United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Factual and Procedural Background
a high school graduate, gave birth to her first child in
1998, without complications. ECF 63-1 at 5. 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.
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.
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.
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.
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. See ECF 63-2 (McCollin Decl.),
¶ 2; ECF 63-8 (Dep. of Bartolotta) at 4:25-5:4.
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.
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.
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
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. 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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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
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
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.
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).
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.
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
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).
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.
facts are included in the Discussion.
Standard of Review
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,
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).
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.
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.
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.).
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)).
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
“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).
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). 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.
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
EEOC asserts two ADA claims against M&T: (1) failure to
accommodate; and (2) wrongful discharge. See ECF 70
Failure To Accommodate
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.
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.
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
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.
McCollin Has A Record Of Disability
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. §
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.
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.
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
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),
(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.
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.).
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).
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).
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.
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.”
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'”).
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 ...