment action when Quinn revoked

her security clearance after she made repeated requests for accommodation and just days

after she filed an EEO complaint. But the district court found that Smith failed to satisfy

the third prong of a prima facie case of retaliation, which requires her to show that there

was a causal relationship between the protected activity and the adverse employment

action. See Rhoads,

. In reaching this conclusion, the district court made

two specific findings. First, any inference of retaliation based on Smith’s request for an

accommodation was “undercut because she received an accommodation from DEA, and

was offered another which she declined.” J.A. 1014. Second, there was no evidence of

causation because “the record is devoid of evidence that Quinn, the decision-maker in her

case, was aware that [Smith] filed the EEO complaint,” and “[t]he undisputed facts show

Quinn was not aware of Smith’s EEO complaint.”

31 Each of these findings is flawed. The district court failed to consider facts

demonstrating the causal connection between Smith’s protected activity and the adverse

action taken against her. The first finding ignores the reality of how Smith came to receive

one accommodation and the manner in which she was offered the other. The second

finding is directly contrary to facts demonstrating that a question of fact remains as to

whether Quinn knew of Smith’s EEO complaint.

3.

a.

“[E]stablishing a ‘causal relationship’ at the prima facie stage is not an onerous

burden.” Strothers v. City of Laurel,

(4th Cir. 2018). Indeed, “very

little evidence of a causal connection is required to establish a prima facie case of

retaliation.” Roberts, 998 F.3d at 127 (citing Burgess v. Bowen,

(4th Cir. 2012)). “A plaintiff may attempt to demonstrate that a protected activity caused

an adverse action through two routes.” Roberts, 998 F.3d at 123 (quoting Johnson, 839 F.

App’x at 783–84). “A plaintiff may establish the existence of facts that ‘suggest[ ] that the

adverse action occurred because of the protected activity.’” Roberts, 998 F.3d at 123

(citing Johnson, 839 F. App’x at 783-84; Lettieri v. Equant Inc.,

(4th

Cir. 2007) (recognizing that relevant evidence may be used to establish causation)). “A

plaintiff may also show that ‘the adverse act bears sufficient temporal proximity to the

protected activity.’” Roberts, 998 F.3d at 123 (citing Johnson, 839 F. App’x at 783–84;

Clark Cnty. Sch. Dist. v. Breeden,

, 273–74 (2001)). “The existence of

relevant facts alone, or together with temporal proximity, may be used to establish a causal

32 connection between the protected activity and the adverse action.”

Here, we find that

the facts, in the light most favorable to Smith, are sufficient to establish the requisite causal

connection via both of these evidentiary routes.

b.

We first address the district court’s finding that the evidence does not support the

inference that Quinn retaliated against Smith for requesting accommodations because

Smith received a parking pass from DEA and declined DEA’s offer of a part–time work

schedule. We find that both the relevant facts and the temporal proximity of events

undermine the district court’s conclusion.

While it is certainly true that Smith ultimately received a parking pass, she received

it approximately five weeks after her initial request, during which her requests for both the

pass and for remote work authorization were repeatedly denied, and only after Smith filed

an EEO complaint alleging the failure of DEA officials to accommodate her medically

documented disability. Smith had reiterated to Tyler as recently as May 23 that she needed

a parking pass to report to work daily. On May 26, just three days prior to the filing of her

EEO complaint on May 29, Tyler and Barnhart had made it clear that Smith was required

to report to work at DEA headquarters each day without a parking pass and that she would

have to “make a decision” about whether she would continue working for DEA. And on

June 1, Tyler and Barnhart discussed releasing Smith on June 2, based at least in part on

33 the ground that Smith continued to work remotely without authorization. 7 Certainly, it is

reasonable to infer that but for the intervention of DEA’s EEO office, Smith would have

received no accommodation at all, and DEA’s intention to bring its working relationship

with Smith to an end was thwarted by the issuance of the parking pass.

Further, Smith’s rejection of the proposed part-time work schedule can be attributed,

at least in part, to confusion regarding the details of the proposed accommodation. The

part-time work accommodation, as summarized in Barnhart’s email, permitted Smith to

work only three days per week, resulting in a reduction in Smith’s work hours. Smith

specifically objected to this reduction in her response. Although the DEA later proposed

an accommodation that would have permitted Smith to work up to five days a week at her

discretion, this proposal was never communicated to Smith.

Despite these facts, DEA urges this Court to affirm the district court’s findings. In

support of its argument, DEA relies on several cases that are non-binding and factually

inapposite. DEA cites this Court’s unpublished opinion in Hollestelle v. Metropolitan

Washington Airports Authority, No. 97-1465,

, at *1 (4th Cir. May 8,

1998), where this Court held that the defendant employer’s “considerable efforts to

accommodate [the plaintiff] even after it knew [he] had filed a discrimination complaint

completely undercut[]” his retaliation claim.

. DEA contends that it “strains

credulity that a defendant would make such efforts while acting with retaliatory animus

7 Just two days after Smith filed her complaint, Tyler directed Barnhart to retrieve Smith’s remote token, ostensibly because she continued to work remotely without authorization. But Smith has not alleged that Tyler knew of her complaint when she issued this directive. 34 arising out of that protected activity.” Appellee’s Br. 37–38. But an examination of the

underlying facts reveals a set of circumstances very different from the ones presented here.

In Hollestelle, the plaintiff’s employer adjusted his work hours to address his

chronic tardiness. Over the next year and a half, Hollestelle continued to arrive late and

received a warning, a reprimand, and a suspension before he notified his employer he was

being treated for depression, which he asserted affected his ability to report to work on

time. Hollestelle’s employer held his suspension in abeyance pending the receipt of

medical documentation, but ultimately imposed the suspension when the documentation

failed to address any connection between his depression and his tardiness.

.

Hollestelle’s employer later agreed to allow him a ten-minute arrival window for reporting

to work, but Hollestelle still filed a complaint alleging his employer had discriminated

against him by disciplining him for his tardiness and failing to accommodate him. The

employer again modified Hollestelle’s work schedule, increasing his arrival time window

to fifteen minutes, but in just over two months he was tardy another 42 times—on average

by 27 minutes.

. Finally, the employer changed his start time from 8:15 a.m. to

9:30 a.m., but he was still tardy 55 times over the next 66 days. Only then did his employer

fire him.

Hollestelle’s employer made several accommodations for his tardiness—adjusting

the time he was required to report on numerous occasions—both before and after receiving

notice of a disability—and before and after he filed a complaint. By contrast, DEA offered

Smith no accommodations at all. In fact, DEA flatly refused to do so and informed her she

needed to “arrive and report to work at HQ everyday or resign”—until after she filed a

35 complaint. J.A. 479. Certainly, one could infer that DEA did not “willingly” offer Smith

the parking pass nor were its actions analogous to the “considerable effort to

accommodate” that this Court determined would undercut any inference of retaliation. 8 In

fact, DEA’s actions lead one to infer the opposite.

DEA also contends that any inference of retaliation is further undermined by the

fact that Quinn developed concerns regarding Smith’s work performance before Smith

engaged in any protected activity. This fact does not alter our conclusion here. The

relevant facts demonstrate that DEA was frustrated that Smith had not followed the

directive to report to work at DEA headquarters daily. Smith received an ultimatum to

report to work as instructed each day or resign despite her repeated insistence—supported

by medical documentation—that she could not do so without a parking pass. She then filed

her EEO complaint and was able to secure in a matter of days what DEA officials had not

been able (or willing) to provide over several weeks. By this date Barnhart and Tyler were

already discussing plans to terminate her if she did not resign. When the effort to force her

8 The same is true for other cases DEA cites where employers made significant accommodations prior to its adverse action. See Kerney v. Mountain States Health Alliance,

(W.D. Va. 2012) (no inference of retaliation for requesting accommodation where was plaintiff granted significant period of medical leave but did not communicate to employer that she required an accommodation upon returning to work); Soileau v. Guilford of Maine, Inc.,

(1st Cir. 1997) (“[e]vidence that an employer willingly granted an employee request for an accommodation, though by no means dispositive of the matter, tends to militate against making an inference of retaliation”) (emphasis added); Colon-Fontanez v. Municipality of San Juan,

(1st Cir. 2011) (no showing of retaliatory intent where employer made repeated efforts to accommodate employee over the course of nearly two decades); Fercello v. Cty. of Ramsey,

(8th Cir. 2010) (employer’s numerous accommodations of employee inconsistent with finding of retaliation). 36 resignation failed when Smith unexpectedly received the parking pass, Quinn revoked her

security clearance without any explanation. This action in turn caused CSRA to terminate

its agreement with Smith. These facts, contrary to the district court’s conclusion, support

an inference of retaliatory animus on the part of DEA against Smith for filing the EEO

complaint that blocked their effort to force her out of her position. DEA’s adverse action,

taken within days of Quinn learning of the complaint, also “bears sufficient temporal

proximity to [Smith’s] protected activity” to suggest that the adverse action was taken

because of the protected activity. See Johnson, 839 F. App’x 783–84; Clark Cnty., 532

U.S. at 273–74.

In sum, a full examination of the circumstances surrounding Smith’s receipt of the

parking pass and rejection of a part-time work schedule permits the inference that DEA’s

adverse actions were taken in retaliation for Smith requesting an accommodation her DEA

supervisors did not wish, but were ultimately required, to provide. Collectively, these

circumstances create a question of fact as to whether there was a causal connection between

Smith’s accommodation requests and EEO complaint and the adverse action taken against

her.

c.

The district court’s second finding—that there was no evidence that Quinn knew of

Smith’s EEO complaint—was simply error. A review of the record and the timeline of

events reveals there are genuine issues of material fact that preclude summary judgment

on this issue as well.

i.

37 “To establish a causal relationship between the protected activity and the [adverse

action], a plaintiff must show that the decisionmaker was aware of the protected activity at

the time the alleged retaliation occurred.” Roberts, 998 F.3d at 124; see also Johnson, 839

F. App’x at 783–84 (citing Dowe,

(plaintiff cannot establish the causation

element of a prima facie case where the relevant decisionmaker is unaware of the protected

activity)). “Since, by definition, an employer cannot take action because of a factor of

which it is unaware, the employer’s knowledge that the plaintiff engaged in a protected

activity is absolutely necessary to establish the third element of the prima facie case.”

Roberts, 998 F.3d at 124 (citing Dowe,

) (citations omitted)). Accordingly,

our analysis must consider what Quinn, the decisionmaker, knew at the time of the adverse

employment action.

ii.

The district court found that “the record is devoid of evidence that Quinn, the

decision-maker in her case, was aware that [Smith] filed the EEO complaint,” and that “[t]he

undisputed facts show Quinn was not aware of Smith’s EEO complaint.” J.A. 1013–14.

Based on this erroneous finding, the district court held that Smith did not meet her burden to

establish a causal link between her protected activity and DEA’s adverse employment action.

But DEA admits that the record provides at least some proof that Quinn was aware

that Smith filed a complaint regarding the agency’s failure to accommodate her disability.

DEA acknowledges that on June 6, Quinn received a copy of the email informing Tyler of

Smith’s EEO complaint and inviting Tyler to an interview as part of the investigation. But

additional emails also indicate that Quinn was aware of Smith’s complaint as early as June

38 2. On that date, Quinn received emails from McDaniel regarding an EEO matter involving

Smith. She then spoke with an EEO counselor and scheduled a teleconference with

McDaniel for the following Monday.

DEA downplays the significance of this evidence, arguing “mere knowledge . . . is

not sufficient evidence of retaliation . . . .” Williams v. Cerberonics, Inc.,

(4th Cir. 1989). This argument, however, fails to address the temporal proximity of

these events to Quinn’s adverse action. The evidence tends to prove not only that Quinn

was aware of the complaint, but that she was aware of it when she revoked Smith’s security

clearance just days after Smith filed her complaint and received a parking pass.

Smith has established not only “the existence of facts that ‘suggest[ ] that the adverse

action occurred because of the protected activity,’” Roberts, 998 F.3d at 123 (citing

Johnson, 839 F. App’x at 783-84; Lettieri,

), but also that “‘the adverse act

bears sufficient temporal proximity to the protected activity.’” Roberts, 998 F.3d at 123

(quoting Johnson, 839 F. App’x at 783–84; Clark Cnty., 532 U.S. at 273–74). We find

these facts, considered in the light most favorable to Smith, are sufficient to establish the

requisite causal connection via both of these evidentiary routes. See Roberts, 998 F.3d at

123 (citing Johnson, 839 F. App’x at 784 (relevant facts alone, or together with temporal

proximity, may establish a causal connection between the protected activity and the adverse

action)). Here, the documentary evidence, together with the timeline of events, is sufficient

to establish that Quinn was aware of Smith’s EEO complaint when she made the decision

to revoke her security clearance, and supports a finding that the causation prong of a prima

facie case of retaliation has been satisfied. We find that the district court’s findings to the

39 contrary were in error, and that genuine issues of material fact preclude summary judgment

on Smith’s retaliation claim.

d.

The district court found that even if Smith had established a prima facie case of

discrimination, Smith could not meet her burden to show that the legitimate,

nondiscriminatory reasons DEA proffered as grounds for her separation were pretext for

retaliation. We again conclude that the district court’s findings are in error.

If a plaintiff can demonstrate “that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimination [or retaliation],” summary

judgment is not appropriate. Burgess,

(quoting Tex. Dep’t of Cmty.

Affs. v. Burdine,

(1981)). Further, the Supreme Court has held that “a

plaintiff’s prima facie case of discrimination, combined with evidence from which a jury

could conclude that an employer’s proffered justification was false, support[s] an inference

of discrimination sufficient to defeat summary judgment.” Burgess,

(citing Reeves v. Sanderson Plumbing Prod., Inc.,

(2000)). We believe

that Smith has made such a showing here.

The district court found that “undisputed facts” showed that Smith’s performance

was “deficient,” and that she “was resisting instructions and defying work requirements.”

J.A. 1014-15. Smith’s retaliation claim failed as a matter of law, the court concluded,

because she had not “pointed toward any evidence showing [her] termination[] [on these

grounds] to be pretextual.” J.A. 1015. Indeed, DEA has proffered legitimate nonretaliatory

reasons for Smith’s termination, largely centered on perceived deficiencies in her work

40 performance—the most serious among them her failure to report to DEA headquarters

daily despite the difficulties she faced in doing so without a parking pass, and her alleged

violation of DEA’s information security policy. But viewing the evidence in the light most

favorable to Smith, there is a genuine issue of material fact regarding the proffered reasons

for her termination.

First, we note that a factfinder may infer that an employer’s post-hoc rationale is not

a legitimate explanation for an adverse employment decision. EEOC v. Sears Roebuck &

Co.,

, 853 (4th Cir. 2001). Moreover, an employer’s provision of shifting and

inconsistent justifications for taking an adverse employment action “is, in and of itself,

probative of pretext.” Id. at 852–53; see also Jacobs,

(lack of

contemporaneous documentation and inconsistent justifications for an adverse action could

lead reasonable jury to conclude justifications are pretext).

Here, DEA has not presented any contemporaneous documentation in support of its

reasons for terminating Smith. And the proffered reasons for her termination have evolved

over time. Of particular concern is Quinn’s allegation that a violation of DEA’s

information security policy caused her to revoke Smith’s security clearance. When first

asked to provide the reason for revoking Smith’s security clearance, Quinn gave no reason

at all. She did not document the details of the incident or conduct even the most basic

factfinding. There is no evidence in the record that Quinn confronted Smith with her

concern, asked her to explain, or even acted further to determine what DEA information

might have been compromised. Quinn certainly did not discuss the matter with Barnhart,

as he asserted that he knew of no reason why Quinn would take such an action.

41 A week after Smith’s separation, Tyler prepared a memorandum to document

DEA’s issues regarding Smith’s work performance, but an alleged violation of DEA’s

security policy was not among the concerns noted. Finally, the timing of Quinn’s actions

in relation to other events is suspect. The record establishes, contrary to the district court’s

conclusion, that Quinn was aware of Smith’s EEO complaint at the time of the revocation,

which both factually and temporally undermines DEA’s claim that Quinn’s action was not

retaliatory. We find that a reasonable jury could infer that Quinn’s post-hoc allegation that

Smith made statements indicating that she stored DEA information on her personal

computer was pretextual.

Similarly, a reasonable jury could find that the other proffered performance issues

were not the true reason Quinn revoked her security clearance. The most serious of these

reasons related to Smith’s in-person attendance. Tyler’s memorandum describes how

Smith had worked only a certain number of “validated” hours, as her remote work hours

were not authorized. During much of this period, however, Smith had requested, but had

been refused, either a parking pass or remote work authorization. In any event, there would

have been no reason to revoke Smith’s security clearance on this ground once she received

the parking pass that enabled her to perform her duties in person.

As for Smith’s other alleged performance issues, the testimony of DEA employees

is inconsistent with DEA’s allegations. Tseng, Smith’s project manager, testified that he

was surprised to learn Smith had been terminated. Contrary to what DEA alleges, Tseng

testified in her last week at DEA Smith had “made progress” in providing the information

he requested. Further, he stated that the only issue Tyler seemed to have with Smith was

42 that she “didn’t come in the office.” He was told later that Smith’s termination was a

“management decision.” J.A. 1637–39. And although Quinn gave Barnhart no reason for

revoking Smith’s security clearance, he believed that it was because she did not report to

work daily to DEA headquarters. As for Tyler, email correspondence reveals that with

Tyler’s blessing and oversight, Barnhart had already intended to dismiss Smith—after

Quinn learned of Smith’s EEO complaint and before Quinn revoked her clearance. These

facts undermine the credibility of DEA’s allegations and call into question the proffered

reasons for her termination.

V.

For the foregoing reasons, we affirm the judgment of the district court as to Smith’s

disability discrimination claim but vacate the court’s decision regarding her retaliation claim

and remand the issue to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

43