United States District Court, D. Maryland, Southern Division
PAUL W. GRIMM, District Judge.
Plaintiff has brought this failure-to-accommodate claim under the Americans with Disabilities Act against Defendant, her employer, alleging that she was discriminated against on the basis of a disability when she was denied a particular position on the basis of a failed background investigation and, instead, was placed in a similar position that she found less desirable. According to Plaintiff, the failed background investigation was a mere pretext and her current job provided less desirable conditions of employment. Defendant has moved for summary judgment arguing, inter alia, that the position offered to Plaintiff was a reasonable accommodation and presenting evidence to show that the pay and benefits that Plaintiff has received are identical to those she would have received in her desired position. Because Plaintiff does not dispute the facts presented by Defendant, I grant Defendant's motion.
When considering a motion for summary judgment, the court must view "the evidence and all reasonable inferences therefrom in favor of the nonmovant." Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir. 2012). In this case, despite Plaintiff's protestations to the contrary, there are no disputed material facts.
Prior to 2009, Plaintiff Anithia Rhodes was employed as a correctional officer with the Montgomery County Department of Corrections and Rehabilitation Services ("MCDCR"). Am. Compl. ¶ 1, ECF No. 23; Answer ¶ 1, ECF No. 25. On September 24, 2009, Rhodes suffered an injury during a training exercise, after which she was unable to return to her normal duties as a correctional officer. Am. Comp. ¶¶ 11-12; Answer ¶¶ 11-12. It appears from the record that Rhodes was not able to work at all between September 2009 and either October or November 2010. See Rhodes Aff. ¶ 2, Pl.'s Mot. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Summ. J. Opp'n") Ex. A, ECF No. 35-2 (stating that Rhodes began a light duty assignment in October 2010).
According to the collective bargaining agreement (the "CBA") between Defendant Montgomery County, Maryland (the "County") and the Municipal & County Government Employees Organization, United Food and Commercial Workers, Local 1994 ("MCGEO"), where an "employee is temporarily unable to perform his/her normal duties due to medical reasons, " CBA § 33.2, Def.'s Mem. of Grounds and Auths. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Summ. J. Mem.") Ex. 1, ECF No. 34-2, she might be placed on "Light Duty, " which is "[a] temporary assignment of alternative work that an employee is qualified and able to perform when the employee is temporarily unable to perform his/her duties due to medical reasons, " CBA § 33.1. Because of her injury, Rhodes was placed on a light duty assignment in the Montgomery County Pretrial Supervision Department beginning either in October or November 2010. See Rhodes Aff. ¶ 2 (stating that the assignment began in October); Am. Compl. ¶ 13 (alleging that the assignment began in November). The CBA provides that "[l]ight duty work assignments will not exceed 6 months, " after which "the Employee Medical Examiner shall also recommend whether a reasonable accommodation or other administrative action should be pursued." CBA § 33.3(j).
At some point in the spring of 2011, Rhodes was informed that her light-duty assignment would end on April 11, 2011, and was advised that if she could not return to her normal duties by that date, she should contact Ricky Wright, the Disability Program Manger in Occupational Medical Services, in the County's Office of Human Resources ("OHR"). Rhodes Aff. ¶ 2-3; Wright Aff. ¶ 4. On March 14, 2011, Rhodes requested that she be given additional time in a light-duty assignment until a medical appointment on May 17, 2011, Letter from Anithia Rhodes to Ricky Wright (March 15, 2011), Pl.'s Summ. J. Opp'n Ex. B1, ECF No. 35-3,  but her request was not granted.
On April 19, 2011, Rhodes applied for several vacant positions that she would have been able to perform with her disability, Rhodes Aff. ¶ 5, and informed Wright about her applications on April 20, 2011, id. ¶ 6. Based on the CBA with MCGEO, Rhodes's applications would be given high priority because "disability priority placement trumps [reduction in force] priority" for hiring purposes. Email from Joseph Adler to Ricky Wright et al. (May 9, 2011, 18:25 EST), Pl.'s Summ. J. Opp'n Ex. B3, ECF No. 35-5.
On April 28, 2011, Rhodes met with Wright to discuss her employment options and was given a list of vacancies for which she appeared to be qualified. Rhodes Aff. ¶ 7. Of the vacancies on that list, Rhodes selected job posting IRC1868 as her first choice, id., an Office Services Coordinator ("OSC") position within the police department (the "Police OSC Position"). Job Posting, Def.'s Summ. J. Mem. Ex. 3, ECF No. 34-4. One reason why Rhodes wanted this particular position was her belief that by "taking the position within the Police department... [she] would be able to keep [her] benefits." Rhodes Aff. ¶ 7. Although Rhodes avers that she "was never told [she] needed to submit to a background investigation" and "noted that no background was required" for that position, id., the Job Posting provided as an exhibit to the Defendant's Summary Judgment Memorandum clearly states that "[a]ll positions in Police... require a comprehensive background investigation and/or a drug and alcohol screen, " Job Posting 2.
At this point, Rhodes details a pattern of alleged delay and subterfuge that, according to her, was aimed at ensuring that she did not receive the Police OSC Position. On May 4, 2011, Rhodes was urged to consider other positions even though she had not received a response to her application for the Police OSC Position and, that afternoon, was asked if she could come in for an interview on less than two hours' notice. Rhodes Aff. ¶ 8. At her interview, Rhodes claims that she was asked about other positions and shifts for which she had not applied. Id. ¶¶ 9-10. However, Rhodes was offered the Police OSC Position contingent upon passing a background investigation. Walker Aff. ¶ 8, Def.'s Summ. J. Mem. Ex. 4, ECF No. 34-5. Rhodes heard nothing over the next few weeks even as she began to run out of paid leave time. Id. ¶¶ 12-13. Finally, Rhodes was contacted on May 26, 2011 to begin her background check; her background check materials were submitted on May 27, 2011. Id. ¶¶ 14-15. Rhodes did not anticipate any problems with her background investigation as she had routinely passed periodic investigations during her time employed with MCDCR. Id. ¶ 22. Despite at least one attempt to follow up, Rhodes heard no response until July 18, 2011, when she met with the background investigator to provide fingerprints and was informed that the investigation would be completed by July 20, 2011. Id. ¶¶ 17-18.
On July 27, 2011, Wright contacted Rhodes to inform her that that there were problems with her background investigation. Id. ¶ 19. According to Assistant Chief Luther Reynolds, who would have been Rhodes's immediate supervisor in the Police OSC Position, Rhodes was considered unsuitable for the position because she "had immediate family members residing with her with significant contacts with the law." Reynolds Aff. ¶ 12, Def.'s Summ. J. Mem. Ex. 8, ECF No. 34-9. Rhodes acknowledges that her spouse has a criminal history. See Pl.'s Opp'n 11 ("Plaintiff has always been candid in disclosing that her spouse had a criminal history."). Rhodes repeatedly asked Wright about the status of the Police OSC Position, but did not receive any response, see Rhodes Aff. ¶¶ 20-21, 25-26, and she maintains that she never was informed officially that she had not received the Police OSC Position, see Am. Compl. ¶ 31, ECF No. 23. At the very least, the documentary evidence suggests that there may have been miscommunications over who was to inform Rhodes that she did not receive the Police OSC Position. See Email from Jacqueline LaRocca to Melissa Davis et al. (Jan. 31, 2012, 12:13 EST), Pl.'s Summ. J. Opp'n Ex. B5, ECF No. 35-7.
In August 2011, Rhodes received an interview for an OSC position in the Office of Human Resources (the "OHR OSC Position"), which she accepted on August 16, 2011. Rhodes Aff. ¶¶ 20, 23. At the time, Rhodes believed that the OHR OSC Position was only temporary because she had not heard otherwise, and she only accepted the position because she had almost exhausted her donated leave and would lose her health coverage through the County otherwise. Id. ¶ 23. As of at least April 2014, Rhodes remained employed in the Office of Human Resources in Montgomery County, Beckley Aff. ¶ 11, Def.'s Summ. J. Mem. Ex. 9, ECF No. 34-10, and it appears from the record that she remains in the OHR OSC Position.
Although she remains employed, Rhodes contends that being placed in the OHR OSC Position instead of the Police OSC Position constitutes employment discrimination for several reasons. First, Rhodes argues that, although Montgomery County policies require that she keep the same salary for two years after being reassigned due to her disability, after the end of two years, "the department director must downgrade the disabled' employee's base salary to the maximum for that pay grade of that employee's position." Pl.'s Summ. J. Opp'n 7; see also Regulations Excerpt, Pl.'s Summ. J. Opp'n Ex. D, ECF No. 35-10. Although Rhodes was compensated at grade 22 in MCDCR, the OHR OSC Position placed her at grade 16. See Rhodes Aff. ¶ 27; Pl's Resp. to Def.'s First Interrogs. ¶ 13, Pl.'s Summ. J. Opp'n Ex. E, ECF No. 35-11.
However, Rhodes acknowledges that, despite her concerns, she received several salary increases in 2012 and 2013, including a temporary 10% increase from October 2012 to July 2013 and a 3.5% increment in July 2013 along with a separate promotion that did not come with a pay increase. Rhodes Aff. ¶¶ 28-29. Kaye Beckley of OHR has provided an affidavit providing some more precise figures. First, Beckley explains that Rhodes's original salary of $55, 612 in MCDCR was within the range provided for an OSC of grade 16 (which went up to $61, 498), so that her salary would not have been reduced as a result of the decrease in grade. 2d Beckley Aff. ¶¶ 7, 9, Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Def.'s Summ. J. Reply") Ex. 2, ECF No. 36-2. Beckley further avers that Rhodes actually received an increase in her pay grade due to a reclassification of the OHR OSC Position, id. ¶ 7, which resulted in her receiving her 3.5% "service increment" in July 2013, nearly a year prior to when she otherwise would have been eligible for that increase, as well as a "general wage adjustment" under the MCGEO CBA in 2013. Id. ¶ 10. As of May ...