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Allen v. Baltimore County

United States District Court, D. Maryland

March 17, 2015

ALFRED ALLEN, JR.
v.
BALTIMORE COUNTY, MARYLAND

Page 723

For Alfred Allen, Jr., Plaintiff: Kathleen M Cahill, LEAD ATTORNEY, Law Offices of Kathleen M Cahill, Towson, MD USA.

For Baltimore County, Maryland, Defendant: Bambi C B Glenn, Lutherville, MD USA; James J Nolan, Jr, Baltimore County Office of Law, Towson, MD USA.

Page 724

MEMORANDUM

Catherine C. Blake, United States District Judge.

Alfred Allen, Jr. filed this lawsuit against Baltimore County (" County" ) for alleged violations of the Americans with Disabilities Act (" ADA" ). Allen claims the County wrongfully terminated him from his position as a correctional officer at the Baltimore County Detention Center (" Detention Center" ). He also claims the County subjected him to medical examinations and inquiries prohibited by the ADA. Presently pending is a motion for summary judgment filed by Baltimore County. For the reasons stated below, the motion will be granted as to Allen's illegal medical examination/inquiry claim but denied as to his illegal discharge/demotion claim.

BACKGROUND

In 2000, Allen was diagnosed with sarcoidosis, an inflammatory disease that causes the growth of lesions anywhere in the body, including the eyes, sinuses, ears, brain, lungs, heart, kidneys, joints, muscles, and skin. (Def.'s App., George Dep. 4, App. 185; Def.'s App., New Patient History and Physical, App. 208.)[1] Because Allen's sarcoidosis affected practically all of these body parts, Allen's was considered a " severe" case. (Pl.'s App., George Dep. 15.) But Dr. Stephen W. George, his treating rheumatologist, told Allen that, " with medication . . . [he] would be okay." (Def.'s App., Allen Dep. 16, App. 266.)

In 2001, Allen began working as a correctional officer at the Detention Center. ( Id. at 5, App. 264.) He remained in that position until early 2011, when the demotion at the center of this litigation occurred. During his ten-year tenure as a correctional officer, Allen generally performed his duties satisfactorily and without any disciplinary incidents. ( See, e.g., Pl.'s App. Ex. 4, Employee Performance Evaluation Form, Nov. 2010 (rating Allen " Successful" in all six correctional officer " Core Competencies" ).) In the eyes of Deborah Richardson--the Detention Center's then-Deputy Director and present Director--Allen was a " man of integrity" and a " good correctional officer." (Pl.'s App., Richardson Dep. 13, 93.)

But Allen's job performance suffered due to his sarcoidosis. On two occasions, Allen's sarcoidosis flared up so badly that he needed to take leave from his job. (Allen Aff. ¶ ¶ 2, 4.)[2] The first flare-up occurred

Page 725

in 2006. In January of that year, Allen experienced " severe back and lower extremity pain" as well as an " inability to walk." (Def.'s App., George Letter to Wicks, Feb. 1, 2006, App. 211.) Allen was admitted to the intensive care unit and was later discharged with antibiotics, and apparently in a wheelchair. ( See id.; Def.'s App., George Dep. 117, App 205a.) Soon thereafter, Dr. George examined Allen and observed that the " serious illness" he had experienced was " due to neurosarcoidosis" and that the disease's effect on his " brain, mid-brain, and spinal cord . . . most likely account[ed] for his rapid functional impairment . . . ." (Def.'s App., George Letter to Wicks, Feb. 1, 2006, App. 212.) To remedy these symptoms, Dr. George prescribed Decadron to Allen. ( Id.) Based on his exchanges with Dr. George, Dr. Kanthi Wickramaratne,[3] Allen's long-time primary care doctor, certified Allen for leave under the Family and Medical Leave Act (" FMLA" ), which the County granted effective January 5, 2006. (Def.'s App., Allen Dep. 57, App. 271; Def.'s App., County Timeline of Events, App. 62.) Allen does not dispute that he could not perform his correctional officer job when he was " sick" at this time. (Def.'s App., Allen Dep. 19, App. 267.)

The Decadron therapy proved effective. Two weeks after he began that treatment, Allen " showed marked improvement" : he had " rapid increase in strength, coordination, [and] motor skills; there was a " decrease in ocular and head pain'; and he " no longer need[ed] [a] wheelchair or cane . . . ." (Def.'s App., George Letter to Wicks, Feb. 15, 2006, App. 213.) During a second follow-up examination two weeks later, Dr. George noted Allen had " shown excellent response to Decadron therapy and has improved strength and coordination. . . . He is remarkably improved." (Def.'s App., George Letter to Wicks, Mar. 1, 2006, App. 214.) By March 28, 2006, Allen had returned to work. (County Timeline of Events.) With the help of his doctors, Allen continued to monitor his sarcoidosis by making regular preventive care visits. ( See, e.g., Def.'s App., Wicks Office Visit, Aug. 21, 2007, App. 140; Def.'s App., Wicks Office Visit, May 14, 2009, App. 144.)

The second flare-up occurred in 2010--and it was this flare-up that initiated the sequence of events that led to this lawsuit. At some point in May of that year, Allen began experiencing " problems with his gait," a feeling of being " off balance[,]" and weak legs. (Def.'s App., George Letter to Wicks, June 3, 2010, App. 216.) Dr. Wicks again certified Allen for leave under the FMLA, stating that Allen was " unable to perform any work" because of " leg edema, knee pain and unsteady gait" linked to his " chronic medical problems with sarcoidosis." (Def.'s App., FMLA Certification 2, App. 71.) The County granted this request effective May 5, 2010. (County Timeline of Events.) Dr. Wicks continued to evaluate Allen's condition about every four weeks, and recommended that Allen be " off work" at least through July.[4] (Def.'s App., Medical Status, June 29, 2010, App. 135.) At the end of that month, however, Dr. Wicks approved Allen to return to work on light duty, effective August 1.

Page 726

(Def.'s App., Medical Status, July 26, 2010, App. 136.)

On August 1, 2010, Allen returned to the Detention Center, this time on light duty. Allen was assigned to a housing unit pod as a " pod control officer." (Def.'s App., Allen Dep. 72, App. 275.) This meant he was in " a bubble" where " [his] duties were to observe [inmates] and watch and document activities." ( Id.) At all relevant times, the County had no policy limiting the duration of a light duty assignment. (Pl.'s App., Gay Dep. 111.)

Throughout most of this new assignment, Allen performed satisfactorily and without any issues. ( See Pl.'s App., O'Neill Dep. 108-09; Allen Aff. ¶ 6.) That apparently changed in early December of 2010, when then-Director James P. O'Neill allegedly observed Allen taking " approximately 10 minutes" to " walk approximately sixty (60) feet" inside the Detention Center's administrative offices. (Def.'s App, O'Neill Decl. ¶ 3, App. 78.) Based on this observation--and in light of his experience in corrections--O'Neill " became concerned for [Allen's] safety as a Correctional Officer" ; O'Neill " did not feel that [Allen] would be able to defend himself if he were attacked by an inmate." ( Id.) As a result, O'Neill instructed a management analyst to email Lee Anne Bronson in the County's human resources department with a request that Allen be directed to undergo a fitness-for-duty examination. ( Id. ¶ 4, App. 78; Def.'s App., Bruno Email to Bronson, Dec. 17, 2010, App. 81.) Soon thereafter, Allen received a letter dated December 20, 2010, instructing him to report to the office of Dr. Peter Oroszlan, the County's occupational medical advisor, on January 11, 2011, for a fitness-for-duty examination. The letter stated that such an examination was necessary because " [he] h[ad] exhausted [his] FMLA benefits" and " [t]o determine if [he] c[ould] safely and reliably perform [his] job duties." (Pl.'s App. Ex. 5, Fitness For Duty Order.)

Shortly thereafter, on December 22, 2010, Allen returned to see Dr. George. (Pl.'s App. Ex. 11, George Letter to Wicks, Dec. 22, 2010.) Dr. George began by noting that he " ha[d] not seen Mr. Allen for 6 months." Dr. George concluded that the " progressive weakness in both legs" that Allen had been experiencing was connected to his sarcoidosis. ( Id.) He thus started Allen on Decadron therapy, as he had done in 2006. ( Id.) Although he " anticipate[d] improvement in [Allen's] symptoms[,]" Dr. George believed Allen " ha[d] had significant atrophy as a result of his delay in reporting [his] worsening symptoms." ( Id.) Nothing in the record suggests Allen told Dr. George about the fitness-for-duty examination at this time.

Meanwhile, on or around December 29, 2010, Major Bruce Flanigan ordered Allen to resume full duty, ( see Pl.'s App., Flanigan Dep. 44-45; Pl.'s App., Howdyshell Dep. 29), even though there is no evidence that either Dr. Wicks or Dr. George had approved that change. Allen complied with the order by " continu[ing] the same pod assignment and simply resum[ing] . . . the additional full-duty functions" of a correctional officer. (Allen Aff. ¶ 13.)

On January 11, 2011, Allen went to Dr. Oroszlan, who conducted the fitness-for-duty examination. In his independent medical evaluation (" IME" ), Dr. Oroszlan noted he had " only 10 pages of medical records available for review," and those pages showed Allen's history only since February 18, 2010. (Def.'s App., Oroszlan IME 1, App. 86.) Dr. Oroszlan's " Summary Assessment" section included two relevant conclusions. First, in light of " the class specification for Correctional Officer[,]" Allen was " unable to perform all the job-related functions of a Correctional

Page 727

Officer safely, consistently, and reliably and without undue harm to himself and others." ( Id. at 5, App. 90.) Second, " it [wa]s unlikely that [Allen's] overall condition and effort tolerance will significant [sic] improve in the near foreseeable future." ( Id.) Dr. Oroszlan forwarded this IME to the County's human resources department. ( See Def.'s App., Bronson Email to Bruno, Jan. 21, 2011, App. 92.)[5]

After receiving Dr. Oroszlan's IME, the County decided to initiate the process of demoting Allen. On around February 16, 2011, Allen received what the parties have referred to as an " options letter," which stated the following:

[I]t has been determined that you are not capable of performing the essential functions of your position as a Correctional Officer. To that end, you must take one of the following actions:
1) Apply for and be granted a transfer to a position for which qualified, and able to perform; or
2) Resign.
If you do not exercise any of the above options by March 7, 2011, we shall take appropriate action to terminate your employment.

( Pl.'s App. Ex. 13, Options Letter (emphases in original).)[6] On the day he received the letter, Allen called Richardson in protest, asking why he could not keep his position. (Pl.'s App., Richardson Dep. 29-31.) Allen was so distressed that he also had his wife speak to Richardson. ( Id. at 31.) Those pleas failed. Richardson instead told Allen about a vacant correctional commitment specialist position that he could have " if he wanted it." ( Id. at 30-31.) Allen said " he would think about it and get back to [her]." ( Id. at 31.)

Meanwhile, on March 3, 2011, Allen returned to Dr. George and explained he had had " an employment physical during his exacerbation [that] rated him unqualified to do his job." (Def.'s App., George Letter to Wicks, Mar. 3, 2011, App. 220.) Dr. George also noted that Allen was " upset since his symptoms ha[d] resolved with treatment of the exacerbation." ( Id.) Because he saw that Allen's sarcoidosis was " much improved following Decadron treatment[,]" Dr. George stated he would " gladly produce a letter for [Allen's] employer to document his improvement and the expected ability to perform his usual job responsibilities." ( Id.)

On March 7, 2011, Allen accepted Richardson's offer and started working in the new position because of his " need to support [his] family and protect health benefits for [his] family and [him]self . . . ." (Allen Aff. ¶ 18.) The next day, the County asked him to sign a " Request for Voluntary Demotion" that stated, in relevant part: " I am voluntarily demoting from Correctional Officer . . . to Corr[ectional] Commitment Specialist . . . ." (Pl.'s App. Ex. 19, Request for Voluntary Demotion.)

Page 728

" [B]elieving it was a routine administrative form[,]" Allen " signed it without reading it . . . ." (Allen Aff. ¶ 21.) That voluntary demotion became effective as of March 19, 2011. As a result of this demotion, Allen's salary fell by 16.4%,[7] (Def.'s App., Personnel Transaction Form, Mar. 19, 2011, App. 98), his pension eligibility changed, ( see Def.'s App., Dorsey Dep. 10-12), and he was forced to " work a different shift that interfered with [his] family responsibilities[,]" (Allen Aff. ¶ 18).

On April 4, 2011, Dr. George faxed a letter regarding Allen's condition to the County's human resources department. (Pl.'s App. Ex. 18, George Letter to County, Apr. 2, 2011.) Dr. George noted Allen's history of " intermittent exacerbations" of sarcoidosis, but also stated that Allen had " responded well to [their] management . . . with full recovery of functional capacities after each exacerbation." ( Id.) Although he agreed with Dr. Oroszlan's assessment that, as of January 11, 2011, Allen had " functional limitations[,]" Dr. George described as " incorrect" Dr. Oroszlan's conclusion that the limitations " were chronic and that the condition would not likely improve in the foreseeable future." ( Id.) He specifically noted that the Decadron prescribed three weeks earlier had " resulted in a gradual and progressive resolution of all disease features." ( Id.) Because he had " [o]ver the past ten years . . . documented repeatedly" the way Allen's exacerbations would " resolve completely with adjustment in his . . . medication[,]" Dr. George requested that Allen undergo a " follow-up IME, as soon as possible," so that Allen " c[ould] be reinstated . . . as a Correctional Officer." ( Id.)

Upon receiving Dr. George's letter, George Edward Gay--the County's human resources director--" did nothing." (Pl.'s App., Gay Dep. 79.) In Gay's view, because Allen " had already accepted a voluntary demotion[,]" there could be " no reinstatement back up to a correctional officer" position. ( Id.) Gay did not respond to Allen in any way at this time. ( See Id. at 81.) Allen continued as a correctional commitment specialist.

On November 17, 2011, Allen filed a charge of discrimination with the EEOC. (Pl.'s App. Ex. 22, EEOC Charge of Discrimination.) Before the County had filed its position statement in response to that charge, Allen received a letter dated February 3, 2012, from O'Neill stating that he " ha[d] been scheduled . . . for a fitness for duty examination." (Pl.'s App. Ex. 23, Fitness for Duty Order & Response, at County.000025.) O'Neill's letter stated no basis or reason for the examination. ( See id.) On February 8, 2012, Allen responded, noting that, because he " ha[d] not missed a day of work over the past year and [his] performance ha[d] been favorably reviewed[,]" there was " no legal basis for requiring [him] . . . to be examined by the County's doctor." ( Id. at County.000028.) Allen thus asked O'Neill to " rescind th[at] letter." ( Id.) Two days later, O'Neill replied, stating he " c[ould] grant [Allen's] request." ( Id. at County.000026.) O'Neill clarified that the appointment scheduled with the County's rheumatologist " was for the purpose of determining if [Allen] could perform the duties and responsibilities of a correctional officer." ( Id.) In his next email, Allen said he was " quite surpris[ed]" by O'Neill's response because the original letter " made no mention at all of

Page 729

[Allen's] right to [his] correctional officer position." ( Id. at County.000029.) He continued: " If you are offering to return me to my position, please contact the EEOC or . . . my lawyer . . . ." ( Id.) On February 21, 2012, O'Neill confirmed to Allen that the examination had been cancelled, without acknowledging Allen's prior response. ( Id. at County.000030.)

Nearly a year and a half later, on September 3, 2013, Allen received a right-to-sue letter from the EEOC. (Def.'s App., Notice of Right to Sue, App. 113.) He filed this lawsuit on October 15, 2013. As part of this litigation, on February 18, 2014, the County examined Allen pursuant to Federal Rule of Civil Procedure 35. (Pl.'s App. Ex. 25, Morris Rule 35 Examination Report, at 2.) The County's rheumatologist, Dr. Edward J. Morris, concluded that Allen " ha[d] well-controlled sarcoidosis" and " no limitations at this time that would prevent him from informing the essential functions of a Corrections Officer." ( Id.)[8] On June 18, 2014, Richardson " suddenly summonsed" Allen into her office and informed him that he would be reinstated as a correctional officer, (Allen Aff. ¶ 23), apparently because it had recently " dawned on [Richardson] that [reinstating Allen] [wa]s something that [she] c[ould] do[,]" especially given the number of vacant correctional officer positions in the County, (Pl.'s App., Richardson Dep. 17-19).[9] Because Allen's correctional officer certification had lapsed, Richardson sought and received a waiver of the County's requirement that new correctional officers go through the training academy. (Def.'s App., Richardson Email to Liebno, June 18, 2014, App. 308.) Effective June 23, 2014, Allen was once again a correctional officer in the County, (Pl.'s App. Ex. 26, Flanigan Email, June 20, 2014), with " the full pay and benefits of that position[,]" (Pl.'s App. Ex. 27, County Letter to Cahill, June 18, 2014). On October 9, 2014, the County moved for summary judgment.

ANALYSIS

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted " 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." Fed.R.Civ.P. 56(a) (emphases added). " A dispute is genuine if 'a reasonable jury could return a verdict for the nonmoving party.'" Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)), cert. denied, 134 S.Ct. 681, 187 L.Ed.2d 549 (2013). " A fact is material if it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Accordingly, " the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Anderson, 477 U.S. at 247-48. The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam),

Page 730

and draw all reasonable inferences in that party's favor, Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, No. 13-2212, 2015 WL 1062673, at *4 (4th Cir. Mar. 12, 2015). At the same time, the court must " prevent factually unsupported claims and defenses from proceeding to trial." Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 2003)).

Allen makes two claims: the County illegally discharged him from his correctional officer position because of his disability,[10] and the County conducted medical examinations and inquiries that violated the ADA. The court considers each claim in turn.

I. ADA Illegal Discharge/Demotion Claim

Allen argues the County violated the ADA by " discharging [him] from his correctional officer position because of his disability" even though he was a qualified individual who was fully able to perform his essential job functions. (Compl. ¶ 32.) The ADA makes it illegal for an employer to " discriminate against a qualified individual on the basis of disability . . . ." 42 U.S.C. § 12112(a). To prove disability discrimination, Allen must show: (1) he had a disability; (2) he was a " qualified individual" who was able to perform the essential functions of his job; and (3) the County took an adverse action against him because of his disability. Jacobs, 2015 WL 1062673, at *7; see also Young v. United Parcel Serv., Inc., 784 F.3d 192, 198 (4th Cir. 2013), cert. granted, 134 S.Ct. 2898, 189 L.Ed.2d 853 (2014); Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997). The County does not concede any of these elements. Because, however, the undisputed record reflects that Allen had a disability and genuine disputes exist as to the two remaining elements, the court will deny summary judgment on this claim.

A. Disability

The record reflects that, at all relevant times, Allen had a disability that placed him within the ADA's protected class. To receive the ADA's protections, a plaintiff must prove that he has a " disability" --i.e., that he has, had, or is regarded as having " a physical or mental impairment that substantially limits one or more major life activities . . . ." 42 U.S.C. § 12102(1); see also 29 C.F.R. § 1630.2(g). Importantly, because the allegedly unlawful acts at issue here occurred after January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (" ADAAA" ) applies.[11] Under the ADAAA, " [t]he definition of disability . . . shall be construed in favor of broad coverage . . . to the maximum extent permitted by the terms of [the ADA]." 42 U.S.C. § 12102(4)(A); see also Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014) (describing Congressional intent behind and impact of ADAAA); Johnson v. Balt. City Police Dep't, Civ. No. ELH-12-2519,

Page 731

2014 WL 1281602, at *14-15 (D. Md. Mar. 27, 2014) (same).[12]

In light of these changes, Allen plainly had a disability within the ADA's meaning. Since at least 2000, Allen has had a serious medical condition--sarcoidosis--that has affected his immune system. When the symptoms caused by his condition flared up, he experienced serious physical impairment to a variety of his bodily functions and organs, including his legs, back, neck, and sinuses. ( See, e.g., Def.'s App., George Letter to Wicks, Feb. 1, 2006, App. 211.) And the record reflects that such impairment imposed on Allen substantial limitations on major life activities such as walking, standing, and working. Allen's impairment was " sufficiently severe[.]" Summers, 740 F.3d at 330; see also id. (stating that " [t]he text and purpose of the ADAAA and its implementing regulations make clear" that an impairment that leaves one " unable to walk . . . can constitute a disability" ).

The County responds that Allen's sarcoidosis-related symptoms do not constitute a disability because they appeared only as occasional flare-ups. In the County's view, such episodic impairments do not suffice. This argument fails for two reasons. First, it ignores the ADAAA's explicit statement that " an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(D); see also Summers, 740 F.3d at 333 (" Under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary." ). That is precisely the case here; when active, Allen's sarcoidosis unmistakably constituted a disability. See Summers, 740 F.3d at 330 (reversing district court's holding that plaintiff's " temporary injury could not constitute a disability" ); Hodges v. District of Columbia, 959 F.Supp.2d 148, 154 (D.D.C. 2013) (holding that post-ADAAA plaintiff's ADA claim--which alleged that a herniated disc and lumbar disc bulge substantially limited his ability to sit, work, and engage in other major life activities--was not barred by " the fact that [his] impairment was expected to be temporary . . . ." )). Second, even had the ADAAA not applied here, the impairment would still suffice. As pre-ADAAA case law shows, the episodic impairments Congress intended to fall beyond the ADA's scope involved truly transitory impairments such as those resulting from surgery or a temporary back injury, see Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 468-69 (4th Cir. 2002) (collecting cases showing " temporary impairments" ), and not a chronic condition like Allen's. As Dr. George noted, " [w]e're talking about two different things []here" --Allen's condition is " chronic[,]" even if the impairment caused by it is not. (Pl.'s App., George Dep. 30.) Allen's exacerbated sarcoidosis is a disability within the ADA's meaning.

B. Qualified Individual

Whether Allen is a qualified individual is a closer question, but Allen has raised a genuine dispute on this issue. To be a qualified individual, a plaintiff must prove that he " can perform the essential functions of the employment position that such individual holds or desires[,]" and that he can do so " with or without reasonable accommodation[.]" 42 U.S.C. 12111(8); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 396, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). The County argues Allen

Page 732

could not perform the essential job functions of a correctional officer. Further, the County asserts the defense that Allen " pose[s] a direct threat to the health or safety of other individuals" at the Detention Center. 42 U.S.C. § 12113(b). Neither argument succeeds.

1. Essential Job Functions

A genuine dispute exists as to whether Allen could perform his essential job functions--" i.e., functions that bear more than a marginal relationship to the job at issue." Tyndall v. Nat'l Educ. Ctrs. of Cal., 31 F.3d 209, 213 (4th Cir. 1994). " In determining which job functions are essential, " consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description . . . for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8).[13] According to the County's class specification, a correctional officer's responsibility is to " maintain[] care and custody of inmates, security, and order on and off the property of the Baltimore County Department of Corrections." (Def.'s App., Correctional Officer Class Specification, App. 99.) Examples of " essential duties" include " [a]ssist[ing] in the receiving or discharging of inmates[,]" " [p]atrol[ling], on foot, the internal and external perimeters of the Institution," " [m]aintain[ing] discipline and orderly conduct[,]" " [b]reak[ing] up fights among inmates[,]" and " [u]s[ing] appropriate self-defense tactics to deflect assault by inmates." [14] ( Id.)

It is true that, without reasonable accommodation, Allen was not a qualified individual during the relevant time period. Allen himself concedes he was " [u]nable" to perform the essential job functions of his position for a period of time beginning on May 5, 2010, the day his FMLA leave began. (Def.'s App., Allen Dep. 69-70.) And the record reflects that he was unable to walk or even stand while his exacerbated symptoms existed, ( see, e.g., Wicks Office Visit Report, July 26, 2010, App. 169 (" Still can't stand for too long." )), which would render him unable to fulfill the essential functions of a correctional officer.

But a genuine dispute exists as to whether Allen was qualified with reasonable accommodations. Allen has presented evidence showing he responded positively to Decadron.[15] In fact, as a result of that regimen, essentially all of the sarcoidosis symptoms that had prevented Allen

Page 733

from performing the essential job functions of a correctional officer dissipated--and rapidly. Had he been given the opportunity to take such medication--along with time for that medication to take effect--Allen very well may have been a qualified individual. See Jacobs, 2015 WL 1062673, at *17 (concluding that plaintiff had established genuine dispute as to whether she was qualified when " a reasonable jury could conclude that [plaintiff's negative] behaviors were manifestations of [her] performance anxiety and were unlikely to reemerge had the accommodation [at issue] been granted." ). The County could have provided Allen that opportunity by letting him remain on light duty, use accrued leave, or apply for discretionary leave. And any of these accommodations would have been reasonable because, " [f]or purposes of the ADA, 'reasonable accommodations' may comprise 'job restructuring, part-time or modified work schedules,' and 'permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment . . . .'" Wilson v. Dollar Gen. Corp., 717 F.3d 337, 344-45 (4th Cir. 2013) (quoting 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630, App. § 1630.2(o)); see also Jacobs, 2015 WL 1062673, at *16 (noting as reasonable deputy clerk's proposed accommodation " to work fewer days at the counter and more days microfilming or performing other deputy clerk tasks" ).[16]

Yet the County failed to consider--let alone offer--any of these accommodations, and instead opted for what it termed " voluntary demotion." In doing so, the County erred in two main ways.

First, the County did not even engage in an interactive process with Allen regarding the possibility of accommodations. ( See, e.g., Pl.'s App., Gay Dep. 107-08 (" There was no interactive process." ).) The County apparently believes it had no obligation to engage in the interactive process because Allen never formally requested an accommodation. (See Def.'s Mot. Summ. J. 42-43; see also Pl.'s App., Gay Dep. 119 (agreeing that it was County " policy and practice that unless Mr. Allen filled out a form and sent it to [the County] requesting reasonable accommodations, . . . [the County] had no duty to consider reasonable accommodations or offer the interactive process" ).) But Allen was not required to make a formal request to trigger that process. See Wilson, 717 F.3d at 346-47 (" What matters under the ADA [is] . . . whether the employee . . . provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation." (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999))); see also Feldman v. Law Enforcement Assocs. Corp., 779 F.Supp.2d 472, 489 (E.D.N.C. 2011) (" a request for accommodation need not, in all cases, be in writing, be made by the employee, or formally invoke the magic words reasonable accommodation." ) (quoting Parkinson v. Anne Arundel Med. Ctr., 79 F.App'x 602, 604-05 (4th Cir. 2003) (unpublished) (internal quotation marks omitted))).

Even assuming he had been required to make such a formal request, the record reflects he did so by seeking medical leave in May of 2010 for his " chronic medical problems with sarcoidosis." (Def.'s App., FMLA Certification 2, App. 71.) From that point forward, the County had adequate notice of Allen's disability and had a duty to engage in the interactive process. See Summers, 740 F.3d at 331 n.4

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(" [A]n employee's accommodation request, even an unreasonable one, typically triggers an employer's duty to engage in an 'interactive process' to arrive at a suitable accommodation collaboratively with the employee." ); Wilson, 717 F.3d at 346-47.[17] The record shows the County failed to do this. For instance, after observing Allen having difficulty walking, O'Neill did not ask Allen or anybody else about his condition, apparently because O'Neill was " in the middle of several other things." (Pl.'s App., O'Neill Dep. 43-44.) O'Neill further concedes he failed to look at Allen's personnel file, medical file, leave status, or performance reviews before requesting a fitness-for-duty examination. (Pl.'s App., O'Neill Dep. 45-46.) In fact, O'Neill admits he observed Allen engaging in his job only once.[18] ( Id. at 47.) And O'Neill's response was not unique; Flanigan likewise did nothing to explore the history or nature of Allen's condition. ( See Pl.'s App., Flanigan Dep. 33-35 (admitting failure to look into leave status, medical notes, supervisor's evaluations, and performance appraisals).)

The County responds that Allen's " own failure to engage in the 'interactive process' caused the process to break down[.]" (Def.'s Reply 24.) It is true that Allen perhaps not always provided timely and consistent updates on his worsening condition either to his own specialist or to anyone with the County. This lack of communication may have contributed to his deteriorating condition. At the same time, Allen is not a doctor, nor is there any evidence that he withheld information intentionally. Instead, the record reflects that Allen was " unaware that his disease was flaring." (Pl.'s App., George Dep. 16.) Moreover, Allen trusted in Dr. Wicks' expertise and even this doctor failed " to recognize [Allen's] acute sarcoid flare-up . . . ." ( Id. at 121.) Finally, to the extent the County argues it " did not have the full medical picture . . . because [Allen] himself had failed to provide it to the County[,]" (Def.'s Reply 24), such failure did not cause the breakdown because the record shows the County failed even to check Allen's medical file before starting the demotion process.

Second, the County failed to consider less drastic--yet still reasonable--accommodations than " voluntary demotion." The County argues it provided a reasonable accommodation by reassigning Allen to the vacant correctional commitment specialist position. (Def.'s Mot. Summ. J. 42-43.) Although the ADA vests the employer with ultimate discretion over which effective accommodation to provide, reassignment is a " last resort." See Reyazuddin v. Montgomery Cnty., Md., 7 F.Supp.3d 526, 550 (D. Md. 2014) (" Reassignment . . . has traditionally been seen as an 'accommodation of last resort[.]'" ); see also Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F.Supp. 720, 742 (D. Md. 1996) (" [I]t is clear from the statutes and the regulations that accommodation by transfer is to be considered as a last resort." ); accord Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir. 2003) (" [R]eassignment is an option to be considered only after other efforts at accommodation have failed." (internal quotation marks and citations omitted)); Dilley

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v. SuperValu, Inc., 296 F.3d 958, 964 (10th Cir. 2002) (" In reasonably accommodating an employee under the ADA, '[t]he employer should first consider lateral moves to positions that are regarded as equivalent,' and 'may only consider lesser jobs that constitute a demotion if there are no such equivalent positions available.'" (citation omitted)). As noted, the County could have let Allen remain in a light duty position.[19] The County could have let Allen use his accrued leave. And the County could have given Allen the option to seek discretionary leave.[20] Instead, by initiating the " voluntary demotion" process without any substantial inquiry, and without considering other clearly reasonable accommodations, the County failed to honor its obligations to Allen under the ADA.

2. Direct Threat Defense

The County also argues it has carried its burden of showing that Allen constituted a " direct threat" to the health or safety of others at the Detention Center. For two reasons, the County's argument fails. As an initial matter, the County misinterprets the ADA's definition of " direct threat." The ADA defines that term as " a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3) (emphasis added). In other words, an " employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level." Champ v. Balt. Cnty., 884 F.Supp. 991, 998 (D. Md. 1995) (citing 29 C.F.R. § 1630, App. § 1630.2(r)). The County ignores the second half of that definition by failing to consider how reasonable accommodations would have affected any risk Allen posed. And a genuine dispute exists as to whether those risks could have been eliminated by any of the reasonable accommodations noted above.

The County's direct threat defense also fails because the record shows that the County failed to base its determination " on an individualized assessment of [Allen]'s present ability to safely perform the essential functions of [his] job." 29 C.F.R. § 1630.2(r); see also Champ, 884 F.Supp. at 998 (" The decision that an individual creates a direct threat . . . must depend on an individualized assessment of the safety risks the disabled individual actually poses." (citing Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987))). Such an assessment must consider factors such as: " (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm." 29 C.F.R. § 1630.2(r). No such individualized assessment occurred here. Instead, the County relied on suppositions

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and generalizations. The first basis for the County's decision was O'Neill's opinion based on a one-time observation that Allen did not have the ability to perform his job safely. (O'Neill Decl. ¶ 3, App. 78.) The second basis was Dr. Oroszlan's IME, which " offer[ed] nothing more than the generalized, conclusory statements" that Allen could not perform his essential job duties, without once considering " whether the safety concerns could be alleviated by reasonable accommodation." Taylor v. Hampton Roads Reg'l Jail Auth., 550 F.Supp.2d 614, 618-620 (E.D. Va. 2008). The County has not presented enough undisputed evidence to prove direct threat.

* * *

Because a genuine dispute remains as to whether Allen was a qualified individual had he been given a reasonable accommodation, and because the County has not carried its burden of showing Allen constituted a direct threat, summary judgment will not be granted on this issue.

C. Adverse Employment Action

A genuine dispute also remains as to whether the County subjected Allen to an adverse employment action because of his disability by demoting him from correctional officer to correctional commitment specialist. An adverse employment action is one that " adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (alteration in original) (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001)). The " typical" examples are " discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion . . . ." Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). A reassignment is also sufficient if the plaintiff can show that the reassignment had " some significant detrimental effect on her." Id. at 256.

The record reflects Allen suffered an adverse employment action here. That he was demoted is sufficient. See, e.g., Boone, 178 F.3d at 255. Even construing the action at issue as a reassignment, the record clearly reflects Allen experienced " significant detrimental effect" as a result of it: his compensation and retirement prospects substantially fell, his job title changed, his level of responsibility shrunk, and his opportunity for promotion vanished. This, too, is enough.

The County's primary argument on this issue is that no adverse employment action took place because Allen " knowingly and voluntarily accepted" his demotion. But a genuine dispute exists as to whether Allen voluntarily did so. In assessing voluntariness, the court " look[s] to the circumstances of the [demotion] to determine whether the employee was denied the opportunity to make a free choice." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988)[21] see also Bauer v. Holder, 25 F.Supp.3d 842, 852-54 (E.D. Va. 2014) (applying Stone analysis to Title VII claim). In making that assessment, the court considers whether the employee: (1) " was given some alternative to [demotion]" ; (2) " understood the nature of the choice he was given" ; (3) " was given a reasonable time in which to choose" ; and (4) " was permitted to select the effective date of [demotion]." Id.

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Here, a reasonable factfinder could conclude that the options letter coerced Allen to accept the demotion. The only alternative to demotion that the " options" letter provided was resignation. And failure to " exercise any of the above options" --that is, either demotion or resignation--resulted in " appropriate action to terminate [Allen's] employment." (Pl.'s App. Ex. 13, Options Letter.) Under those circumstances, Allen had " no genuine choice or alternative at all" --" the so-called 'choice' [wa]s wholly illusory . . . ." Bauer, 25 F.Supp.3d at 852-53. Allen clearly understood the import of the " options" available to him; in fact, if anything, that understanding is what led him and his wife to ask Richardson to let him continue as a correctional officer. (Richardson Dep. 30-31.) While Allen had two weeks to make a decision, the record reflects that, unlike in Stone, Allen did not and could not " dictate[] the terms of his [demotion] himself[.]" Stone, 855 F.2d at 177. Demotion was " clearly non-negotiable[,]" Bauer, 25 F.Supp.3d at 853, and no amount of time would have given him the chance to change that outcome. Allen has raised a genuine dispute as to the voluntariness of his demotion.

The circumstances surrounding Allen's demotion also raise a reasonable inference of unlawful discrimination. Three facts supporting this inference stand out. First, the County had several dozen correctional officer vacancies even as it chose to demote Allen. Second, less than a week before Dr. Oroszlan conducted his IME, Allen had been rated " Successful" on his annual performance evaluation. (Pl.'s App. Ex. 4, Employee Performance Evaluation Form, Nov. 2010.) Third, the initial draft of the options letter included two additional options--retirement and general leave of absence--that were ultimately removed, which, if anything, supports an inference that the County intended to force Allen out of his correctional officer job. A reasonable factfinder could thus conclude that Allen suffered an adverse employment action because of his disability.[22] Accordingly, the court will deny summary judgment on this issue.

II. ADA Illegal Medical Examination/Inquiry Claim

Allen also argues the County violated the ADA by " requiring [him] to submit to unnecessary and overbroad medical examinations and disability-related inquiries" that were neither job-related nor consistent with business necessity. (Compl. ¶ 28, ECF No. 1.) The ADA prohibits an employer from requiring employees to undergo a medical examination " unless such examination . . . is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). Because the County's IME met this standard, the court will grant summary judgment on this claim.

Although there is " sparse" case law on the point,[23] " other Circuits have clarified what is required for a medical examination to be 'job-related and consistent with business necessity.'" Blake v. Balt. County, 662 F.Supp.2d 417, 422 (D. Md. 2009) (citing Conroy v. N.Y. State Dep't of

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Corr. Servs., 333 F.3d 88 (2d Cir. 2003); Tice v. Centre Area Transp. Auth., 247 F.3d 506 (3d Cir. 2001)), aff'd, 439 F.App'x 208 (4th Cir. 2011). The Second Circuit has held, for example, that an employer must prove: " (i) 'that the asserted " business necessity" is vital to the business,' (ii) 'that the examination . . . genuinely serves the asserted business necessity,' and (iii) 'that the request is no broader or more intrusive than necessary.'" Blake, 662 F.Supp.2d at 422 (quoting Conroy, 333 F.3d at 97-98). EEOC guidance also addresses this issue, stating that any employer-ordered examination must be restricted to discerning whether an employee can perform the essential functions of his or her job. See, e.g., 29 C.F.R. § 1630, App. § 1630.14(c).

Here, the County's order requiring Allen to undergo an IME met that standard. O'Neill's concern about Allen's walking speed clearly related to Allen's job, which required him to, among other things, make foot patrols and maintain order in the Detention Center. The IME order was consistent with business necessity because it was conducted to " ensur[e] that the workplace [wa]s safe and secure . . . ." Conroy, 333 F.3d at 97. This is even more true because " [t]he needs of correctional facilities for secure and adequate staffing are particularly strong . . . ." Id. at 99.[24]

Instead of presenting evidence suggesting that the IME order was neither job-related nor consistent with business necessity, Allen makes several unsuccessful arguments. First, Allen argues O'Neill's sole observation of Allen's walking problem did not justify the IME because no evidence existed showing Allen's job performance was poor. While it is true that O'Neill's observation, standing alone, might not have been sufficient to justify an IME, the record reflects O'Neill knew that Allen had been on light duty for " six months or so[,]" (Pl.'s App., O'Neill Dep. 42), and therefore had reason to doubt Allen's capacity to perform his duties.[25] Second, Allen argues the IME was overbroad. Yet nothing in the record suggests Dr. Oroszlan went beyond the scope of a necessary evaluation. If anything, given the scant past medical records in his possession, ( see Def.'s App., Oroszlan IME 1, App. 86), Dr. Oroszlan inquired into only a limited period of Allen's medical background. Finally, Allen objects to Dr. Oroszlan's administration of the IME because he was not a rheumatologist. But the fact that Dr. Oroszlan was not a rheumatologist has no bearing on whether he could conduct a general medical examination to determine whether Allen was fit for duty. The County did not violate the ADA by requiring him to undergo an IME.

CONCLUSION

At a minimum, genuine disputes remain as to Allen's ADA illegal discharge/demotion claim: Allen has presented sufficient evidence to show he has a disability, that he was otherwise qualified for the correctional officer position, and that he suffered an adverse employment action because of

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his disability. If anything, viewing the record in the light most favorable to Allen, as the court must, the County forced Allen to accept demotion--and did so without engaging in the interactive process, and without considering less harsh reasonable accommodations. Because such conduct would violate the ADA, the court will deny summary judgment to the County on Allen's illegal discharge/demotion claim. As to Allen's illegal medical examination/inquiry claim, the undisputed evidence shows the County's decision to require Allen to undergo an IME was both job-related and consistent with business necessity. Accordingly, the court will grant summary judgment to the County on that claim.

A separate Order follows.

ORDER

For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. The defendant's Motion for Summary Judgment (ECF No. 74) is Granted as to the illegal medical examination/inquiry claim and Denied as to the illegal discharge/demotion claim;
2. The plaintiff's motion for attorney's fees as requested in his Second Motion to Strike Errata Sheets (ECF No. 41)--which the court partially ruled on in a prior order (ECF No. 70)--is Denied;
3. Counsel will be contacted to set a trial date; and
4. The Clerk shall send copies of this Order and the accompanying Memorandum to counsel of record.

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