Israelitt v. Enter. Servs. LLC

78 F.4th 647

Jeffrey B. ISRAELITT, Plaintiff - Appellant, v. ENTERPRISE SERVICES LLC, Defendant - Appellee,andHewlett Packard; Hewlett-Packard Company; Hewlett-Packard Enterprise Company;HP Inc.; DXC Technology Company; DXC Technology Services LLC;NETIQ Corporation, Trading as Micro Focus, Defendants.Equal Employment Opportunity Commission, Amicus Supporting Appellant.

No. 22-1382

United States Court of Appeals, Fourth Circuit

Argued: March 9, 2023

Decided: August 16, 2023

Appeal from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:18-cv-01454-SAG)

ARGUED: Levi S. Zaslow, HIJAZI, ZASLOW & CARROLL, P.A., Bowie, Maryland, for Appellant. James P. Driscoll-MacEachron, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix, Arizona, for Amicus Curiae. Heather Folsom Crow, KULLMAN LAW FIRM, Tallahassee, Florida, for Appellee. ON BRIEF: Allison A. Fish, KULLMAN LAW FIRM, New Orleans, Louisiana, for Appellee. Gwendolyn Young Reams, Acting General Counsel, Jennifer S. Goldstein, Associate General Counsel, Anne Noel Occhialino, Acting Assistant General Counsel, Appellate Litigation Services, Office of General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.

Before KING and RICHARDSON, Circuit Judges, and Joseph DAWSON III, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge King and Judge Dawson joined.

RICHARDSON, Circuit Judge:

While working an IT position at Enterprise Services LLC, Jeffrey Israelitt says he was discriminated against because he has disability—an arthritic big toe. It's true that his brief stint at the company was mired with issues. The company says the issues arose because Israelitt didn't work well with others, and actually, didn't work much at all. Israelitt says the issues arose because of his alleged disability. After he was fired, he brought claims under the Americans with Disabilities Act asserting that Enterprise Services discriminated against him because of his toe and retaliated against him for seeking toe-related accommodations.

Those claims failed at various stages before the district court. At the summary-judgment stage, the district court held that Israelitt does not have a "disability," and so it rejected every claim except retaliation. For the retaliation claim, the district court held that Enterprise Services's only potentially retaliatory act was firing Israelitt and allowed him to take that claim to trial. But Enterprise Services moved to strike Israelitt's jury-trial demand. And, after reasoning that the Seventh Amendment does not guarantee a jury trial for ADA-retaliation plaintiffs, the district court granted the motion. Following the bench trial, the district court entered judgment for Enterprise Services on the remaining claim because Israelitt failed to prove he was fired because he asked for disability accommodations.

Israelitt primarily raises three issues on appeal. First, he says that the district court misinterpreted the ADA when holding he is not "disabled" by relying on an outdated EEOC regulation. But Israelitt is not "disabled" under any reasonable interpretation of the ADA. Second, he says that the district court misstated the level of harm required for a retaliatory adverse action. Not so. Burlington Northern—which the district court applied—makes clear that a retaliation plaintiff must suffer "significant" harm, which comes from a "materially adverse" action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Third, he relies on a convoluted theory of statutory interpretation to argue that ADA-retaliation plaintiffs are guaranteed a jury trial by the Seventh Amendment. To the contrary, a straightforward reading of 42 U.S.C. § 1981a(a)(2) says otherwise. So we affirm the district court.

I. Background

Enterprise Services¹ hired Israelitt as a Senior Information Systems Security Architect, or in plain English, a high-level IT worker focused on cybersecurity. He had two main tasks: (1) conduct risk assessments for a product Enterprise Services was pitching to the Department of Homeland Security and (2) prepare a technology roadmap reviewing products in Enterprise Services's market space. But things did not go well during Israelitt's seven-month stint at the company.

The first major issue involved a customer-focused conference hosted by the company. The conference was a platform for Enterprise Services to showcase its products to customers. Customers attended for free. Employees, on the other hand, only attended if needed, in which case they were given passes or allocated funding to pay the registration fees. Israelitt's team—the Cybersecurity Solutions Group—requested that several members, including Israelitt, attend. While that was in the works, an employee working on the event sent Israelitt and a few co-workers a customer code, allowing them to register for free.

After he was registered, Israelitt decided he wanted to stay at the event venue—a downtown D.C. hotel—rather than commute from his home in Glen Burnie, Maryland. He thought commuting risked aggravating his toe condition. So he tried to reserve a room, but the hotel was fully booked. He then contacted event staff and obtained a hotel room reserved for handicapped patrons. Around the same time—and possibly because the communications stirred a closer review of his registration—event staff flagged that Israelitt had improperly registered using a code reserved for customers.

This created issues for the employees who used the customer code, as they would "likely [ ] be turned down" from attending the event. J.A. 782. In the fallout, there was a scramble to determine whether the employees could still attend. During that time, Israelitt became adamant about going and began pestering his supervisor, George Romas. There was confusion about how the situation would resolve, and even when it appeared that the co-workers were cleared for attendance, questions remained about Israelitt. Israelitt was not happy, and he escalated things. He leveled accusations that his "medical/disability info" was the reason he could not attend. J.A. 780. But the Enterprise Services employee working on the event told a different story: Israelitt had feigned a disability for preferential treatment from the hotel. See J.A. 779 (claiming that Israelitt himself said he "really isn't handicapped but has a sore toe that he feels he can claim as a handicap"). Eventually, Romas stepped in. Although the exact resolution reached is unclear, by the end of a forty-five-minute phone call, Israelitt agreed to not attend the conference and "keep his mouth shut." J.A. 778.

Israelitt's issues didn't end with the conference. He also had more mundane, interpersonal issues. He often hijacked a daily team call to air his grievances. He would then follow up on those grievances in lengthy emails to Romas. What's worse, he wasn't productive. Romas did his best to account for these shortcomings. He removed Israelitt from the daily calls, which Israelitt had "[n]o problem with." And he transitioned Israelitt to focusing on the technology roadmap, a longer-term project that he could work on under the tutelage of a more senior co-worker.

Things got a bit better, and Israelitt received a decent performance review. Still, interpersonal problems remained. As the review itself noted: Israelitt "has had a challenge adjusting" and "can be aggressive" so he "will be mentored and counseled on more diplomatic ways to communicate." J.A. 745. And his productivity didn't see a massive turnaround either. When Israelitt presented his progress on the technology roadmap a month later, he didn't have much to show.

While Israelitt kept working on the roadmap, a second major issue occurred. This one involved a company trip to Florida. The trip was intended to be a team-building trip for the Cybersecurity Solutions Group and was paid for by billing to the Department of Homeland Security account. During the planning stages, Israelitt became concerned over the amount of walking the trip involved. So—without indicating why in the request—he asked to be listed as an additional driver on the rental vehicle. Soon after, Israelitt was effectively removed from the Department of Homeland Security project (when he was told to no longer bill to that client). Then, he was told that he would no longer go to Florida.

A month later, Romas sent Israelitt a formal performance warning. It gave Israelitt thirty days to "demonstrate immediate and sustained improvement by successfully completing" the technology roadmap. J.A. 623. At the end of the thirty-day period, Israelitt had made no meaningful progress and was fired.

He then sued under the ADA, demanding a jury trial to resolve his claims of discrimination, wrongful discharge, denial of reasonable accommodations, hostile work environment, and retaliation. His complaint describes his disability as "musculoskeletal issues" generally. J.A. 15. Yet the only impairment really at issue is his toe condition. To be precise, Israelitt has hallux rigiditis, which causes "degenerative changes at the metatarsophalangeal joint" and "calcaneal bone spurs" in his right big toe. J.A. 517. Nearly two decades before his employment at Enterprise Services, he twice had surgery to remove bone spurs from the toe. The condition can be painful, and Israelitt used shoe inserts and had a State of Maryland disability parking pass. But aside from the parking pass² and shoe inserts, the evidence that Israelitt was impaired by his toe condition was remarkably limited. He offered no evidence of medical care for the condition for over a decade. And he did not use any assistive device to walk. To the contrary, he walked unassisted for exercise several times a week, up to 30 to 45 minutes each time.

Following discovery,...