March 8, 2016.
[Copyrighted Material Omitted]
Circuit Court for Wicomico County. Case No.: 22-C-13-000191.
PETITIONER: Randi Klein Hyatt (J. Garrett Wozniak, Kollman &
Saucier, P.A. of Timonium, MD) on brief.
RESPONDENT: John B. Stolarz (The Stolarz Law Firm of
Baltimore, MD) on brief.
C.J.[*], Battaglia, Greene, Adkins, McDonald,
Watts, Harrell, Glenn T., Jr. (Retired, Specially Assigned),
Md. 203] Adkins, J.
its enactment in 1965, the Maryland Fair Employment Practices
Act (" FEPA" ), Maryland Code (1984, 2014 Repl.
Vol.), State Government Article (" SG" ) §
20-601 et seq., has been an important statutory
protection of employee civil rights. FEPA prohibits
discrimination in employment on the basis of an "
individual's race, color, religion, sex, age, national
origin, marital status, sexual orientation, gender identity,
genetic information, or disability." SG § 20-606.
In this case, we address FEPA's grant of protection to
disabled individuals. Specifically, we primarily consider an
employer's duty to reasonably accommodate a qualified
individual with a disability.
Md. 204] FACTS AND LEGAL PROCEEDINGS
L. Adkins (" Adkins" ) began her
career at Peninsula Regional Medical Center
(" PRMC" ), a hospital located in Salisbury,
Maryland, around March 2005. She was first employed as a
storekeeper in the Materials Management Department, which is,
in part, responsible for inventorying and stocking medical
supplies and equipment. In this role, Adkins delivered
supplies to various floors of the hospital, organized
supplies in the supply room, and checked expiration dates of
materials. Six months later, she was transferred to Inventory
Control, more commonly known as the " Cath Lab," as
an inventory control assistant. This position was also in the
Materials Management Department. Adkins held this position
until September 2010, when the position was " cut."
She then transferred back to the storekeeper position, which
she held until her termination on February 25, 2012--the
event generating the underlying lawsuit.
April 2011, Adkins went to PRMC's emergency room after
experiencing pain in her groin area and took a few days off
from work. When Adkins returned to work, she continued to
experience pain but managed to complete her tasks. Adkins was
ultimately diagnosed with a tear in the joint of her left hip
as well as a deformation in her hip socket. She was scheduled
to have surgery in August 2011 and notified her supervisors.
She also filled out paperwork to obtain leave under the
Family and Medical Leave Act (" FMLA"
). The FMLA paperwork indicated that her
leave would begin on [448 Md. 205] August 25, 2011 and that
she would return to work on or about October 6, 2011. In a
letter dated August 11, 2011, PRMC approved Adkins's FMLA
leave request. In this letter PRMC explained that her 12-week
leave under the FMLA would expire on November 17, 2011 and
that so long as she returned by that date, she would be
returned to her job or an equivalent one. PRMC also advised
Adkins in this letter that she would have to obtain a work
evaluation from the Employee Health Office before resuming
work. Adkins continued working full-time until she underwent
surgery in August 2011. In the months leading up to her
surgery, Adkins began applying for other positions at PRMC,
including Patient Services Rep -- Medical
the surgery, Adkins's pain intensified and her doctors
advised her that the time for recovery could range from six
months to a year. On October 3, 2011, while still out on FMLA
leave, Adkins met with James Bunk (" Bunk" ), a
supervisor who was the supply chain operations manager of the
Materials Management Department. She informed him that she
was meeting her surgeon on October 10 for a follow-up
appointment and that she hoped to learn, at that time, when
she could return to work. After the October 10 appointment,
Adkins received a letter from her physician advising her that
she would be unable to return to work until November 7, 2011.
Adkins then delivered this documentation to Bunk and
PRMC's Employee Health Office.
November 7, 2011, Adkins returned to work as scheduled and
met with a nurse in the Employee Health Office. She told the
nurse that she was still in pain and would be unable to
fulfill her job responsibilities on that day. She explained
that she experienced increased pain when bending, lifting,
and squatting, and that she would not be able to stand for
long periods of time. An " Employee Charting Note"
for [448 Md. 206] this date states that " [a]ll
parties" agreed that Adkins could not return to work. It
also reflects that Adkins had " been educated on FMLA
and to start looking at job postings," and that Adkins
reported having applied for the " core tech
returned to her doctor on November 10 and received a medical
report indicating she could return to work under " light
duty." That same day, she brought the form to PRMC's
Employee Health Office. The form stated that she was
restricted to " [s]edentary [w]ork: [l]ifting 10 pounds
maximum and occasionally lifting and/or carrying small
articles and occasional walking or standing." The
Employee Health Office told Adkins " that her unit can
not [ sic ] accommodate her restrictions."
After her surgery and before her termination, Adkins applied
for several different positions, including Patient Services
Rep -- Medical Group and Core Technician. She also emailed
Scott Phillips, director of the Materials Management
Department, and Laura McIntyre, Operations Room Materials
Manager, asking to be considered for an inventory control
coordinator position, writing:
I was informed that there is now an open position for
Inventory Control [Coordinator] in the Cath Lab. With my
prior position in the Cath Lab as the [inventory control]
assistant I was wondering if I would be considered for the
position. I am still released under Doctors orders under
sedentary work but [from] prior knowledge of the job I know
that the job is mostly sedentary and I do have the experience
and know how for the position[.]
not hired for any of these positions.
around November 17--the day Adkins's 12-week FMLA leave
was set to expire--PRMC granted her an additional 14 weeks of
leave until February 2012. PRMC encouraged her to apply to
open positions, but did not identify any specific positions.
During this time, Adkins learned that her [448 Md. 207]
storekeeper position had been filled. On January 12, 2012,
Adkins went back to her doctor for an appointment and
received another medical report form, which maintained the
" light duty" work restrictions. Adkins
testified in her deposition that she also gave this note to
February 25, 2012, at the end of the 14-week extended leave,
Adkins was terminated. Adkins applied to four more positions
after her termination, but was not hired for any of these
February 2013, Adkins filed a three-count complaint against
PRMC in the Circuit Court for Wicomico County under
FEPA, alleging intentional disability discrimination based on
actual disability, intentional disability discrimination
based on being regarded as having a disability, and failure
to accommodate. PRMC thereafter filed a motion for summary
judgment. In May 2014, the Circuit Court issued
an order and opinion granting summary judgment in favor of
PRMC. Adkins appealed the Circuit Court's ruling as to
disability discrimination based on actual disability and
failure to accommodate, but did not challenge the trial
court's decision on disability discrimination based on
being regarded as having a disability.
Court of Special Appeals, however, reversed the Circuit
Court's grant of summary judgment on Adkins's
disability discrimination based on actual disability claim
and her reasonable accommodation claim. The intermediate
appellate court ruled that the evidence contained in the
record reflected genuine disputes of material fact as to
these claims. PRMC [448 Md. 208] appealed and we granted its
Petition for Writ of Certiorari. PRMC presented two questions
for review, which we simplify into the following
(1) Does the definition of " qualified individual with a
disability" include employees who could perform the
essential functions of a reassignment position, with or
without a reasonable accommodation, even if they cannot
perform the essential functions of their current position?
(2) Did the Court of Special Appeals err in reversing the
Circuit Court's grant of summary judgment in favor of
we answer yes as to question one and no as to question two,
we shall affirm the judgment of the Court of Special Appeals
and remand for further proceedings. Additional facts shall be
included as necessitated by our discussion of the issues.
circuit court may grant a motion for summary judgment if
there is no dispute as to any material fact and the moving
party is entitled to judgment as a matter of law. Maryland
Rule 2-501(f). " The court is to consider the record in
the light most favorable to the non-moving party and consider
any reasonable inferences that may be drawn from the
undisputed facts against the moving party." Mathews
v. Cassidy Turley Md., Inc., 435 Md. 584, 598, 80 A.3d
269 (2013). When a circuit court's grant of summary
judgment hinges on a question of law, not a dispute of fact,
we review [448 Md. 209] whether the circuit court was legally
correct without according deference to that court's legal
are relatively few appellate decisions interpreting
Maryland's FEPA. On the other hand, the federal courts
have provided " substantial guidance" on the
and application of federal disability legislation. Barbara T.
Lindemann et al., Employment Discrimination Law 13-7 (5th ed.
2012). Because FEPA is modeled after federal law,
see Haas v. Lockheed Martin Corp., 396 Md.
469, 503-04, 914 A.2d 735 (2007) (Battaglia, J., dissenting),
a brief overview of federal disability law is necessary.
intermediate appellate court's outline of federal law is
instructive and merits quoting at length. The court wrote:
Title VII of the Civil Rights Act of 1964 established a broad
prohibition of workplace discrimination on the grounds of
race, color, religion, sex, and national origin. Pub. L. No.
88-352, 78 Stat. 253 (1964) (codified as amended at 42 U.S.C.
§ § 2000e et seq. ). Although Title VII
did not encompass disability within its scope, Congress
thereafter extended Title VII's ban of discriminatory
workplace practices to include disability with its enactment
of the Rehabilitation Act of 1973. Pub. L. No. 93-112, 87
Stat. 355 (1973) (codified as amended at 29 U.S.C. § 790
et seq. ). This Act protects federal executive
branch employees, see 29 U.S.C. § 791, and
employees of federal contractors and subcontractors with
contracts exceeding $10,000, see 29 U.S.C. §
793. It also prohibits discrimination in programs or
activities that receive federal financial assistance or are
conducted by an executive federal agency or the U.S. Postal
Service. See 29 U.S.C. § 794.
Adkins v. Peninsula Reg'l Med. Ctr., 224 Md.App.
115, 130-31, 119 A.3d 146 (2015).
Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355
(1973) (codified as amended at 29 U.S.C. § 701 et
seq. (2012)), was the first federal law to afford
protections in [448 Md. 210] the workplace to disabled
individuals. Congress enacted the Rehabilitation Act to
" promote and expand employment opportunities in the
public and private sectors for handicapped individuals and to
place such individuals in employment." Rehabilitation
Act, § 2(8). The Rehabilitation Act, however, covered
only private sector entities that possessed a certain nexus
with the federal government, such as federal contractors.
Id. § § 503, 504. In 1990, Congress passed
the Americans with Disabilities Act (" ADA" ),
which significantly expanded the applicability of workplace
protections to more employers than were covered by the
Rehabilitation Act. Pub. L. No. 101-336, 104 Stat. 327
(codified as amended at § 42 U.S.C. § 12112(a)
et seq. ). Under the ADA, employers that employ 15
or more individuals over a 20-week period are covered
entities. 42 U.S.C. § 12111(2).
the time Congress passed the Rehabilitation Act, the General
Assembly amended FEPA's ban on discrimination to include
" physically or mentally handicapped persons." Act
of July 1, 1974, ch. 601, § 19 (a)(1), 1974 Md. Laws
2029, 2030. Under FEPA, it is unlawful for a
covered employer to " fail or refuse to hire,
or otherwise discriminate against any individual with respect
to the individual's compensation, terms, conditions, or
privileges of employment" based on his or her "
disability [that is] unrelated in nature and extent so as to
reasonably preclude the performance of the employment."
[448 Md. 211] SG § 20-606(a)(1). The Maryland Commission
on Human Relations promulgated regulations expounding
on this proscription in the Code of Maryland Regulations
(" COMAR" ) by delineating various forms of
unlawful employment discrimination against " a qualified
individual with a disability," including "
[h]iring, upgrading, promotion, tenure, demotion, transfer,
layoff, termination, right of return from layoff, and
rehiring." COMAR § 14.03.02.04(A)(2).
also prohibits an employer from failing or refusing " to
make a reasonable accommodation for the known disability of
an otherwise qualified employee." SG § 20-606(a)(4)
(emphasis added). COMAR provides:
A covered entity (1) [s]hall make a reasonable accommodation
to the known physical or mental limitations of a qualified
individual with a disability; (2) [i]s not required to
provide an accommodation, if it demonstrates that the
accommodation would impose undue hardship on the operation of
its business or program; and (3) [m]ay not deny an employment
opportunity to a qualified individual with a disability, if
the basis for the denial is the need to accommodate the
individual's physical or mental limitations, and this
accommodation, if attempted, would be reasonable.
§ 14.03.02.05(A) (emphasis added). Thus, employers are
required to accommodate only " qualified"
individuals with a disability under FEPA. Cf. 42
U.S.C. § 12112(a) (" No covered entity shall
discriminate against a qualified individual on the
basis of disability[.]" ) (emphasis added). A "
qualified individual with a disability" is " an
individual with a disability who: (a) [w]ith or without
reasonable accommodation can perform the essential functions
of the job in question; or (b) [i]s otherwise qualified for
the benefit, term, condition, or privilege of employment at
issue." COMAR § 14.03.02.02(B)(10).
Md. 212] The term " qualified individual with a
disability" also appears in COMAR §
14.03.02.04(B)(3). This regulation provides that it is an
unlawful employment practice for a covered entity to "
[f]ail to make an individualized assessment of a qualified
individual with a disability's ability to perform the
essential functions of a job." COMAR §
14.03.02.04(B)(3). Federal regulatory disability
discrimination law does not use the phrase "
individualized assessment," but requires an employer
" initiate an informal, interactive process with the
individual with a disability in need of the
accommodation" to identify a reasonable accommodation.
29 C.F.R. § 1630.2(o)(3) (emphasis added); see
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 778 (6th
Cir. 2015) (" We, along with many other circuits, have
held that the employer's duty to participate in the
interactive process in good faith is mandatory" )
(citation omitted); Fleetwood v. Harford Sys. Inc.,
380 F.Supp.2d 688, 701 (D. Md. 2005) (" [I]f it is not
immediately obvious what accommodation would be appropriate,
the ADA requires that the employer and employee engage in an
interactive process to identify a reasonable
(citing Bryant v. Better Bus. Bureau of Greater Md.,
923 F.Supp. 720, 737 (D. Md. 1996) and 29 C.F.R. §
1630.2(o)(3)). We agree with the intermediate appellate court
and the parties that COMAR § 14.03.02.04(B)(3) requires
action akin to an interactive process to identify a
case, it is undisputed that Adkins was unable to perform the
essential functions of the storekeeper position. The
principal issue here rather is whether the intermediate
appellate court was correct in holding that one who cannot
perform the essential functions of his or her
current job can still be considered a "
qualified individual with a disability" entitled to a
reasonable accommodation. Another key dispute is the
concomitant issue of whether an employer has an obligation to
conduct an individualized assessment of an employee who
cannot perform the essential functions of his or her
position. Because PRMC's appeal challenges the heart of
Adkins's failure to accommodate claim under SG §
20-606(a)(4), we shall address that first, before examining
her [448 Md. 213] intentional disability discrimination claim
under SG § 20-606(a)(1).
Although the statutory duty to accommodate rests on the
employer, the burden of proving that an employer could not
have reasonably accommodated a disabled employee does not
arise until the employee presents his or her prima facie
case. Gaither v. Anne Arundel Cnty., 94 Md.App. 569,
583, 618 A.2d 244 (1993). To establish a prima facie case for
a failure to accommodate claim, an employee must show: (1)
that he or she was an individual with a disability; (2) that
the employer had notice of his or her disability; (3) that
with reasonable accommodation, he or she could perform the
essential functions of the position (in other words, that he
or she was a " qualified individual with a
disability" ); and (4) that the employer failed to make
such accommodations. See id ; Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir.
2015) (setting forth the elements an employee must establish
as part of his or her prima facie case for failure to
accommodate under the Americans with Disabilities Act). A
failure to accommodate claim does not, however, require any
showing of discriminatory intent. See Lenker v.
Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2000)
(" [I]f the plaintiff demonstrated that the employer
should have reasonably accommodated the plaintiff's
disability and did not, the employer has discriminated under
the ADA and is liable." ); Scalera v. Electrograph
Sys., Inc., 848 F.Supp.2d 352, 362 (E.D.N.Y. 2012)
(" [T]here is no burden on Plaintiff to show that her
disability played any motivating role in Electrograph's
failure to provide the requested accommodation." ).
does not contest the Circuit Court's conclusion that
Adkins's hip injury constitutes a disability within the
meaning of FEPA. Accordingly, we begin our analysis as to
whether summary judgement was appropriate on Adkins's
failure to accommodate claim at the second element required
as part of an employee's prima facie case.
Md. 214] Notice of Disability and Request for
receive an accommodation, an employee must "
communicate to his employer his disability and his desire
for an accommodation for that disability." Wilson v.
Dollar Gen. Corp., 717 F.3d 337, 346-47 (4th Cir. 2013).
This requirement exists because an employer " cannot be
expected to accommodate disabilities of which it is
unaware." Pollard v. Balt. Cnty. Bd. of Educ.,
65 F.Supp.3d 449, 456 (D. Md. 2014). The burden on an
to provide notice of a disability is " 'not a great
one.'" Rock v. McHugh, 819 F.Supp.2d 456,
473 (D. Md. 2011) (quoting E.E.O.C. v. Fed. Express
Corp., 513 F.3d 360, 369 n.5 (4th Cir. 2008)). Indeed,
adequate notice does not require the use of the phrase "
reasonable accommodation," explicit reference to a
statute, or the invocation of magic words. SeePollard, 65 F.Supp.3d at 456. Additionally, a
request for an accommodation need not be in writing.
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313
(3d Cir. 1999). The key consideration in determining whether
an employee has satisfied the second element of his or her
prima facie case is whether the employee " provides the
employer with enough information that, under the
circumstances, the employer can be fairly ...