Heiko v. Colombo Savings Bank

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES HEIKO, 

Plaintiff-Appellant,

v.

COLOMBO SAVINGS BANK, F.S.B.,

Defendant-Appellee.  No. 04-2046

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Supporting Appellant.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Roger W. Titus, District Judge.

(CA-03-1122-RWT)

Argued: October 25, 2005

Decided: January 10, 2006

Before WILKINS, Chief Judge, and WILKINSON

and GREGORY, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Wilkinson wrote the opinion, in which Chief Judge Wil-

kins and Judge Gregory joined.

COUNSEL

ARGUED: Stephen Zak Chertkof, HELLER, HURON, CHERTKOF,

LERNER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for

2 HEIKO v. COLOMBO SAVINGS BANK

Appellant. Barbara L. Sloan, EQUAL EMPLOYMENT OPPORTU-

NITY COMMISSION, Washington, D.C., for Amicus Curiae. Kath-

erine Kristin Brewer, SCHMELTZER, APTAKER & SHEPARD,

P.C., Washington, D.C., for Appellee. ON BRIEF: Douglas B.

Huron, Tammany M. Kramer, HELLER, HURON, CHERTKOF,

LERNER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for

Appellant. Gary L. Lieber, Anessa Abrams, SCHMELTZER,

APTAKER & SHEPARD, P.C., Washington, D.C., for Appellee. Eric

S. Dreiband, General Counsel, Lorraine C. Davis, Acting Associate

General Counsel, Vincent J. Blackwood, Assistant General Counsel,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-

ington, D.C., for Amicus Curiae.

OPINION

WILKINSON, Circuit Judge:

James Heiko brings suit against his former employer, Colombo

Savings Bank, alleging a failure to promote and constructive dis-

charge on the basis of disability. At the time of the alleged discrimi-

nation, Heiko suffered from end-stage renal disease — near complete

kidney failure — and spent three afternoons per week, for a total of

twelve hours, attached to a dialysis machine that removed fatal toxins

from his blood. The district court granted summary judgment for

Colombo, holding that Heiko was not disabled under the Americans

with Disabilities Act (ADA) because the elimination of bodily waste

is not a "major life activity." See 42 U.S.C. § 12102(2)(A) (2000). It

also held in the alternative that even if Heiko was disabled, he had not

proffered facts sufficient to support a finding of discrimination.

We hold that elimination of bodily waste is a "major life activity"

within the meaning of the ADA. With respect to the allegations of

discrimination, summary judgment was improper on the claim of fail-

ure to promote, because Heiko has presented a strong prima facie case

of disability discrimination and considerable evidence of job qualifi-

cations superior to those of the person selected in his stead. Summary

judgment was proper, however, on the allegation of constructive dis-

charge. We therefore affirm in part, reverse in part, and remand for

further proceedings.

HEIKO v. COLOMBO SAVINGS BANK 3

I.

In January 1998, James Heiko commenced employment with

Colombo Savings Bank as a Loan Assistant in the Loan Administra-

tion Department. Colombo is a small commercial bank in Maryland

that employs approximately thirty people. Prior to joining Colombo,

Heiko had received his undergraduate degree in mathematics in 1994.

He had worked in the banking industry since 1990, most recently as

a research representative with the Chase Manhattan Bank.

Heiko moved quickly through the ranks at Colombo. In April 1999,

the bank’s President and CEO, John Lane, approved Heiko’s promo-

tion to Senior Operations Officer/Table-Funded Loan (TFL) Supervi-

sor. With Lane’s approval, Heiko was again promoted in June 1999,

this time to Assistant Vice President of Loan Administration. In this

new capacity, Heiko handled a wide range of commercial lending

responsibilities, including reviewing escrow analyses, monitoring

commercial loans, and preparing reports and audits. He also assumed

some supervisory authority over various lower-level employees in

Loan Administration.

Heiko had a variety of other duties at Colombo. Throughout the

course of his tenure at the bank, he was often asked to tackle prob-

lems outside the Loan Administration Department. Among other

things, he was responsible for creating a loan tracking device and a

weekly loan report. He also participated in meetings on banking mat-

ters unrelated to his primary duties. Heiko received favorable perfor-

mance evaluations, and in December 2000 Lane named him

Employee of the Year at a bank holiday function.

Heiko had polycystic kidney disease when he joined Colombo.

Several months after his promotion to Assistant Vice President, his

condition deteriorated and he was diagnosed with end-stage renal dis-

ease. This disease renders the kidneys virtually inoperative. In a nor-

mal human body, the kidneys filter from the blood dangerous toxins

that naturally build up over time, allowing these toxins to exit the

body during urination. To avoid toxic waste buildup, and death within

several months, end-stage renal disease must be treated with either a

kidney transplant or dialysis.

4 HEIKO v. COLOMBO SAVINGS BANK

Heiko began hemodialysis in November 1999. In this procedure,

Heiko’s blood was pumped through a dialysis machine, which purged

the toxins and returned the cleansed blood to his body. Heiko attached

to the dialysis machine by inserting a needle into a fistula located in

his arm. A fistula is a surgically-constructed connection between an

artery and vein, designed to withstand frequent needle insertions and

augment blood flow.

Heiko’s dialysis regimen required a substantial amount of time and

forced him to rearrange his work schedule. He underwent dialysis

three afternoons each week for four hours each day. To keep up a

forty-hour work week, Heiko had to maintain irregular hours, work-

ing from 7:00 a.m. to 2:00 p.m. on the days he received dialysis.

Heiko’s dialysis treatment caused him significant discomfort.

According to Heiko, dialysis was "like having a part-time job." Being

attached to a dialysis machine was constricting, and often caused pain

and swelling in his arm, where the needle attached to his fistula. After

dialysis, he immediately went home to rest and felt exhausted for the

remainder of the evening. He was usually able to take only baths

because standing in the shower was too difficult. In the following

mornings he would often feel the urge to vomit, and would frequently

remain nauseous well into that day. Dialysis also necessitated changes

to his diet, such as limitations on potassium intake, occasional fasting,

and a reduction in fluid consumption. Heiko was once hospitalized for

low potassium levels and had one of his kidneys removed in 2000. He

also had several surgeries to build and repair his fistula.

After Heiko had begun dialysis, Heather Brown, Colombo’s Vice

President of Loan Administration and Heiko’s immediate supervisor,

began preparing to leave Colombo. Heiko was interested in her posi-

tion, and discussed his desire for a promotion with Brown and Lane.

In March 2001, however, Lane awarded the Vice President position

to Sandy Rubin on Brown’s recommendation. Brown had considered

only Rubin and Heiko for the position, but had not conducted inter-

views.

Prior to her promotion to Vice President, Rubin had been employed

with Colombo for approximately eighteen months and had served as

the head of Colombo’s Mortgage Operations Department. She did not

HEIKO v. COLOMBO SAVINGS BANK 5

have a college degree, but had worked in banking since the mid-

1970s. The Mortgage Operations Department handled mortgage loans

and was initially distinct from Loan Administration, which was pri-

marily concerned with commercial loans. Mortgage Operations was

eventually subsumed into Loan Administration and Brown became

Rubin’s supervisor. Rubin was not, however, familiar with certain

types of management reports or with several of the computer pro-

grams utilized in the Loan Administration Department. After her pro-

motion to Vice President, Heiko assisted in training her on various

software applications and spreadsheet functions.

Upon learning that Rubin had received the promotion, Heiko

approached both Lane and Brown to determine why he had not been

named Vice President. According to Heiko, Lane referred to the num-

ber of hours the Vice President would need to work and noted that if

Heiko was to receive a kidney transplant, he would have to be out of

the office for four to six months. Heiko contends that he had informed

Lane on numerous occasions that a kidney transplant would only

require a six-week absence. When Heiko confronted Brown about

Rubin’s promotion, she replied: "Look at your situation."

Heiko warned Lane that promoting Rubin was a mistake and

informed various Colombo officers that he would not work under her.

Lane asked Heiko if he would, in addition to some of his current

responsibilities, be interested in taking over Rubin’s former responsi-

bility managing the Mortgage Operations Department, which was

apparently in disarray. Heiko declined this lateral move.

In July 2001, Heiko instead transferred to the Loan Processing

Department and began work as a loan processor. This move resulted

in the loss of his Assistant Vice President title and his previous

responsibilities, but not a diminution in his salary. Heiko was aware

that he would no longer be considered an Assistant Vice President

once he joined Loan Processing. On July 13, 2001, he was informed

that he would not receive an annual pay raise.

Soon after, Heiko complained to several Colombo officers that the

bank was discriminating against him on the basis of his kidney failure

by not promoting him and later reducing his responsibilities. He also

relayed this complaint to Lane, and they discussed the matter. Around

6 HEIKO v. COLOMBO SAVINGS BANK

the same time, Heiko informed Colombo that he had been searching

for new employment.

In early August of 2001, Lane informed Heiko that the Loan Pro-

cessing Department was overstaffed and that the only available posi-

tion was as his executive assistant. Heiko accepted this position. Lane

also told Heiko that he would not be needed before 7:30 a.m. This

impacted Heiko’s total hours, because he still had to leave early for

dialysis every other day. After several weeks as an executive assis-

tant, Lane asked Heiko to move back to Loan Administration because

a Loan Assistant position had become available. This was the position

Heiko had occupied when he first joined Colombo.

Heiko resigned from Colombo in October 2001, after accepting

employment elsewhere. In June 2003, he received a kidney transplant

and does not now require dialysis. Sandy Rubin, meanwhile, did not

fare well as the Vice President of Loan Administration. In January

2002, Lane demoted Rubin to her former position and cut her salary.

She resigned in February 2002 after Colombo decided to terminate

her employment.

Heiko filed suit against Colombo in state court in March 2003

alleging discrimination on the basis of his kidney failure, in violation

of Article 1, § 27-19 of the Montgomery County Code (2004). The

parties agreed that § 27-19 was to be interpreted consistent with the

federal ADA. As relevant here, Heiko contended that he was covered

under the definition of "disability" set forth in the ADA because his

end-stage renal disease rendered him "substantially limit[ed]" in the

"major life activit[y]" of eliminating bodily waste. See 42 U.S.C.

§ 12102(2)(A). Colombo removed the suit to federal court on the

basis of diversity jurisdiction. See 28 U.S.C. § 1441 (2000).

The district court granted summary judgment for Colombo. It held

that waste elimination was not a major life activity, and that Heiko

was therefore not disabled. It also held that even if he had a disability,

Heiko had not set forth facts sufficient to permit findings of discrimi-

natory failure to promote or constructive discharge. Heiko appeals.

II.

The threshold question before us is whether Heiko is disabled

within the meaning of the ADA. A court may resolve this issue as a

HEIKO v. COLOMBO SAVINGS BANK 7

matter of law. See Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th

Cir. 2001) (involving the parallel provisions of the Rehabilitation Act,

29 U.S.C. § 701 et seq. (2000)). While Heiko has brought this suit

under the Montgomery County Code, the relevant definition of "dis-

ability" in this municipal code is virtually identical to the ADA’s defi-

nition of the term. Compare Montgomery County, Md., Code art. 1,

§ 27-6(c) with 42 U.S.C. § 12102(2). The parties agree that the Mont-

gomery County Code tracks the ADA in all relevant respects, and we

accordingly analyze this case under that federal statute. See also

Cohen v. Montgomery County Dep’t of Health & Human Servs., 817

A.2d 915, 922-25 (Md. Ct. Spec. App. 2003) (interpreting the disabil-

ity discrimination provisions in the Montgomery County Code as con-

gruent with the ADA).

The ADA provides that an individual has a disability if, inter alia,

he suffers from "a physical or mental impairment that substantially

limits one or more of [his] major life activities." 42 U.S.C.

§ 12102(2)(A). Heiko is thus required to make a three-part showing.

He must prove (1) that he has a physical or mental impairment, (2)

that this impairment implicates at least one major life activity, and (3)

that the limitation is substantial. See Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 194-95 (2002); Bragdon v. Abbott, 524 U.S.

624, 631 (1998); Pollard v. High’s of Baltimore, Inc., 281 F.3d 462,

467 (4th Cir. 2002). The parties agree that Heiko’s end-stage renal

disease constitutes a physical impairment. We thus proceed to the

major life activity and substantial limitation questions.

A.

The ADA does not define the term "major life activities." Torcasio

v. Murray, 57 F.3d 1340, 1353 (4th Cir. 1995). The Supreme Court

has, however, explained that "‘[m]ajor’ in the phrase ‘major life activ-

ities’ means important." Toyota Motor Mfg., 534 U.S. at 197. An

activity may lack a "public" or "economic" dimension and still be

considered important. Bragdon, 524 U.S. at 638. We have therefore

concluded that "[t]he term ‘major life activities’ refers to ‘those activ-

ities that are of central importance to daily life,’" Rohan v. Networks

Presentations LLC, 375 F.3d 266, 274 (4th Cir. 2004) (quoting

Toyota Motor Mfg., 534 U.S. at 197) and "that the average person in

8 HEIKO v. COLOMBO SAVINGS BANK

the general population can perform with little or no difficulty," id.

(internal quotation marks omitted).

Heiko contends that his kidney failure severely impacted his ability

to eliminate bodily waste. Under the framework presented above, we

conclude that waste elimination qualifies as a major life activity. The

elimination of bodily waste is basic to any person’s daily regimen. It

is also a daily activity that the average person can accomplish with

little effort, see Rohan, 375 F.3d at 274, by urinating several times a

day. The elimination of bodily waste is, moreover, not only "of cen-

tral importance to daily life," Toyota Motor Mfg., 534 U.S. at 197, but

of life-sustaining importance. Without it, hazardous toxins would

remain in the body and eventually become fatal. For all of these rea-

sons, waste elimination also fits comfortably within the Equal

Employment Opportunity Commission’s (EEOC) non-exhaustive list

of major life activities, which includes "functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." 29 C.F.R. § 1630.2(i) (2004).1

It is therefore not surprising that every circuit court to address the

issue has concluded that waste elimination is a major life activity. For

example, in Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 380 (3d

Cir. 2004), the plaintiff suffered from end-stage renal disease and

received dialysis treatment. The Third Circuit concluded that "pro-

cessing and eliminating waste from the blood qualifies as a major life

activity because, in their absence, death results." Id. at 384; see Kam-

mueller v. Loomis, Fargo & Co., 383 F.3d 779, 785 (8th Cir. 2004)

(holding that plaintiff who underwent dialysis was "incapable of

doing activities of central importance to a person’s life, such as

cleansing one’s own blood cells"); see also Gilbert v. Frank, 949 F.2d

637, 641 (2d Cir. 1991) (noting that "persons whose kidneys . . . do

not function sufficiently to rid their bodies of waste matter without

1

The degree of deference, if any, that is due to the EEOC’s regulations

remains an open question. See Albertson’s, Inc. v. Kirkingburg, 527 U.S.

555, 563 n.10 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 480

(1999). Because the parties agree that the regulations are instructive, we

look to the regulations for general guidance and express no opinion on

the appropriate level of deference they may be due. See Pollard, 281

F.3d at 468 n.2.

HEIKO v. COLOMBO SAVINGS BANK 9

regular dialysis" may be "substantially limited in their ability to care

for themselves").

The district court reasoned, however, that waste elimination was

not a major life activity because it was merely a characteristic of

Heiko’s kidney failure. This was not correct. The impairment in this

case is Heiko’s kidney failure. The effect of this impairment is an

inability to eliminate waste naturally. See also Fiscus, 385 F.3d at 382

("Absence of kidney function [is] the impairment; the consequence

[is] the impact on the activity of blood cleansing and body waste pro-

cessing. Thus it was incorrect for the District Court to conflate the

two.").2

Were the district court correct, the ADA would not cover major life

activities that are closely linked with serious disabilities. For example,

the Supreme Court in Toyota explicitly noted that "major life activi-

ties" is "a category that includes such basic abilities as walking, see-

ing, and hearing." 534 U.S. at 197. But an inability to see could of

course be recast as a characteristic of blindness, and an inability to

hear could likewise be reframed as a feature of deafness. See also 29

C.F.R. § 1630.2(i) ("major life activities" include seeing and hearing).

Waste elimination thus cannot be a mere "characteristic" of end-stage

renal disease for the purposes of the ADA.

This does not mean, however, that every example of organ failure

will be equated with a major life activity. In this case, kidney failure

is a physical impairment with a direct effect on waste elimination, an

activity of critical importance that the average individual can easily

perform. See Rohan, 375 F.3d at 274. We have no occasion to con-

sider whether the malfunction of other organs would have a similar

2

Colombo’s reliance on Furnish v. SVI Systems, Inc., 270 F.3d 445

(7th Cir. 2001), is therefore misplaced. In Furnish, a plaintiff with Hepa-

titis B brought suit under the sole theory that he was substantially limited

in the major life activity of "liver function." Id. at 450. In rejecting this

argument, the Seventh Circuit noted that the plaintiff might have suc-

ceeded had he tied his impairment to a valid major life activity. Id. In this

case, Heiko has done precisely that, and is not contending that "kidney

function" is a major life activity. See also Fiscus, 385 F.3d at 385 (distin-

guishing Furnish on identical grounds).

10 HEIKO v. COLOMBO SAVINGS BANK

effect on a major life activity. See Fiscus, 385 F.3d at 383 ("[M]ajor

life activities are conceptually distinct from the physical impairments

that give[ ] rise to them."). Such questions are simply not before us.

Nor do we accept Colombo’s contention that recognizing waste

elimination as a major life activity would effectively read out the sep-

arate statutory requirement that a plaintiff prove he is substantially

limited. To be sure, recognition of a major life activity gives rise to

the implication that certain impairments are by their very nature sub-

stantially limiting: the major life activity of seeing, for example, is

always substantially limited by blindness. See, e.g., Runnebaum v.

NationsBank of Md., N.A., 123 F.3d 156, 166 n.5 (4th Cir. 1997) (en

banc) (plurality) ("[W]e recognize that some conditions will always

constitute impairments that substantially limit the major life activities

of the afflicted individual.") abrogated on other grounds, Bragdon,

524 U.S. at 631. It would be ironic, to say the least, if the existence

of such severe conditions prevented us from recognizing the major

life activities they impair. Nevertheless, the substantiality inquiry

remains analytically separate from the identification of a major life

activity. As we demonstrate below, whether a person is substantially

limited is a distinct and individualized inquiry that must consider not

only a particular plaintiff’s limitations, but also the effects of correc-

tive mitigation measures. See Sutton v. United Air Lines, Inc., 527

U.S. 471, 482-83 (1999); Halperin v. Abacus Tech. Corp., 128 F.3d

191, 198 n.10 (4th Cir. 1997). Not every impairment of sight is a sub-

stantial limitation, see Sutton, 527 U.S. at 488-89, and there is little

reason to think that every instance of kidney disease will constitute

a substantial limitation either.

B.

We thus turn to whether Heiko’s kidney failure "substantially

limit[ed]" his ability to eliminate waste. 42 U.S.C. § 12102(2)(A).

The statutory term "substantially" means "considerable or to a large

degree." Toyota Motor Mfg., 534 U.S. at 196 (internal quotation

marks omitted). This definition precludes coverage of impairments

whose effects on a major life activity rise only to the level of a "mere

difference" with the abilities of an average individual. Albertson’s,

Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999); see also EEOC v. Sara

Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (no substantial limi-

HEIKO v. COLOMBO SAVINGS BANK 11

tation in major life activity of sleeping where plaintiff did not experi-

ence a greater lack of sleep than the average individual). As we have

explained, "[t]he phrase ‘substantially limits’ sets a threshold that

excludes minor impairments from coverage under the ADA." Id. at

352.

Among the factors courts should consider in making the substantial

limitation determination are the impairment’s "nature and severity"

and "expected duration." 29 C.F.R. § 1630.2(j)(2)(i)-(ii); see also Pol-

lard, 281 F.3d at 467-68 (same). The impairment must, for example,

be "permanent or long term." Toyota Motor Mfg., 534 U.S. at 198.

Sporadic or otherwise temporary impairments do not qualify as sub-

stantial limitations. See Rohan, 375 F.3d at 276; Pollard, 281 F.3d at

468.

Whether Heiko is substantially limited in a major life activity is

thus determined by examining the unique facts and circumstances sur-

rounding his particular impairment. See Toyota Motor Mfg., 534 U.S.

at 198; Sutton, 527 U.S. at 483; Ennis v. Nat’l Ass’n of Bus. & Educ.

Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995). We conduct this inquiry

by assessing the impairment in combination with any positive or neg-

ative effects from mitigation measures. See Sutton, 527 U.S. at 482.

Reviewing Heiko’s end-stage renal disease and dialysis under this

individualized framework, we conclude that Heiko was substantially

limited in his ability to eliminate waste. Indeed, no reasonable jury

could conclude otherwise. In order to accomplish the equivalent of

urination, Heiko had to insert a needle into his surgically-fashioned

fistula and tether himself to a dialysis machine three afternoons per

week, for a total of twelve hours. This did not include travel time to

and from the dialysis center, or the time required to set up the dialysis

equipment. Dialysis also unyieldingly set the terms of his daily sched-

ule. While he was able to work a forty-hour week, his condition

required him to arrive at work by 7:00 a.m. every other day. And

whereas urination does not have side effects, after dialysis Heiko felt

nauseous and depleted, unable even to stand in the shower. These

aspects of his renal failure and concomitant treatment dramatically

"distinguish [him] from the general population" in the major life

activity of waste elimination. Rohan, 375 F.3d at 275. And while dial-

ysis did of course enable Heiko to eliminate waste, the ADA "ad-

12 HEIKO v. COLOMBO SAVINGS BANK

dresses substantial limitations on major life activities, not utter

inabilities." Bragdon, 524 U.S. at 641.

Heiko’s impairment was also neither fleeting or temporary, Rohan,

375 F.3d at 276, as he dealt with dialysis and its unfortunate effects

each day. The prospect of a kidney transplant was speculative at best

— Heiko waited on a transplant list for over two years, and only

received a new kidney after nearly four years of dialysis. Crucially,

at all times relevant to this case, he labored under the uncompromis-

ing limitations we have just described. For all of these reasons,

Heiko’s impairment and mitigation measures rise to the level of

severity that the substantial limitation requirement demands. See 29

C.F.R. § 1630.2(j)(2)(i).3

C.

In sum, plaintiff’s end-stage renal disease is his physical impair-

ment, the elimination of waste is the major life activity that is limited,

and the limitation was a substantial one because Heiko was required

to spend at least four hours, three days a week undergoing dialysis in

order to remove waste from his body. Considering Heiko’s circum-

stances through any broader lens on disability only reconfirms a close

textual analysis under the statute. We can hardly believe that Con-

gress wished to leave outside the purview of the ADA an individual

determined to surmount a real disability and make a constructive con-

tribution to the workplace. The ADA was designed to protect the

"truly disabled, but genuinely capable." See Halperin, 128 F.3d at

200. In short, Heiko seems just the sort of person for whom the ADA

was intended. Viewed from the perspective of the forest or the trees,

the Act’s coverage of him is apparent.

3

We express no view on whether other plaintiffs with end-stage renal

disease will be substantially limited in a major life activity. Like all oth-

ers claiming an impairment under the Act, they must prove "the extent

of the limitation in terms of their own experience." Albertson’s, 527 U.S.

at 567. Whether a plaintiff is substantially limited is a case-by-case deter-

mination, Sara Lee Corp., 237 F.3d at 352, and we therefore have no

occasion to consider whether individuals who require less time-

consuming dialysis treatment or exhibit fewer adverse side effects will

be disabled under the ADA.

HEIKO v. COLOMBO SAVINGS BANK 13

III.

We next address the district court’s grant of summary judgment to

Colombo on Heiko’s failure to promote and constructive discharge

claims. We conclude that summary judgment was improper on the

claim of failure to promote, which presents a jury question. As to

Heiko’s constructive discharge contention, the district court properly

awarded summary judgment to the employer.

A.

Heiko first alleges that Colombo did not promote him to Vice Pres-

ident of Loan Administration because of his end-stage renal disease.

Colombo contends that it promoted Sandy Rubin instead of Heiko due

to her superior qualifications. Because Colombo disclaims any sug-

gestion that its decision was founded on Heiko’s disability, this case

is properly analyzed under the familiar framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its

progeny. See Halperin, 128 F.3d at 196 n.6; Ennis, 53 F.3d at 57-58;

see also Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003) (not-

ing that courts use the McDonnell Douglas methodology for ADA

disparate-treatment claims).4

Under McDonnell Douglas, the plaintiff must first make out a

prima facie case of discrimination. See Anderson v. Westinghouse

Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). If he does so

successfully, the burden then shifts to the defendant to provide a legit-

imate, non-discriminatory explanation for its decision. See Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Bryant v.

Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 545 (4th Cir. 2003). Once

such a neutral reason is proffered, the burden reverts to the plaintiff

4

Colombo does not contend that promoting an individual who was

required to leave the office three afternoons per week was an accommo-

dation that "would impose an undue hardship" on its operations. 42

U.S.C. § 12112(b)(5)(A); see also Montgomery County, Md., Code art.

1, § 27-6(bb). We therefore express no opinion on whether small busi-

nesses like Colombo, whose enterprise requires interaction with custom-

ers and supervision of employees during normal business hours, are

required to accommodate disabilities in such a fashion.

14 HEIKO v. COLOMBO SAVINGS BANK

to establish that the employer’s non-discriminatory rationale is a pre-

text for intentional discrimination. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000). At this point, "a plaintiff’s

prima facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of fact

to conclude that the employer unlawfully discriminated." Id. at 148;

see also Anderson, 406 F.3d at 269.

B.

There can be no doubt in this case that Heiko has established at

least a prima facie inference of discrimination, and that Colombo has

successfully rebutted it by responding that it selected Rubin over

Heiko due to her superior qualifications. See Evans v. Techs. Applica-

tions & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) ("[R]elative

employee qualifications are widely recognized as valid, non-

discriminatory bases for any adverse employment decision."). We

thus turn to the crux of the matter — whether there is sufficient evi-

dence of pretext. Reeves, 530 U.S. at 143. A plaintiff alleging a fail-

ure to promote can prove pretext by showing that he was better

qualified, or by amassing circumstantial evidence that otherwise

undermines the credibility of the employer’s stated reasons. See

Anderson, 406 F.3d at 269; Dennis v. Columbia Colleton Med. Ctr.,

Inc., 290 F.3d 639, 648-49 & n.4 (4th Cir. 2002).

In conducting this analysis, we are mindful that we assess relative

job qualifications based on the criteria that the employer has estab-

lished as relevant to the position in question. See Anderson, 406 F.3d

at 269 (citing Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997)

and Jiminez v. Mary Washington Coll., 57 F.3d 369, 383 (4th Cir.

1995)). Here, Colombo focused primarily on banking skills and expe-

rience. In a job description of the Vice President position, Colombo

listed as the relevant job specifications computer literacy and "[l]oan

managerial servicing/administration experience in a banking atmo-

sphere." Heather Brown testified that there was no "specific formula"

she used to evaluate candidates, but that banking experience and how

much training the candidate would require were primary consider-

ations.

Construing the facts in favor of Heiko, as we must, we conclude

that a reasonable factfinder could determine that Colombo’s explana-

HEIKO v. COLOMBO SAVINGS BANK 15

tion for its promotion decision is "unworthy of credence." Burdine,

450 U.S. at 256. Heiko was climbing his way toward the upper rungs

of Loan Administration when his kidney condition declined and he

began extensive dialysis treatment. He was then denied a promotion.

Heiko has satisfied his burden under McDonnell Douglas because in

light of Colombo’s proffered job criteria, a reasonable jury could con-

clude — on the basis of Heiko’s greater familiarity with various

aspects of commercial lending, his superior mastery of the relevant

computer programs used in the Loan Administration Department, his

quick succession of promotions, and his performance evaluations —

that Colombo’s contention that he was less qualified than Rubin is not

to be believed. We address each in turn.

First, a reasonable factfinder could determine that by the time of

Rubin’s promotion, Heiko had comparatively greater experience with

both the Loan Administration Department and commercial lending,

one of the primary banking areas handled by that department. Heiko

had been employed with Colombo for over three years, all in Loan

Administration. His duties as Senior Operations Officer/TFL Supervi-

sor and Assistant Vice President of Loan Administration both

required intimate knowledge of commercial lending practices and

procedures. Nor was Heiko unacquainted with mortgage lending, as

illustrated by the fact that he was asked to manage the Mortgage

Operations Department after Rubin was promoted.

Rubin, by contrast, had worked in the banking industry since the

mid-1970s, but her speciality was mortgage loans. She had only

started with Colombo in August 1999, a year and a half before her

eventual promotion to Vice President. Colombo does not dispute that

she initially reported to Heiko when she first joined the bank. While

Rubin’s Mortgage Operations Department was merged under Loan

Administration before she was promoted to Vice President, her main

responsibilities continued to concern mortgage lending. According to

Heiko, Rubin informed him that she had not dealt with commercial

loan documents recently in her career. President Lane himself noted

that Rubin needed to enhance her understanding of commercial lend-

ing practices. And as of her 2000 performance evaluation, one of her

"principal weaknesses" was that she was still in the process of learn-

ing "the bank’s philosophy." She was not, for example, familiar with

several of Loan Administration’s management reports. Heiko was.

16 HEIKO v. COLOMBO SAVINGS BANK

Second, Rubin’s lack of knowledge about the inner workings of

Loan Administration was made evident in her comparative unfamil-

iarity with the computer programs critical to that department. In a job

description for the Vice President position, Colombo listed the fol-

lowing as the first job specification: "Must be computer literate. Must

have spreadsheet and word processing experience." Heather Brown

expressly acknowledged that Heiko had computer skills that out-

matched Rubin’s. He had taken undergraduate courses in computer

science, was versatile in numerous software programs, and had used

advanced software applications in a variety of special projects, such

as his creation of a loan tracking device. He was also familiar with

predecessor versions of the bank’s data processing system. Rubin had

no such experience, and Colombo does not dispute that upon Rubin’s

promotion to Vice President, both Heiko and Brown had to train her

on spreadsheet software. While Colombo presently appears to suggest

that computer experience was not a relevant criterion for selecting a

Vice President, a jury could certainly conclude otherwise in light of

the fact that it was listed as the first job specification for the position.

See Dennis, 290 F.3d at 646-47 (pretext may be inferred from

employer’s reliance on criteria that are different from those contained

in written job qualifications).

Third, Heiko was on the rise at Colombo. His success at the bank

translated into a swift series of promotions prior to the time when he

began dialysis. A little over a year after he started in Loan Adminis-

tration, he was elevated to Senior Operations Officer/TFL Supervisor,

a position that required a wide range of customer service and com-

puter skills, as well as "[w]orking knowledge of the financial institu-

tion’s commercial and consumer lending procedures." Several months

later, in June 1999, John Lane named him Assistant Vice President of

Loan Administration. Lane announced the promotion in a congratula-

tory memorandum circulated to the entire bank, writing that Heiko

"has shown outstanding leadership and knows how to be a team

player." Heather Brown had recommended Heiko for this promotion

in part because of his "positive attitude." In his new capacity as Assis-

tant Vice President, Heiko assumed an even greater number of

responsibilities, including supervising various employees in Loan

Administration. In July 1999, Heather Brown recommended him for

a five percent pay increase, noting that Heiko was "responsible for

day-to-day operations" in Loan Administration, and that he was a

HEIKO v. COLOMBO SAVINGS BANK 17

"very hard working individual" who was "loyal and supportive of

Colombo."

Lastly, Heiko’s performance evaluations illustrate his professional

momentum, and provide another critical point of comparison with

Sandy Rubin. In 1999, Rubin was given a 53 out of 60, and Heather

Brown rated Heiko a 44 out of 60. Brown did note, however, that

"Jim is a very organized individual who is willing to help others

achieve their goals," and that he had undertaken several projects out-

side of his normal job responsibilities. By 2000, Colombo’s assess-

ment of the two had changed. In that year, Brown gave Heiko a 53

of 60, writing that he was a "team player" whose customer service had

improved. She also recommended that he be given further managerial

training and more supervisory responsibility. Rubin, by comparison,

was given a 50 out of 60, and her evaluator wrote that her "weakness-

[es] would be a continual learning process of the bank’s philosophy

and knowledge of overall banking."

While Colombo does point to areas in Heiko’s performance evalua-

tions suggesting that he could improve his interpersonal skills, there

is ample evidence pointing in precisely the opposite direction. Brown,

for example, testified that Heiko’s interpersonal skills had improved

since his 2000 performance evaluation. Heiko was also named

Employee of the Year in December 2000. Though Colombo contends

that it gave Heiko this award for "humanitarian" reasons, a jury could

certainly believe that bestowing such an award at a company-wide

gathering to an employee moving his way up the corporate ladder was

not solely a token gesture.

Colombo’s primary defense of its promotion decision is that Rubin

was chosen because she had greater management expertise due to her

previous jobs at other banks and her role in the Mortgage Operations

Department. But this does not "conclusively reveal[ ] some other,

nondiscriminatory reason for [Colombo’s] decision." Reeves, 530

U.S. at 148. In his capacity as Assistant Vice President, Heiko did

supervise several employees in Loan Administration, and Heather

Brown specifically recommended in his 2000 performance evaluation

that he be given greater managerial responsibility. In addition, when

Rubin was promoted to Vice President, Lane specifically asked Heiko

if he would head up the Mortgage Operations Department, the depart-

18 HEIKO v. COLOMBO SAVINGS BANK

ment that Rubin formerly led. And while Rubin may have had more

years of management experience than Heiko, Colombo does not dis-

pute that the department Rubin had recently overseen was in need of

a major turn-around. Nor is it clear how Rubin’s management experi-

ence made her a stronger candidate when as of her 2000 employment

evaluation, one of her main weaknesses was a lack of "knowledge of

overall banking."

In short, a reasonable factfinder could conclude that Heiko was

poised for the Vice President position and displayed aptitude for his

chosen profession. He began dialysis shortly after becoming an Assis-

tant Vice President, and was thereafter denied a promotion, which

was instead given to a fellow employee who lacked many of his quali-

fications. We therefore conclude that Heiko has made a sufficient

showing that Colombo’s explanation for its promotion decision was

pretextual. While no single factor is dispositive, taken in combination

they suggest that Heiko was discernibly better qualified than Rubin.

When a plaintiff asserts job qualifications that are similar or only

slightly superior to those of the person eventually selected, the pro-

motion decision remains vested in the sound business judgment of the

employer. See Dennis, 290 F.3d at 649 n.4; Evans, 80 F.3d at 960.

But where, as here, the plaintiff has made a strong showing that his

qualifications are demonstrably superior, he has provided sufficient

evidence that the employer’s explanation may be pretext for discrimi-

nation. Anderson, 406 F.3d at 269.5

5

Heiko also points to various statements by Colombo officers that he

argues may be probative of discriminatory bias. For example, Lane alleg-

edly made a reference to the time Heiko would need to be out for a kid-

ney transplant, and Brown said "Look at your situation" when he asked

why Rubin was promoted. Because we conclude that Heiko’s prima facie

case and his evidence of superior qualifications fairly rebut Colombo’s

asserted non-discriminatory rationale, Reeves, 530 U.S. at 148-49, it is

unnecessary for us to address these various remarks, some of which are

rather opaque. We note, however, that a jury could find them relevant in

its determination of whether Colombo in fact discriminated against

Heiko on the basis of his disability. See id. at 152.

HEIKO v. COLOMBO SAVINGS BANK 19

IV.

We now turn to Heiko’s constructive discharge claim. Heiko con-

tends that he was forced to leave Colombo because the bank reduced

his responsibilities and made his workday unbearable. To prove con-

structive discharge, a plaintiff must at the outset show that his

employer "deliberately made [his] working conditions intolerable in

an effort to induce [him] to quit." Matvia v. Bald Head Island Mgmt.,

Inc., 259 F.3d 261, 272 (4th Cir. 2001) (internal quotation marks

omitted). Plaintiff must therefore demonstrate: (1) that the employer’s

actions were deliberate, and (2) that working conditions were intolera-

ble. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186-87

(4th Cir. 2004); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d

239, 244 (4th Cir. 1997). An employer’s actions are deliberate only

if they "were intended by the employer as an effort to force the plain-

tiff to quit." Matvia, 259 F.3d at 272. Whether an employment envi-

ronment is intolerable is determined from the objective perspective of

a reasonable person. Williams v. Giant Food Inc., 370 F.3d 423, 434

(4th Cir. 2004). "However, mere dissatisfaction with work assign-

ments, a feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable

person to resign." James v. Booz-Allen & Hamilton, Inc., 368 F.3d

371, 378 (4th Cir. 2004) (internal quotation marks and alterations

omitted).

On the record before us, Heiko has not shown a deliberate intent

on the part of Colombo to force him to leave. See Honor, 383 F.3d

at 187. In fact, it was Heiko himself who initiated the events that ulti-

mately led to his departure. Upon Rubin’s promotion to Vice Presi-

dent, Heiko told Lane that Rubin’s selection was a mistake and

announced that he would not work under her. Heiko was then offered

a lateral transfer to a position in the Mortgage Operations Depart-

ment, which he also refused. Instead, with full awareness that he

would lose his Assistant Vice President title and his Loan Administra-

tion responsibilities, he chose to relocate to the Loan Processing

Department. Colombo allowed him to do this even though he had rel-

atively less experience with loan approval, this department’s primary

responsibility. Colombo also later made room for him in several dif-

ferent positions.

20 HEIKO v. COLOMBO SAVINGS BANK

While Heiko was progressively asked to undertake tasks more

menial than those to which he was accustomed, he does not contend

that such duties were inappropriate for someone who did not occupy

an Assistant Vice President position. And though he did not receive

an annual raise, he does not suggest that the salary he received was

incommensurate with his reduced responsibilities at that time.

Far from revealing that the bank deliberately intended to force him

to leave, Colombo’s actions squarely indicate that it exercised com-

mendable patience with an employee who was frustrated, perhaps jus-

tifiably, over not receiving a promotion. And while Heiko suggests

that the bank could have adopted a restructuring proposal that might

have created a new position for him, it surely cannot be the case that

deliberateness may be proven by an otherwise benign business deci-

sion concerning internal corporate configuration.

Even if Heiko could prove that Colombo deliberately intended to

force him out, he still cannot show that the work environment at the

bank was objectively intolerable. See Munday, 126 F.3d at 244. That

Heiko was not made Vice President is hardly conclusive, because "the

denial of a single promotional opportunity is insufficient to create an

intolerable working environment." Taylor v. Va. Union Univ., 193

F.3d 219, 237-38 (4th Cir. 1999) (en banc) abrogated on other

grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). And Heiko

does not suggest that the bank objected to the unconventional sched-

ule he was required to maintain in order to undergo dialysis. To be

sure, his schedule was altered by a half-hour when he briefly worked

as Lane’s executive assistant, but Lane recommended that he return

to Loan Administration in part because it would afford him more flex-

ibility. Furthermore, while comments coworkers made that Heiko was

only working "half days" may reveal an insensitivity to his disability,

they do not nearly rise to the level of intolerability. "[D]ifficult or

unpleasant working conditions" do not qualify as intolerable condi-

tions, Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994), nor are

employees "guaranteed a working environment free of stress," Honor,

383 F.3d at 187 n.2 (internal quotation marks omitted).

V.

The Americans with Disabilities Act and parallel state and local

statutes reflect our national commitment that disabled persons should

HEIKO v. COLOMBO SAVINGS BANK 21

lead lives that, to the extent possible, are unencumbered by the dis-

abilities that have befallen them. An individual’s impairment should

not operate to restrain his professional aspirations when in spite of his

limitations, he has dedicated himself to his craft and sought advance-

ment in his field. In the face of formidable obstacles, plaintiff per-

sisted in his desire to develop his banking skills. While the ADA

protects only a limited segment of our population, James Heiko fits

clearly within its bounds. And though Colombo at times appears to

have been appreciative of Heiko’s work, there is sufficient evidence

for a jury to conclude that its denial of a promotion was made on a

prohibited basis. Accordingly, the judgment is therefore

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.