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Equal Employment Opportunity Commission v. Manufacturers and Traders Trust Co.

United States District Court, D. Maryland

September 10, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff,
v.
MANUFACTURERS AND TRADERS TRUST COMPANY d/b/a M&T BANK, Defendant.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         In this hotly contested employment discrimination case, the Equal Employment Opportunity Commission (the “EEOC”) filed suit against Manufacturers and Traders Trust Company d/b/a M&T Bank (“M&T” or the “Bank”) to obtain “appropriate relief” for Candace McCollin, ” a former employee of M&T. ECF 1 (“Complaint”) at 1. The EEOC claims that M&T violated the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008 (“ADA”), 42 U.S.C. §§ 12112(a) and (b), by failing to provide reasonable accommodations to McCollin and by terminating her employment because of her disability, cervical insufficiency. ECF 1, ¶¶ 13-14, 33. In particular, the EEOC contends that, after McCollin received clearance from her doctor to return to work following the birth of her baby, M&T failed to reassign her to a vacant position for which she was qualified and then terminated her. Id. ¶¶ 28, 36-37. The EEOC seeks back pay with prejudgment interest for McCollin, as well as “front pay, ” reinstatement, compensatory damages, punitive damages, and injunctive relief. Id. at 7-8.

         At the conclusion of extensive discovery (and many discovery disputes), the parties filed cross-motions for summary judgment, which have been fully briefed. Specifically, plaintiff moved for summary judgment (ECF 63), supported by a memorandum (ECF 63-1) (collectively, the “EEOC Motion”) and voluminous exhibits. ECF 63-2 to ECF 63-37. The Bank filed a combined opposition to the EEOC Motion and a cross motion for summary judgment (ECF 66), supported by a memorandum (ECF 66-1) (collectively, the “Bank Motion”) and numerous exhibits. ECF 66-2 to ECF 66-33. The EEOC filed a combined reply in support of its motion and an opposition to the Bank Motion (ECF 70), along with many additional exhibits. ECF 70-1 to ECF 70-49; see also ECF 71. The Bank filed a consolidated reply in support of its own cross motion and in opposition to the EEOC Motion (ECF 72), along with more exhibits. ECF 72-2 to ECF 72-13; see also ECF 73.[1]

         The Bank has also moved to strike (ECF 67) EEOC exhibits 14 and 17, i.e., ECF 63-15 and ECF 63-18. The motion to strike concerns the declarations of Duane Carr and Kandee Smith. The EEOC opposes the motion to strike. ECF 68. M&T has replied. ECF 69.

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the EEOC Motion (ECF 63) as to the failure to accommodate claim, but deny the EEOC Motion as to the unlawful discharge claim. Conversely, I shall deny the Bank Motion (ECF 66) as to the failure to accommodate claim, but grant it as to the unlawful discharge claim. Further, in making my decision, I do not find it necessary to rely upon the disputed declarations. Therefore, I will DENY, as moot, the Bank's motion to strike the declarations of Carr and Smith. ECF 67.

         I. Factual and Procedural Background[2]

         McCollin, a high school graduate, gave birth to her first child in 1998, without complications. ECF 63-1 at 5.[3] In 1999, she was diagnosed with abnormal cells in her cervix, which were removed by a loop electrosurgical excision procedure (“LEEP”). ECF 63-1 at 5; ECF 66-1, ¶ 10. The year after the LEEP procedure, McCollin suffered her first miscarriage, which occurred during her first trimester. ECF 63-1 at 5.

         In 2001, McCollin began her career in retail banking as a bank teller. ECF 63-1 at 4. She was hired as a relationship banker with Provident Bank in 2002, and rose to the level of assistant branch manager in 2004 and branch manager in 2007 at an in-store branch, Mondawmin Mall Shoppers. Id. at 4.[4]

         In 2008, McCollin suffered her second miscarriage, at around 19 weeks. ECF 63-1 at 5. At that time, she was diagnosed with an incompetent cervix. Id. at 6.

         M&T Bank, headquartered in Buffalo, New York, is one of Baltimore's largest employers. Id. It acquired Provident Bank in 2009. Id. at 4-5. M&T retained McCollin as branch manager of Mondawmin Mall Shoppers. Id. at 4-6; ECF 66-1 at 13. In 2010, while McCollin was employed by M&T, she suffered her third miscarriage, at about 20 weeks. ECF 63-1 at 6.

         In 2012, M&T announced its intention to close the Mondawmin Mall Shoppers branch as part of its process of closing all of its in-store branches by 2014. Id. at 5-6; ECF 66-1 at 14. McCollin applied for a vacant branch manager position at M&T's Edmonson Village branch, a traditional retail banking branch, and on October 10, 2012, she was selected to fill the position by Regional Retail Sales Manager Anne Bartolotta.[5] See ECF 63-2 (McCollin Decl.), ¶ 2; ECF 63-8 (Dep. of Bartolotta) at 4:25-5:4.

         The Bank maintains an equal employment opportunity (“EEO”) policy. Melissa Thompson, M&T's Corporate Programs Manager, is responsible for the Bank's EEO program. ECF 63-1 at 7; ECF 63-14 (Thompson Dep.) at 3. It “provide[s] equal employment opportunities to all employees and applicants without regard to . . . disability” and provides for “reasonable accommodation[s] to qualified individuals with disabilities.” ECF 63-13 at 2, 4. Moreover, the Bank provides leave and job reassignment as reasonable accommodations. ECF 66-2 at 2-3 (Thompson Decl.); ECF 66-2 at 4-7 (M&T EEO Policy). Defendant's Employee Relations Department (“ERD”) is responsible for enforcing its EEO policy, including reasonable accommodation requests.

         M&T's disability and Family Medical Leave Act (“FMLA”) programs are administered through UNUM, a third-party provider. ECF 63-13 at 7; ECF 66-2 at 9. Pursuant to Bank policy, employees must notify their managers prior to taking FMLA and/or short-term disability (“STD”) leave, along with the dates of their anticipated leave. Employees unable to return to work by 26 weeks after commencing STD are eligible for long-term disability (“LTD”) benefits. ECF 63-13 at 8. The Bank permits up to 24 months' LTD leave before terminating employees unable to return to work. Id. Prior to returning to work, these employees must submit medical release forms indicating their restrictions, if any. Id. “If benefits are denied earlier than 24 months, the employee may return to work based on position availability.” Id.

         M&T also has a Replacement Policy to ensure adequate staffing. Pursuant to the Replacement Policy, a manager may request permission to replace an employee who has been on leave for at least 16 weeks, if justified by business need. ECF 66-3 (Thompson Dep.) at 10, 15, 31. If Employee Relations (“ER”) approves the replacement request, M&T notifies the employee by mail, advising that M&T can no longer hold open the position, and asking if the employee is currently able to return to work, with or without an accommodation. ECF 66-3 at 9; ECF 66-5 (letter of 4/4/13 from Bank to McCollin); ECF 66-6 (McCollin Dep.) at 31-33. The employee has 10 business days to respond. ECF 66-3 at 15-16. If the employee is unable to return to work, M&T begins the process of replacing the employee. ECF 66-5; ECF 66-3 at 14-15.

         If an employee is released to return to work within 90 days after the replacement request, M&T will place that employee in a job, without competition. ECF 66-3 at 17-19, 21-24. However, an employee who returns to work after the initial 90-day period must seek a new position through M&T's Redeployment Policy.[6] That policy assists employees in finding a new position if they are “returning from an extended leave of absence, within 24 months of his/her first day of leave, whose position was replaced due to the staffing needs of the business.” ECF 66-7 (Redeployment Policy); ECF 66-3 at 20-23; ECF 66-4 (Replacement Request Form); ECF 66-8 (John Burke Dep.) at 6; ECF 66-9 (Diane Robinson Dep.) at 6-7.

         Pursuant to the Redeployment Policy, employees search independently and apply for vacant positions through M&T's online job posting system with the aid of M&T's talent acquisition team and a third-party vendor, Career Partners International (“CPI”). ECF 66-7; ECF 66-3 at 22; ECF 66-9 at 6-7. Notably, if an employee does not obtain a position at M&T within 30 days of being released to return to work, with or without an accommodation, his or her status as an employee ends. Nevertheless, the individual may continue to apply for positions for another 60 days with the assistance of the talent acquisition team and CPI. See ECF 66-5 at 2; ECF 66-10 (Arthur Salman Rule 30(b)(6) Dep.) at 6-7.

         In addition, the Bank utilizes a “float pool, ” which consists of tellers and relationship bankers, to provide additional employee coverage. ECF 63-4 (McCollin Dep.) at 17. The parties dispute whether it includes other employees as well. Compare ECF 63-1 at 35 with ECF 66-1 at 16. And, when necessary, the Bank may hire temporary workers to satisfy temporary staffing needs. ECF 63-16 at 13:18-25.

         M&T considers applicants for job postings in the following order of priority: (1) Workforce Restructure employees, which includes employees whose jobs have been eliminated or are subject to the Redeployment Policy; (2) internal employees; (3) employee referrals; and (4) external applicants. ECF 66-1 at 12; ECF 66-11 (Skowronski Dep.) at 9:1-10:9, 20:1-10; ECF 66-3 (Thompson Dep.) at 25:23-26:9; ECF 66-12 (Kristen Lucia Rule 30(b)(6) Dep.) at 9:12-16.

         The Bank's Redeployment Policy provides “preferred consideration” to employees, meaning recruiters review those employees' applications first and typically will interview the employee if he or she meets the minimum qualifications for the job. ECF 66-12 at 7: 6-10 (“If they meet the minimum qualifications of the position, they will be granted a human resources interview and then sent down to the line of business for review.”); see also ECF 66-3 at 30:11-22; ECF 66-11 at 11:7-13:15. In its briefs, M&T contends that it has a “best qualified” policy, pursuant to which it hires the most qualified candidate for each position. ECF 66-1 at 13, 41; ECF 72 at 15 n. 5. But, M&T does not point to a formal, written statement of its policy.

         The EEOC does not directly dispute that M&T has a “best-qualified” employee policy. Instead, it states in a footnote: “Even if Defendant maintained a ‘best-qualified policy,' that it repeatedly selected applicants objectively less qualified than McCollin makes clear that such policy was inconsistently enforced.” ECF 70 at 10 n. 10.

         Pursuant to the Bank's EEO policy, there are circumstances under which it would reassign employees with disability-related work restrictions to vacant positions, without competition. ECF 63-1 at 8; ECF 63-14 at 5-7. In accordance with this replacement process, M&T reassigns displaced employees to comparable vacant positions, without competition, upon return to work. CF 63-1 at 8 (citing ECF 63-13 at 10, Replacement Request Form; ECF 63-14 at 18-19). Defendant's Employee Relations Department is charged with identifying comparable positions that are or will become available within 90 days of an employee's replacement should the employee return to work. ECF 63-13 at 11. If no comparable positions are available, or if the employee is released later than 90 days after replacement, the Bank may refer the employee to its third-party outplacement vendor for 90 days' redeployment assistance. See ECF 63-13 at 14-15; ECF 63-14 at 15-17; ECF 63-16 at 10-12.

         In November 2012, McCollin learned that she was pregnant and that, as a high-risk patient, she would need to undergo a surgical procedure to help her carry the baby to term, followed by bedrest until delivery. ECF 63-1 at 11; ECF 66-1 at 14-15. According to McCollin, in November 2012, she told her supervisor, Anne Bartolotta, of her condition, her history of miscarriages, and her need to take extended leave for the surgical procedure and recovery. ECF 63-1 at 11; ECF 63-2, ¶ 6; ECF 66-1 at 14-15; see also ECF 63-8 at 8:4 - 9:16; ECF 63-26. Bartolotta advised McCollin to contact M&T's third-party provider, UNUM, presumably in regard to FMLA leave or disability. See ECF 63-8 at 9:17-22.

         McCollin initiated a claim on November 29, 2012, and her leave began when she underwent surgery on December 10, 2012. See ECF 63-26; ECF 63-27. McCollin asserts that she told Bartolotta in March 2013 that she would be unable to return to work until the birth of her baby in July 2013. ECF 63-2, ¶ 7. McCollin initially took leave under the FMLA and was later approved for STD. See ECF 63-1 at 11 n. 58; ECF 66-1 at 15.

         On March 19, 2013, Bartolotta received notice from UNUM that McCollin's FMLA leave had ended on March 7, 2013, and that her STD would end on March 25, 2013. ECF 66-1 at 15 (citing the email exhibit at ECF 66-18). Bartolotta contacted John Burke, Employee Relations Specialist for M&T's Greater Baltimore region, on or about March 20, 2013, about replacing McCollin as Branch Manager. ECF 63-1 at 12; ECF 66-1 at 15. Burke began the replacement process and sent McCollin a form letter on April 4, 2013, informing her that her position could not be held open and she would be replaced unless she could return to work in some capacity. ECF 63-1 at 12; ECF 66-1 at 16, 27; ECF 70-10 at 5: 10-12.

         The letter stated, in part, ECF 63-30 at 5:

This action will not affect your current short-term disability benefits, as long as you continue to provide the required medical documentation to substantiate your leave of absence.
If you are currently able to return to work in some capacity, please have your health care provider complete the attached Accommodations Assessment Form and return to me for further review. If I am not in receipt of the referenced form by April 14, 2013, we will proceed with the replacement of your position.
As a result of the referenced action, you will be eligible for 90 days (“Posting Period”) of redeployment assistance, during which time one of our assigned vendors will help you to identify another position within the bank that is commensurate with your work status, pay, skills and experience. If your health care provider formally releases you to return to work within 24 months of your first day of disability, you will be required to contact me within 5 business days of your release in order to receive redeployment assistance.

         McCollin did not respond, but she continued to submit documents to UNUM in support of her disability claim. ECF 63-1 at 12; ECF 66-1 at 16. On or about April 15, 2013, Burke posted McCollin's Edmonson Village position. ECF 63-1 at 12. On May 20, 2013, M&T hired McCollin's replacement, Laveda Sears, as Branch Manager at the Edmonson Village branch. Id.; ECF 66-1 at 16. Sears had been the assistant branch manager at M&T's Belvedere location. ECF 63-1 at 12.

         McCollin successfully gave birth by Cesarean section on June 10, 2013. ECF 63-1 at 12. Soon after, on June 19, 2013, she informed Burke that she would be released to work on August 5, 2013, and she faxed a Return to Work form to Burke on July 22, 2013. Id. at 12-13; ECF 66-21 at 2. Burke then contacted about four or five Retail Regional Sales Managers with vacant branch and assistant branch manager positions in their regions about reassigning McCollin to any of their vacancies. ECF 63-1 at 13; ECF 66-1 at 17; ECF 63-31 at 7-10, 12. However, M&T did not reassign McCollin to any of the eight vacant positions. On August 9, 2013, M&T referred McCollin to CPI for redeployment assistance. ECF 63-31 at 13 (email from Thompson to Diane Robinson of CPI).

         Between August and October 2013, McCollin applied for, or expressed interest in, nine or ten vacant positions that were at or below her grade level, including branch manager, assistant branch manager, Enhance Due Diligence Investigator, and Work Specialist. See ECF 63-1 at 13-14; ECF 66-1 at 29 (disputing whether McCollin applied for the Ingleside Branch Manager position). The parties dispute plaintiff's qualifications for these positions. Compare ECF 63-1 at 14-15 with ECF 66-1 at 17-23.

         Plaintiff received four interviews but no reassignment. ECF 63-1 at 14. The EEOC claims that the Bank “selected less qualified applicants . . ., ” some of whom were external candidates. Id. Moreover, it contends that about 20 other branch manager or investigator positions were available between August 2013 and March 2014, but the Bank failed to offer McCollin any of them. Id. at 13-14, ECF 66-1 at 17-22.

         As noted, “If an employee does not obtain a position at M&T after the first 30 days of the posting period, her status as an employee ends, but she could continue to apply for positions for the remaining 60 days with the assistance of the talent acquisition team and CPI.” ECF 66-1 at 11. On September 9, 2013, the 30-day period within which McCollin could apply as an internal candidate came to an end, and M&T terminated plaintiff's employment due to her “failure to return from [her] leave of absence.” ECF 63-37 (Termination letter).

         Thereafter, McCollin filed a charge of discrimination with the EEOC. On March 31, 2016, she was issued a Letter of Determination finding reasonable cause to believe that the ADA was violated. ECF 1, ¶¶ 7-8. After the EEOC was unable to secure a conciliation agreement with M&T, it issued a Notice of Failure of Conciliation on July 26, 2016. Id. ¶¶ 10-11. This suit followed on September 19, 2016. See ECF 1.

         Additional facts are included in the Discussion.

         II. Standard of Review

         Both parties have moved for summary judgment under Fed.R.Civ.P. 56. Rule 56(a) provides, in part: “The court shall grant summary judgment 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.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law.”). The nonmoving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

         The Supreme Court has clarified that not every factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018); Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).

         “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in Bouchat ) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary judgment motion, a court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587; accord Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019); Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018); Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). However, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         The judge's “function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Wilson v. Prince George's Cty., 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

         When, as here, the parties have filed cross-motions for summary judgment, the court must consider “each motion separately on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.'” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). Simply because both parties have filed for summary judgment does not mean that summary judgment to one party or another is necessarily appropriate. “Both motions must be denied if the court finds that there is a genuine issue of material fact. But, if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.” 10A Wright, Miller & Kane, Federal Practice & Procedure § 2720, at 336-37 (3d ed. 1998, 2012 Supp.).

         III. Discussion

         A. The ADA

         The ADA, 42 U.S.C. §§ 12101 et seq., was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, ” 42 U.S.C. § 12101(b)(1), and “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” Id. § 12101(b)(2). To that end, the statute “prohibits discrimination against persons with disabilities in three major areas of public life: employment, under Title I, 42 U.S.C. §§ 12111-12117; public services, under Title II, 42 U.S.C. §§ 12131-12165; and public accommodations, under Title III, 42 U.S.C. §§ 12182-12189.” A Helping Hand, LLC v. Baltimore County, Md., 515 F.3d 356, 361 (4th Cir. 2008) (citing Tennessee v. Lane, 541 U.S. 509, 516-17 (2004)).

         The ADA contains five titles: Title I, Employment; Title II, Public Services; Title III, Public Accommodations; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. Of relevance here, Title I prohibits employment discrimination “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). See Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014) (“The ADA makes it unlawful for covered employers to ‘discriminate against a qualified individual on the basis of disability.'”).[7]

         A “qualified individual” is defined in the ADA as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A disability is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment[.]” Id. § 12102(1); see Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 239 (4th Cir. 2016) (quoting 29 C.F.R. § 1630.2(k)(1)). Major life activities include, but are not limited to, “sleeping, walking, standing, lifting, bending . . . working” and “reproductive functions” Id. §12102(2)(A)-(B). An individual with a “a record of such an impairment, ” or who is “regarded as having such an impairment, ” will be considered to have a disability. Id. § 12102(1)(B)-(C).

         Under Title I of the ADA, the term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer.]” Id. §12112(b)(5)(A); see Wilson v. Dollar Gen. Corp., 717 F.3d 337, 344 (4th Cir. 2013).[8] Additionally, “discrimination against a qualified individual on the basis of disability” includes “denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(B). And, the ADA bars the discharge of a qualified employee because she is disabled. Summers, 740 F.3d at 328.

         As noted, “[o]ne form of discrimination prohibited by the ADA is a failure to make a reasonable accommodation.” Crabill v. Charlotte Mecklenburg Bd. Of Educ., 423 Fed.Appx. 314, 311 (4th Cir. 2011). “A reasonable accommodation is one that (1) ‘enables [a qualified] individual with a disability . . . to perform the essential functions of [a] position,' 29 C.F.R. § 1630.2(o)(1)(ii); or (2) ‘enable[s] [an] employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by . . . other similarly situated employees without disabilities,' id. § 1630.2(o)(1)(iii).” Hamel v. Bd. of Educ. of Harford Cty., JKB-16-2876, 2018 WL 1453335, at *10 (D. Md. Mar. 23, 2018). However, an accommodation is not reasonable as a matter of law “if it either imposes undue financial and administrative burdens on a grantee, or requires a fundamental alteration in the nature of [the] program.” Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 288, (1987) (internal citations omitted); see Reyazuddin v. Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015); Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 2012). The concept of reasonable accommodation is discussed in more detail, infra.

         The EEOC asserts two ADA claims against M&T: (1) failure to accommodate; and (2) wrongful discharge. See ECF 70 at 9.

         B. Failure To Accommodate

         To establish a prima facie case for failure to accommodate, the EEOC must show: (1) the employee was an individual with a disability within the meaning of the ADA; (2) the employer had notice of the disability; (3) with reasonable accommodation, the employee could perform the essential functions of the position; and (4) the employer refused to make such accommodations. Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001); see also Stephenson v. Pfizer, 641 Fed.Appx. 214, 219 (4th Cir. 2016) (per curiam); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015); Wilson v. Dollar Gen. Corp., 717 F.3d at 345.

         As discussed, infra, an employee need not demonstrate that the employer had a discriminatory intent. Notably, “at the summary judgment stage, the employee ‘need only show that an accommodation seems reasonable on its face,' and then the employer ‘must show special (typically case-specific) circumstances that demonstrate undue hardship.'” Reyazuddin, 789 F.3d at 414 (some quotations and citation omitted); see U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002). If the employee cannot show the accommodation is reasonable “in the run of cases, ” summary judgment against the plaintiff typically follows. However, the plaintiff may still “show that special circumstances warrant a finding that . . . the requested ‘accommodation' is ‘reasonable' on the particular facts.” Barnett, 535 U.S. at 405.

         A reasonable accommodation “may include . . . job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” Id. § 12111(9) (emphasis added). A reasonable accommodation may also include accrued paid leave or unpaid leave. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (“[O]ther accommodations could include . . . permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment[.]”).

         The EEOC claims that M&T failed to provide a reasonable accommodation “by forcing [McCollin] to compete for vacant positions for which she was qualified.” ECF 63-1 at 21. The Bank maintains that at the time of plaintiff's termination on September 9, 2013, she was not disabled and had no record of disability. ECF 66-1 at 34-35. Moreover, M&T asserts that the ADA does not require reassignment without competition. Id. at 36-43.[9]

         1. McCollin Has A Record Of Disability

         A person is disabled if she has: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment[.]” Id. § 12102(1). A plaintiff has a “record of disability” if she can show that she “‘has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” Foore v. Richmond, 6 Fed.Appx. 148, 153 (4th Cir. 2001) (quoting 29 C.F.R. § 1630.2(k)(1)).

         The question of whether a plaintiff is disabled or has a record of disability under the ADA is “‘a question of law for the court.'” Coghill v. Bd. of Educ. of Prince George's Cty., GJH-14-2767, 2017 WL 1049470, at *5 (D. Md. Mar. 17, 2017) (quoting Rose v. Home Depot U.S.A., Inc., 186 F.Supp.2d 595. 608 (D. Md. 2002)), aff'd, 703 Fed.Appx. 211 (4th Cir. 2017). To resolve this question, the court must make an “an individualized inquiry, particular to the facts of each case.” E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001). “[T]he date of an adverse employment decision is the relevant date for determining whether a plaintiff is a “qualified individual with a disability.” E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir. 2000). According to the parties, the adverse employment decision occurred on September 9, 2013, and that date is therefore the relevant date for determining whether McCollin was disabled or had a record of disability for both the failure to accommodate and wrongful discharge claims.

         The EEOC maintains that McCollin has an incompetent cervix and is therefore disabled. ECF 63-1 at 17-20. It also contends that she had a record of disability due to her prior miscarriages. Id. As noted, M&T claims that at the time of the termination, McCollin had neither a disability nor a record of disability. ECF 66-1 at 34-36.

         Regardless of whether plaintiff was disabled when she was ready to return to work, it is clear that she had a record of disability. The EEOC acknowledges that “pregnancy itself is not an impairment within the meaning of the ADA.” ECF 63-1 at 15. But, it contends, correctly, that “pregnancy-related impairments, including complications related to the reproductive system, fall squarely within its ambit.” ECF 63-1 at 15 (citing 29 C.F.R. § 1630) (stating that a “pregnancy-related impairment that substantially limits a major life activity is a disability”).

         The EEOC's Enforcement Guidance (“Guidance” or “E.G.”) states that “some impairments of the reproductive system may make a pregnancy more difficult and thus necessitate certain physical restrictions to enable a full term pregnancy . . . . Disorders of the uterus and cervix may be causes of these complications.” Enforcement Guidance: Pregnancy Discrimination and Related Issues (Pregnancy Guidance) (June 25, 2015), https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (citations omitted). Moreover, several courts have recognized that reproductive impairments are covered by the ADA. See, e.g., Spencer v. James Marine, Inc., et al., 617 F.3d 380, 398-99 (6th Cir. 2010) (deferring to EEOC's interpretive guidelines; finding that an incompetent cervix meets the pre-amended ADA definition of disability); Soodman v. Wildman, Harrold, Allen & Dixon, 1997 WL 106257, at *6 (N.D. Ill. Feb. 10, 1997) (incompetent cervix causing danger of pre-term labor constitutes disability under ADA). Therefore, it is clear that an incompetent cervix constitutes a disability.

         The EEOC established that McCollin had a record of cervical incompetence since at least 2008. See ECF 63-10 at 2-4 (medical records of McCollin); ECF 63-2 at 2-3 (McCollin Decl.); ECF 63-9 (Decl. of Dr. Murray Pearlman, plaintiff's physician). As indicated, McCollin suffered miscarriages in 1999, 2008, and 2010, and the miscarriages in 2008 and 2010 were attributed to cervical incompetence. See ECF 63-10 (medical records of McCollin); ECF 63-9, ¶¶ 4-6 (Pearlman Decl.).

         Further, McCollin provided M&T Bank with adequate notice of her record of disability. It is undisputed that “[i]n November 2012, McCollin informed her manager, Anne Bartolotta, that she was pregnant, had had miscarriages in the past, and needed to have a procedure to carry the baby to term.” ECF 66-1 at 14-15; see ECF 63-4 at 9 (“I told [Bartolotta] that I was pregnant. I had to get a procedure done so that I would be able to carry the baby full term. I told her about the previous losses that I had.”); ECF 63-8 (Bartolotta Dep.) at 8 (“I remember the conversation [with McCollin]. She was pregnant, and she told me that her doctor needed . . . to do something to enable her to carry the baby full term. She told me she had lost some babies.”); ECF 63-26 at 2 (e-mail from McCollin to Bartolotta, dated November 29, 2012).

         Yet, M&T argues that McCollin had no record of disability because she failed to provide notice. ECF 66-1 at 35. Specifically, when McCollin requested leave, she did not provide defendant with actual medical records or a physician's declaration. ECF 66-1 at 35. In support of its argument, M&T relies primarily on Muench v. Alliant Foodservice, Inc., 205 F.Supp.2d 498, 503 n. 2 (D. Md. 2002).

         In that case, the court decided at summary judgment that the plaintiff failed to establish a disability or a record of disability. Plaintiff's medical records were the only evidence of a record of disability, but they failed to establish that plaintiff had a disability, let alone a record of one. Id. In a footnote, the court stated that “those records were never disclosed to Alliant, so it cannot be charged with knowledge of this record of Plaintiff's disability.” Id. In M&T's view, this sentence demonstrates that McCollin had to provide actual medical records to establish a record of disability. ECF 66-1 at 35.

         But, this lone sentence cannot sustain the weight that M&T places on it. Indeed, M&T's argument-that an employee must document his or her actual medical condition in order to establish a record of disability-conflicts with the ADA's lax notification requirements. In particular, 29 C.F.R. pt. 1630 app. § 1630.2(k) provides: “An individual may have a “record of” a substantially limiting impairment-and thus be protected under the “record of” prong of the statute-even if a covered entity does not specifically know about the relevant record.”

         Case law also supports the EEOC's position. In Jacobs, 780 F.3d at 575, at the summary judgment stage, the Fourth Circuit concluded that an employee's conversation with her supervisors about her disability constituted “affirmative evidence from which a reasonable jury could conclude” that the employer had knowledge of the employee's disability. The Court further explained: “‘The employer need only know the underlying facts, not the legal significance of those facts.'” Id. (quoting Schmidt v. Safeway Inc., 864 F.Supp. 991, 997 (D. Or. 1994)); see James v. Oregon Sandblasting & Coating, Inc., No. 3:15-CV-01706-HZ, 2016 WL 7107227, at *6 (D. Or. Dec. 4, 2016) (concluding that where the employee had told “his supervisors and coworkers” about his disability “in an effort to obtain help, ” the “Plaintiff can establish an issue of fact as to whether he has a ‘record of a disability'”).

         To be sure, M&T Bank could have asked McCollin to produce medical records or other documentation to establish her disability. In this regard, 29 C.F.R. pt. 1630 app. § 1630.9 states: “When the need for an accommodation is not obvious, an employer, before providing a reasonable accommodation, may require that the individual with a disability provide documentation of the need for accommodation.” But, the Bank failed to do so. Therefore, M&T Bank cannot now contest ...


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