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Peninsula Regional Medical Center v. Adkins

Court of Appeals of Maryland

May 26, 2016


         Argued March 8, 2016.

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[Copyrighted Material Omitted]

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          Circuit Court for Wicomico County. Case No.: 22-C-13-000191.

         FOR PETITIONER: Randi Klein Hyatt (J. Garrett Wozniak, Kollman & Saucier, P.A. of Timonium, MD) on brief.

         FOR RESPONDENT: John B. Stolarz (The Stolarz Law Firm of Baltimore, MD) on brief.

         Barbera, C.J.[*], Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ.


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          [448 Md. 203] Adkins, J.

          Since 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.

         [448 Md. 204] FACTS AND LEGAL PROCEEDINGS

         Tracey L. Adkins[1] (" Adkins" ) began her career at Peninsula Regional Medical Center

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(" 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.[2]

         In 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" ).[3] 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 Group.[4]

         Following 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.

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          On 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 position."

         Adkins 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.[5] 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[.]

         She was not hired for any of these positions.

         On or 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.[6] Adkins testified in her deposition that she also gave this note to PRMC.

         On 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 positions.

         In February 2013, Adkins filed a three-count complaint against PRMC in the Circuit Court for Wicomico County under

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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.[7] 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.

         The 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,[8] which we simplify into the following questions:

(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 PRMC?

         Because 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.


          A 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 conclusions. Id.


          There are relatively few appellate decisions interpreting Maryland's FEPA. On the other hand, the federal courts have provided " substantial guidance" on the interpretation

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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.

         The 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).

          The 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).

          Around 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.[9] Under FEPA, it is unlawful for a covered employer[10] to " fail or refuse to hire, discharge,

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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[11] 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 §

          FEPA 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.

         COMAR § (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 §

          [448 Md. 212] The term " qualified individual with a disability" also appears in COMAR § 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 § 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 accommodation." )

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(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 § requires action akin to an interactive process to identify a reasonable accommodation.

         In this 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).

         Failure to Accommodate

          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." ).

         PRMC 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.

         [448 Md. 214] Notice of Disability and Request for Accommodation

          To 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 employee

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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.[12] 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 ...

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