Petition for Writ of Certiorari — Pollard v. High's of Baltimore, Inc.

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Supreme Court, U.&.

‘ora: FILED

vv iisss5 JUN 2 4 2003

In he

Supreme Court of the Hnited States

MARY D. POLLARD,

Petitioner,

Vv.

HIGH’S OF BALTIMORE,

INCORPORATED,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

David W. Skeen

WRIGHT, CONSTABLE & SKEEN, L.L.P.

100 North Charles Street, 16th Floor

Baltimore, Maryland 21201

(410) 659-1305

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

O40,

QUESTIONS PRESENTED

WHAT ARE THE STANDARDS FOR DETERMINING

WHETHER THE ADA’S DEFINITION OF DISABILITY

COVERS A BACK IMPAIRMENT THAT, ACCORDING

TO EXPERT MEDICAL TESTIMONY, SIGNIFICANTLY

RESTRICTS AN INDIVIDUAL, AS COMPARED TO THE

AVERAGE PERSON, IN THE ACTIVITIES OF LIFTING,

STANDING, BENDING, STOOPING, KNEELING, AND

REMAINING IN ONE POSITION, AND WHICH,

ACCORDING TO EXPERT VOCATIONAL

TESTIMONY, FORECLOSES THAT INDIVIDUAL

FROM MORE THAN SEVENTY PERCENT OF JOBS IN

THE RELEVANT LABOR MARKETS?

WHAT ARE THE STANDARDS FOR DETERMINING

WHETHER AN EMPLOYER REGARDS- AN

INDIVIDUAL WITH AN IMPAIRMENT AS DISABLED

IN ONE OR MORE MAJOR LIFE ACTIVITIES,

INCLUDING WORKING?

LIST OF PARTIES

The Petitioner is Mary D. Pollard.

The Respondent is High’s of Baltimore, Inc.

egg et Win ee ees.

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TABLE OF CONTENTS

QUESTIONS PRESENTED.................csccscsssssesssssssssssssesrens i

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TABLE OF CONTENT SS.............cccscscsscrsssossosesssvcvnsveosooooes ill

TABLE OF AUTHORITIES. ......cocsscccossscorovcsvesssscceseeccsseees v

PETITION FOR WRIT OF CERTIORARI.............:::ceeeees 1

EFT EAS WY sessisrssecesssovessesbosnsnnnsesossvcesnosssseroesesonones 1

Bee Fe FURL, LERIEN sessnsnsisssvscsescossecnsssesvesonsveseesss 1

STATUTORY PROVISIONS INVOLVED............:cceeeeees 2

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REASONS FOR GRANTING THE WRIT... eeeeeeeees 5

I. The Result Reached By The Fourth Circuit On The

Issue Of Whether’ Petitioner's Impairment

Substantially Limits Her In Any Major Life Activity,

And The Standards Which The Fourth Circuit Used

To Reach That Decision, Conflict With The

Decisions And Standards Endorsed By Other Circuits

SS I sis cic sarbsuvinekneusacanmnatiaapcmeisnnciedinnns 5

II. The Fourth Circuit’s Standards For Determining

Whether An Individual Is Regarded As Disabled

Conflict With The Sixth Circuit’s Standards ........ 13

See senssenhirpinseiisctnisesicdicndsibstinnssationiibaiinanbienaunnnol 15

APPENDIX

TABLE OF AUTHORITIES

Cases

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) ......... 9

Bennett v. Unysis Corp., 2000 U.S. Dist. LEXIS 18143 (E.D.

Pan, 2000) ...ccccecsrossvoccscccvesserevesencepescnsscsonsnesnvessonspesconsvensven 11

Burns v. Coca Cola Enterprises, 222 F.3d 247 (6" Cir. 2000)

seséaucoenecl ensbeonennvesusateelaninbeentecseieaeanipeemnneaenentts passim

Cleveland v. Policy Management Systems Corp., 526 U.S.

799 (1999) ..ccccoccoccsocccvesscsosesenccsesvensoverovsesesvovesssessssooesooooses 11

Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7" Cir. 1996)

DePaoli v. Abbott Lab., 140 F.3d 668 (7"" Cir. 1998) 11, 13

Deppe v. United Airlines, 217 F.3d 1262 (9" Cir. 2000) ....12

Henderson v. Ardco, Inc., 247 F.3d 645 (6" Cir. 2001) 11, 14

Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3"

Cee TD cncctntepsorrinsininnineminininimnmmanaamnama P)

Pollard v. High’s of Baltimore, Inc., 281 F.3d 462 (4° Cir.

DIE IAD .....csecssssedlesesusssanieanentacenuconsiaenmunatenanmananananits ii, 1

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) ..11, 12

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3 Cir.

SUIS... cisssseaanesinicsnnsenrisieanieaneciuetamunmagpiaaaalaaans 10, 11

Toyota Motor Mfg. v. Williams, 534 U.S. 184 . ¢ 9

Webb v. Garelick Mfg. Co., 94 F.3d 484 (8" Cir. 1996).....11

Webner v. Titan Distribution, Inc., 267 F.3d 828 (8"" Cir.

SIAIEE } ....n:ivisisissaninnssaitasedclacceeiaiaeincmainmenas aannne 7,9

Williams v. Channel Master Satellite Systems, Inc., 101 F.3d

PE a RRR ss 12

Statutes

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101

Ct. SEQ. ..rccsssecccccccccccvccccccccesseseresscccscceccccoeseneees passim

PETITION FOR WRIT OF CERTIORARI

Petitioner Mary D. Pollard respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fourth Circuit

entered in this proceeding on February 25, 2002 in order to

review the important issues presented herein.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit in Pollard v. High’s of Baltimore, Inc.,

281 F.3d 462, 2002 U.S. App. LEXIS 13759 (4™ Cir.

2/25/02), is set forth in the Appendix hereto. App. 1a.

The Memorandum Opinion of the United States

District Court for the District of Maryland (Northern

Division) is unreported and is set forth in the Appendix

hereto. App. 15a.

BASIS FOR JURISDICTION

The final judgment of the United States Court of

Appeals for the Fourth Circuit affirming the decision of the

United States District Court for the District of Maryland

(Northern Division) was entered on February 25, 2002. App.

la. On March 25, 2002, the Court of Appeals denied the

petition for rehearing and rehearing en banc. This petition for

a writ of certiorari is filed within ninety (90) days of that

date. 28 U.S.C. § 2101(c).

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

ec rsbdina eh.

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 12102(2)

Disability. The term disability means, with

respect to an individual —

(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

impairment.

STATEMENT OF THE CASE

Petitioner brought this action under the Americans

with Disabilities Act of 1990 (the “ADA”) against

Respondent, invoking 28 U.S.C. §§ 1331 and 1343 as bases

for federal jurisdiction

An orthopedic physician has opined that, on a

permanent basis, Petitioner's back injury significantly

restricts her, as compared to the average person, in the

activities of standing, lifting, bending, stooping, kneeling,

and remaining in one position. A vocational expert has

opined that the impairment forecloses Petitioner from more

than 70% of jobs in the relevant labor markets

Petitioner suffered the injury on August 25, 1997

while employed by Respondent as an Area Supervisor

overseeing mumerous convenience stores operated by

Respondent. The injury forced Petitioner to alternate

between working in physical misery, and taking leave on

doctor's orders, until January 1998, when she underwent

diskectomy surgery for the injury and began rehabilitation

efforts

In June 1998, an orthopedic physician and a

rehabilitation expert concluded that Petitioner was ready to

retunm to her Area Supervisor job, with certain

accommodations

Respondent resisted, staiing in August 1998 that it

didn’t want Petitioner back until she could “lift more,” and

telling Petitioner on September 18 that it would not allow her

to return to her Area Supervisor job unless she first worked

eae EAN Be OR Ee tee Pee er ae

as a store clerk, a much-more-physically-demanding job than

Area Supervisor.

Determined to regain her Area Supervisor job,

Petitioner acceded and worked as a store clerk from

September 23 to October 29, 1998. The store-clerk duties

inflicted debilitating back-related pain and humiliation on

Petitioner — on top of financial duress: Respondent paid

Petitioner only $5.60 per hour, or $12,000 annualized, as a

store clerk, while she'd earned approximately $40,000

annually as an Area Supervisor.

While working as store clerk, Petitioner begged

Respondent for her Area Supervisor job, providing

Respondent in late September with a note from her

orthopedist stating — once again - that she was ready to return

to her Area Supervisor job, with certain restrictions.

Respondent stonewalled. On October 16 and 27, its

Operations Manager stated that “it appeared to” him that

Petitioner might be unable to increase her tolerance for work

and that he was “not optimistic” about her anticipated

improvement.

In physical, emotional, and financial despair,

Petitioner left Respondent’s employ on October 29, having

concluded that Respondent was placing the Area Supervisor

position out of her reach — because of her back impairment.

Petitioner then brought this action, claiming that,

under the ADA, she is an individual with a disability,

because her back impairment substantially limits her in one

or more major life activities (including working) and/or she

was regarded as being so substantially limited by

Respondent; and that Respondent discriminated against her

in violation of the ADA by refusing to return her to her Area

Supervisor job (even though physicians and a vocational

expert said she could perform that job with accommodations)

and constructively discharging her.

The District Court held that Petitioner is not disabled

and, based on similar reasoning, the Fourth Circuit affirmed.

Focusing primarily on the notes of doctors who were trying

to facilitate Petitioner’s return to her Area Supervisor job

(and who were not focusing on the mixed factual-legal

question of whether Petitioner’s impairment is substantially

limiting under the ADA), the Fourth Circuit concluded that

Petitioner’s back impairment does not substantially limit her

in any major life activity, and that Petitioner therefore has no

actual disability. App. 7a-10a. It further held that Respondent

did not regard Petitioner as disabled, stating that the

“evidence indicates that [Respondent] believed that

[Petitioner’s] work limitations were temporary and that she

would eventually, if not soon, return to her [Area Supervisor]

duties.” App. lla n. 5. In reaching that conclusion, the

Fourth Circuit disregarded the fact that Respondent refused

to return Petitioner to her Area Supervisor job even though

physicians and a vocational expert said she could do so with

accommodations, and that Respondent’s Operations

Manager stated, after witnessing the debilitating pain that

Petitioner experienced while trying to perform the

physically-demanding store-clerk job (which Respondent

forced Petitioner to perform as a condition of returning to the

Area Supervisor job), that “it appeared to” him that

Petitioner might not be able to increase her tolerance for

work and that he was “not optimistic” about Petitioner’s

anticipated improvement.

DBR GA ROY ETE OE SRG et

REASONS FOR GRANTING THE WRIT

I. THE RESULT REACHED BY THE FOURTH

CIRCUIT ON THE ISSUE OF WHETHER

PETITIONER’S IMPAIRMENT

SUBSTANTIALLY LIMITS HER IN ANY MAJOR

LIFE ACTIVITY, AND THE STANDARDS

WHICH THE FOURTH CIRCUIT USED TO

REACH THAT DECISION, CONFLICT WITH

THE DECISIONS AND STANDARDS

ENDORSED BY OTHER CIRCUITS AND THIS

COURT.

Other Circuits have held that the ADA’s definition of

disability covers impairments imposing limitations equally

or less severe than Petitioner’s limitations. In Cochrum_v.

Old Ben Coal Co., 102 F.3d 908 (7" Cir. 1996), the Seventh

Circuit held that a shoulder injury which permanently

precluded a coal miner from “overhead [and] heavy lifting”

and “pushing and pulling out from his body” could qualify as

a disability. Citing the back-injury example in 29 C.F.R. §

1630.2(j), the Court stated:

The physical restrictions © Cochrum’s

physician placed upon him — no overhead

work, heavy lifting, or pulling or pushing

out from his body — might apply to a broad

range of jobs, and are more than job

specific. As with the examples of the bad

back in the regulations, Cochrum’s shoulder

injury could disqualify him from any

position at the mine, or in related work such

as construction. In addition to listing a

number of jobs in the mine, the magistrate

eae

judge seems to have assumed as a matter of

law that plenty of places would employ

Cochrum with his shoulder condition. But

given the breadth of his physician’s physical

restrictions, a reasonable jury could

conclude that | Cochrum’s _ shoulder

impairment does substantially limit his

ability to work. 102 F.3d at 911.

In Burns v. Coca-Cola Enterprises, Inc., 222 F.3d 247

(6"" Cir. 2000), the Sixth Circuit held that a reasonable jury

could find that a back injury which precluded a product

deliveryman from lifting more than 23 pounds significantly

restricted him in the major life activity of working. It stated

that “[g]iven that the determination of whether a claimant is

disabled is made on an individual basis, and that the court

may consider the manner in which a claimant’s personal

education and prior work experience limits his ability to

pursue employment in other sectors of the economy, the

district court’s conclusion that Burns is disabled was

reasonable.” Id. at 254.

In Webner v. Titan Distribution, Inc., 267 F.3d 828

(8"" Cir. 2001), the Eighth Circuit held that a back injury

which precluded an assembly-line worker from lifting more

than 15 pounds regularly, 25 pounds occasionally, and 50

pounds at any time, and from twisting and bending more

than 12 times per hour, significantly restricted him in the

major life activity of working. It stated:

Webner testified at trial that his back injury

limited his ability to walk, to stand for long

periods of time, to twist, and to bend at the

waist without pain, which ultimately

affected his ability to work. The jury also

heard testimony from Dr. Nelson, stating

that Webner had an impairment rating of

18% of the body as a whole after his three

back surgeries, was only authorized to return

to work incrementally subject to bending

and lifting restrictions, and required physical

therapy. ;

Furthermore, an individual is substantially

limited in his ability to work under the ADA

if the impairment "significantly restricts" the

individual's "ability to perform either a class

of jobs or a broad range of jobs in various

classes as compared to the average person

having comparable training, skills and

abilities." 29 C.F.R. § 1630.2(j)(3)(i). At

trial, .a vocational expert testified on

Webner's behalf that because of Webner's

back injury, he was precluded from

performing work that fell in the heavy and

very heavy industrial classifications. These

two classifications required the ability to lift

in excess of Webner's lifting restriction of

50 pounds. While a lifting restriction

standing alone is insufficient to demonstrate

that Webner was substantially limited in the

life activity of working, the inability to lift

heavy objects can translate across a broad

spectrum of physically demanding jobs.

[Citation omitted.] Viewing all of the

evidence which shows how Webner's back

injury impacted him in his favor, we

conclude that a reasonable jury could have

determined that Webner's back injury had

substantially limited his ability to work, to

twist, to bend, and to stand, in addition to

limiting his ability to lift. (Id. at 834-35.)

In Mondzelewski v. Pathmark Stores, Inc., 162 F.3d

778 (3 Cir. 1998), the Third Circuit held that a back injury

which precluded a meat cutter from lifting objects weighing

more than 50 pounds and from carrying objects weighing

more than 25 pounds, together with his limited education,

training, and skills, substantially limited him in the major life

activity of working. It based its holding on a vocational

expert’s opinion that “the best that could be hoped for...

him, outside of his [job with the defendant], would be a

minimum wage type of position in an unskilled light or

medium duty capacity.” Id. at 785.

The Fourth Circuit’s conclusion that Petitioner

cannot prove that she is substantially limited in any major

life activity can’t be reconciled with Cochrum, Burns,

Webner, or Mondzelewski.

But perhaps more significantly, the analytical

framework employed by the Fourth Circuit clashes with the

process endorsed by this Court and other Circuits for

determining whether an individual has a disability.

The Fourth Circuit disregarded this Court’s

admonition in Toyota Motor Mfg. v. Williams, 534 U.S. 184

(2002), that the ADA “requires,” and thus certainly allows,

those "claiming the Act's protection . . . to prove a disability

by offering evidence that the extent of the limitation [caused

by their impairment] in terms of their own experience . . . is

substantial." Id. at 691-92 (quoting Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555, 567 (1999) (emphasis added)). It

is undisputed that Petitioner’s own experience was that her

back impairment and its limitations rendered her efforts to

perform the store-clerk job debilitatingly painful and futile —

to the point that Respondent's Operations Manager stated

that “it appeared to” him that Petitioner might not be able to

increase her tolerance for work and that he was “not

optimistic” about Petitioner’s recovery prospects. Ignoring

this evidence, the Fourth Circuit focused primarily on

doctors’ notes generated during Petitioner's efforts at

rehabililation. App. 7a-10a.

Moreover, the emphasis which the Fourth Circuit

placed on those notes conflicts with the Third Circuit’s

treatment of such notes. The Third Circuit has rejected the

notion that such notes should control the determination of

whether an individual has a substantially-limiting

impairment. In Taylor _v. Phoenixville Sch. Dist., 184 F.3d

296 (3 Cir. 1999), the Third Circuit stated:

Another reason that the school district

denies that Taylor is disabled is that before

the school district allowed Taylor to return

to her job, she was required to submit a note

from her doctor saying that she was able to

work. Dr. Sonnenberg responded to this

requirement by sending a one sentence

message saying that Taylor "is able to return

to work and is not disabled." ... The school

district argues that since the doctor said that

Taylor was "not disabled," Taylor must have

been symptom free.

But the doctor's remark appears to be simply

another way of saying that Taylor was

capable of working. It is hardly conclusive

proof that Taylor was not substantially

limited. Id. at 310-11.

Cf. Bennett v. Unysis Corp., 2000 U.S. Dist. LEXIS 18143,

at *28 (E.D. Pa. 2000)(applying Taylor and holding that a

doctor’s statement that the plaintiff's “condition has

improved and she is able to resume her former duties on

12/23/97” was “not sufficient evidence for us to conclude

that [plaintiff] required no accommodations”).

‘The Fourth Circuit also strayed from other Circuits’

holdings, and from this Court’s precedent, by holding (App.

lla) that Petitioner’s employment at a car dealership after

leaving Respondent employ “reinforces” the conclusion that

she is not substantially limited in working. In DePaoli v.

Abbott _Lab., 140 F.3d 668 (7" Cir. 1998), the Seventh

Circuit held that “an employer cannot avoid [ADA] liability

by showing that the employee is still generally capable of

doing some economically valuable work in the national

economy.” Id. at 672. In Webb v. Garelick Mfg. Co., 94 F.3d

484 (8" Cir. 1996), the Eighth Circuit rejected the notion that

“a plaintiff can never demonstrate disability as long as there

is any other job that she can perform.” Id. at 487. Cf.

Henderson v. Ardco, Inc., 247 F.3d 645, 652-53 (6" Cir.

2001)(holding that supervisor’s “acknowledgment that ‘right

now plaintiff's working at the Piggly-Wiggly, so obviously

she can do some things’ does not show that [the supervisor]

did not perceive [plaintiff's] capacity to work to be

substantially limited”). And, as the Sixth Circuit stated in

Burns, supra, 222 F.3d 247, 256 (6"" Cir. 2000), the converse

of this Court’s holding, in Sutton v. United Air Lines, Inc.,

eee

527 U.S. 471, 523 (1999), that “[t]o be substantially limited

in the major life activity of working ... one must be

precluded from more than one type of job, a specialized job,

or a particular job of choice,” is that an individual’s ability to

perform some work does not disqualify her from working-

disabled status under the ADA. 222 F.3d at 255.

The Fourth Circuit also deviated from other Circuits’

precedent by failing to factor Petitioner’s education, training,

knowledge, and skills into the calculus of whether she is

substantially limited in working. It completely ignored the

evidence relating to these factors, even though these factors

were addressed in the reports of Petitioner’s vocational

experts. By contrast, other Circuits have stressed the need for

consideration of these factors in the working-disabled

calculus. See Burns v. Coca Cola Enterprises, 222 F.3d 247,

254 (6"" Cir. 2000) (stating “that the determination of whether

a claimant is disabled is made on an individual basis, and

that the court may consider the manner in which a claimant’s

personal education and prior work experience limits his

ability to pursue employment in other sectors of the

economy”); Deppe v. United Airlines, 217 13 F.3d 1262,

1266 (9"" Cir. 2000)(“An assessment of one’s training,

knowledge, and skills is important in determining whether

the individual is disabled within the meaning of the ADA”).

Indeed, the Sixth Circuit in Burns, supra, expressly

recognized that the Fourth Circuit’s approach to the

working-disabled issue conflicts with the ADA and other

Circuits’ holdings. It noted that the Fourth Circuit in

Williams v. Channel Master Satellite Systems, Inc., 101 F.3d

346 (4"" Cir. 1996), held that “a twenty-five pound lifting

restriction could not, as a matter of law, substantially limit

the major life activity of working,” 222 F.3d at 255 n. 3, and

then criticizing that holding in the following passage:

[T]he Fourth Circuit's decision on this issue

conflicts with the ADA's directives that the

determination whether an_ impairment

substantially limits a major life activity must

be made on an individual basis, and that the

impaired individual's ability to work must be

compared not with "an average persons's

abilities," ibid., but with the abilities of a

person with "comparable training, skills and

abilities." 29 C.F.R. § 1630.2(j)(3)(i);

[citation omitted] DePaoli v. Abbott

Laboratories, 140 F.3d 668, 672 (7" Cir.

1998)(the determination whether an

individual is "disabled" under the ADA is

"an individualized one, and must be

determined on a case-by-case basis"). It is

obvious that a lifting restriction would

substantially limit a manual laborer's ability

to work to a far greater extent than it would

limit that of an accountant, lawyer, or

teacher. Id. at n.3.

II. THE FOURTH CIRCUIT’S STANDARDS FOR

DETERMINING WHETHER AN INDIVIDUAL IS

REGARDED AS DISABLED CONFLICT WITH

THE SIXTH’S CIRCUIT’S STANDARDS

The Fourth Circuit held (App. lla n. 5) that

Respondent did not regard Petitioner as disabled, even

though physicians and a vocational expert had opined that

she could perform the Area Supervisor position with

accommodations, even though Respondent refused to allow

Petitioner to return to her Area Supervisor job unless she

first proved her ability to work a more-physically-rigorous

job, and even though Respondent’s Operations Manager

stated, after witnessing Petitioner experience intense physical

pain that precluded her for performing that more-demanding

job, that “it appeared to” him that Petitioner might not be

able to increase her tolerance for work and that he was “not

optimistic” about Petitioner’s anticipated improvement.

In stark contrast, the Sixth Circuit, in Henderson v.

Ardco, Inc., 247 F.3d 645 (6" Cir. 2001), the Sixth Circuit

held that a reasonable jury could find that an employer

regarded as disabled a welder whose back injury precluded

him from stooping and lifting more than 25 pounds

frequently and 40 pounds infrequently. It stated:

We have also held that an individual may be

disabled by a lifting restriction of 23 pounds,

by being substantially impaired in the major

life activity of working, if that restriction

prevented him from performing "medium to

heavy lifting and other forms of manual

labor," and those jobs constituted the

majority of the jobs for which that plaintiff

is suited based on his age, education, and

experience. [Citation omitted.] Similarly,

Henderson appears to have raised a genuine

issue of material fact that Ardco perceived

her as unable to perform anything but "light

duty" work, and that it perceived that

medium to heavy manual labor constituted a

majority of the jobs available to her based

on her age, education and experience.

The interpretive guidance provided on

"substantial limitation" of working also

supports the view that this case is

inappropriate for summary disposition. As

an illustration, the EEOC indicates that "an

individual who has a back condition that

prevents the individual from performing any

heavy labor job would be substantially

limited in the major life activity of working

because the individual's impairment

eliminates .. . her ability to perform a class

of jobs. This would be so even if the

individual were able to perform jobs in

another class, e.g., the class of semi-skilled

jobs." 29 C.F.R. § 1630, App. at 353-54

(quoted in Burns, [supra], 222 F.3d at 254);

DePaoli v. Abbott Laboratories, 140 F.3d

668, 672 (7" Cir. 1998), 140 F.3d 668, 672

(7th Cir. 1998)(quoting same language). Id.

at 652.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully Submitted,

David W. Skeen

Wright, Constable & Skeen, L.L.P.

100 North Charles Street, 16" Floor

Baltimore, Maryland 21201

(410) 659-1305

APPENDIX

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Mary D. POoLLarp,

Plaintiff-Appellant,

v. No. 01-1342

HIGH’S OF BALTIMORE, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-99-3455-AMD)

Argued: October 29, 2001

Decided: February 25, 2002

Before WILKINSON, Chief Judge, GREGORY, Circuit Judge,

and Malcolm J. HOWARD, United States District Judge for the

Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Gregory and Judge Howard joined.

COUNSEL

ARGUED: Paul Francis Evelius, WRIGHT, CONSTABLE &

SKEEN, L.L.P., Baltimore, Maryland, for Appellant. Christopher

Mark Feldenzer, LAW OFFICES OF NORMAN R. BUCHSBAUM,

Baltimore, Maryland, for Appellee. ON BRIEF: Norman R. Buchs-

baum, LAW OFFICES OF NORMAN R. BUCHSBAUM, Baltimore,

Maryland, for Appellee.

2 POLLARD v. HIGH’S OF BALTIMORE, INC.

OPINION

WILKINSON, Chief Judge:

Plaintiff Mary Pollard claims that defendant High’s of Baltimore,

Inc. violated her rights under the Americans with Disabilities Act

("ADA") by failing to accommodate her disability and by construc-

tively discharging her. Pollard also claims that she was wrongfully

discharged under Maryland law. The district court granted summary

judgment to High’s. Because Pollard’s impairment during her recov-

ery from back surgery was a temporary one not covered by the ADA,

and because High’s did not wrongfully discharge her, we affirm the

judgment of the district court.

Plaintiff Mary Pollard was an Area Supervisor for defendant

High’s of Baltimore, Inc., which operates a chain of convenience

stores. Pollard began working for High’s in 1985 as a store clerk and

was eventually promoted to the Area Supervisor position. Area Super-

visors are responsible for monitoring ten to fifteen stores. This

requires spending considerable time driving from store to store within

an assigned area and occasionally filling in for clerks when clerks

and/or managers are unable to work. Area Supervisors must be on call

twenty-four hours a day in case of emergencies and typically work

more than forty hours per week.

In August 1997, Pollard injured her back while working as an Area

Supervisor. After a brief absence from work, she returned to her job

until December 1997. At that time, Pollard was informed by her per-

sonal physician, Dr. Brager, that she would need back surgery. She

had that surgery in January 1998 and also filed a claim with the Mary-

land Workers’ Compensation Commission. Because of complications

from the surgery, she was not cleared to return to work until April

1998.

In April 1998, Dr. Brager determined that Pollard could work with

the following restrictions: Pollard was limited to working eight hour

days, was prohibited from doing any repetitive bending or any lifting

PoLLARD v. HIGH’s OF BALTIMORE, INC. 3

of more than five pounds, and was prohibited from driving for

extended periods of time. When she informed High’s of these condi-

tions, High’s told Pollard that it did not have "light-duty" for supervi-

sors and that she could not yet return to work.

During her recovery and attempts to return to work, Pollard contin-

ued to deal with High’s workers’ compensation insurance carrier and

rehabilitation specialists retained by the insurer. From May until June

1998, Pollard participated in a "work-hardening" program with a

physical therapist and consulted with vocational therapists provided

by the insurer. In June 1998, Dr. Rosenthal, who monitored Pollard’s

progress for the insurer, concluded that Pollard could return to work

as an Area Supervisor with restrictions.

On August 25, 1998, Pollard contacted High’s directly and

informed her District Manager, Patricia Kelly, that she was ready to

return to work. Shortly thereafter, a vocational therapist called Pollard

to arrange a meeting between himself, Pollard, and Dr. Brager. Dur-

ing this meeting on September 4, 1998, Dr. Brager reduced the work

restrictions he had imposed on Pollard in = eapsemaaighg Pollard

was still prohibited from working more than‘eight hours a day and

from bending repetitively, but the restriction on lifting was changed

to no more than twenty-five pounds, and Pollard was now permitted

to drive for extended periods.

On September 18, Pollard, the vocational therapist, Kelly, and

High’s Operation Manager, Timothy Sheehan, met to discuss Pol-

lard’s return to work. Everyone at the meeting acknowledges that they

discussed the ways in which Dr. Brager’s restrictions on heavy lifting

and repetitive bending could be implemented. The parties agreed that

Pollard could use the assistance of her coworkers and subordinates to

handle the more physically demanding tasks she would be required to

perform. However, the parties dispute what plan of action regarding

Pollard’s return to work eventually resulted from this discussion.

Pollard contends that in light of Dr. Brager’s eight hour work

restriction, Sheehan insisted that High’s would not permit her to work

as a "part-time" Area Supervisor. Therefore, it was proposed that Pol-

lard begin working as a store clerk. Pollard claims she had no choice

but to work first as a store clerk because she was convinced it was

os Renata aia

4 POLLARD v. HIGH’s OF BALTIMORE, INC.

the only way she would be permitted to return to her position as an

Area Supervisor. High’s, however, contends that Pollard offered to °

work as a store clerk. According to High’s, this arrangement was

implemented to allow Pollard to regain her strength until she could

resume her duties as an Area Supervisor.

Regardless of whose suggestion it was, Pollard returned to work,

as a clerk, on September 23, 1998. She was paid $5.60 an hour, or

approximately $12,000 a year, while working as a clerk, compared to

the $40,000 a year she earned as an Area Supervisor. There is some

confusion about how the issue of Pollard’s pay was to be handled

since she was receiving workers’ compensation income. High’s con-

tends that it believed the insurer would continue to pay partial bene-

fits so that Pollard’s net income would not be reduced, but High’s

does not dispute that during the time Pollard worked as a clerk she

was not paid this difference. And while Pollard contends that High’s

should have known she was not being paid the difference, there is no

record that Pollard formally complained to “y High’s official about

her compensation.

Despite the modifications in the store clerk position to accommo-

date her restriction on heavy lifting and repetitive bending, Pollard

found the physical demands of working as a clerk unbearable. Pollard

experienced such pain that she rarely, if ever, completed any of the

eight hour shifts she had been assigned. Yet, on September 29, 1998,

when Dr. Brager lifted her eight hour work restriction, Pollard

reported this to Sheehan and expected to be returned to her Area

Supervisor position. Sheehan, however, insisted that Pollard had to

demonstrate that she could work an eight hour day as a store clerk

before she could return to her Area Supervisor position. Pollard con-

tinued to work as a clerk for approximately one more month before

quitting on October 29, 1998. When she quit, Pollard informed High’s

that she had obtained employment elsewhere. And Pollard did, in fact,

obtain immediate reemployment at a car dealership.

On November 12, 1999, Pollard brought this suit, alleging, inter

alia, that High’s violated her rights under the ADA by failing to

-accommodate her disability and constructively discharging her. Pol-

lard also brought an action under Maryland law claiming wrongful

termination. The district court granted summary judgment for High’s

POLLARD Vv. HIGH’S OF BALTIMORE, INC. 5

on November 21, 2000. The district court held that, as a matter of

law, Pollard was "not entitled to disability discrimination protection

because she cannot satisfy the ADA definition of a ‘qualified individ-

ual with a disability.’"" The court concluded that there was "no evi-

dence that the physical limitations arising from [Pollard’s] back injury

were severely limiting." The court also found that her immediate

reemployment elsewhere showed she was not "‘substantially limited’

in her ability to work" and that High’s did not regard Pollard as dis-

abled. Finally, the court determined that Pollard’s state law claim for

wrongful discharge also failed as a matter of law because she had "not

proffered evidence to create a factual issue as to whether her working

conditions were purposefully made so intolerable that she was forced

to quit." Pollard appeals.

II.

We begin by considering Pollard’s ADA claim. The ADA prohibits

discrimination by a covered entity, including a private employer such

as High’s, "against a qualified individual with a disability." See 42

U.S.C. §§ 12111(2), 12112(a). Therefore, in order to come within the

ADA’s protected class, a plaintiff must first show that she is disabled

within the meaning of the Act. The ADA defines a "disability" as:

"(A) a physical or mental impairment that substantially limits one or

more of the major life activities of such individual; (B) a record of

such an impairment; or (C) being regarded as having such an impair-

ment." 42 U.S.C. § 12102(2). Pollard’s principal assertion is that she

is substantially limited in, infer alia, the major life activity of working

under § 12102(2)(A). Pollard asserts, and High’s does not dispute,

that her back injury is a physical impairment and that working is a

major life activity.’ Therefore, whether Pollard is "disabled" turns on

whether her back injury is substantially limiting.

‘The Supreme Court has noted "the conceptual difficulties inherent in

the argument that working could be a major life activity," but declined

to "decide this difficult question." Toyota Motor Mfg., Ky., Inc. v. Wil-

liams, 122 S. Ct. 681, 692 (2002). This question is likewise not necessary

to the resolution of this case.

6 POLLARD v. HIGH’S OF BALTIMORE, INC.

In order to demonstrate that an impairment is substantially limiting,

an individual must show that she is significantly restricted in a major

life activity. See, e.g., Halperin v. Abacus Tech. Corp., 128 F.3d 191,

199 (4th Cir. 1997); 29 C.F.R. § 1630.2(j)(1). And in determining

whether an impairment is substantially limiting, courts may consider

the "nature and severity of the impairment," the "duration or expected

duration of the impairment," and the "permanent or long term impact"

of the impairment. 29 C.F.R. § 1630.2(j)(2).? These factors indicate

that a temporary impairment, such as recuperation from surgery, will

generally not qualify as a disability under the ADA. See, e.g., 29

C.F.R. § 1630.2(j), app. at 353. An impairment simply cannot be a

substantial limitation on a major life activity if it is expected to

improve in a relatively short period of time.

The Supreme Court’s unanimous opinion in Toyota Motor Mfg.,

Ky., Inc. v. Williams, 122 S. Ct. 681 (2002), supports this conclusion.

In Toyota, the Court stated that the ADA’s "substantially limits"

requirement indicates that an impairment must interfere with a major

life activity "‘considerabl[y]’ or ‘to a large degree.’" 122 S.Ct. at

691. And the Court stressed that an "impairment’s impact must also

be permanent or long-term." /d. The Court’s earlier opinion in Sutton

v. United Air Lines, Inc., 527 U.S. 471 (1999), further suggests that

temporary impairments will typically not allow an individual to claim

relief under the ADA. In Sutton, the Court held that corrective mea-

sures must be taken into account when evaluating an individual’s

impairment. 527 U.S. at 482, 488-89. If an individual’s ability to cor-

rect an impairment must be considered, it seems clear that the individ-

ual’s likelihood of recovery from a temporary impairment must also

be considered.

Prior precedent of this court likewise indicates that temporary

impairments usually do not fall within the ADA’s definition of "dis-

The persuasive authority of the Equal Employment Opportunity Com-

mission ("EEOC") regulations interpreting the ADA is unclear, and the

issue has explicitly been left open by the Supreme Court. See, e.g.,

Toyota, 122 S. Ct. at 689-90; Sutton v. United Air Lines, Inc., 527 U.S.

471, 480 (1999). However, because both parties accept the EEOC regula-

tions, and determining their validity is not necessary to decide this case,

we have no occasion to determine what level of deference they are due.

POLLARD Vv. HIGH’sS OF BALTIMORE, INC. 7

ability." In Halperin, we stressed that "it is evident that the term “dis-

ability’ does not include temporary medical conditions, even if those

conditions require extended leaves of absence from work." 128 F.3d

at 199 (internal citations omitted). And several of our sister circuits

have taken a similar approach with respect to temporary impairments

under the Act. See, e.g., Gutridge v. Clure, 153 F.3d 898, 901-02 (8th

Cir. 1998) (holding that plaintiff's inability to work while recovering

from wrist and elbow surgery did not qualify as a disability under the

ADA and noting that "ike ADA requires permanent or long-term

impairments"); Heintzelman v. Runyon, 120 F.3d 143, 144-45 (8th

Cir. 1997) (same with regard to a temporary back injury); Rogers v.

Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (Sth Cir. 1996) (same

with regard to recovery from ankle injury and surgery); McDonald v.

Pennsylvania, 62 F.3d 92, 95-96 (3d Cir. 1995) (same with regard to

recuperation from abdominal surgery); Evans v. City of Dallas, 861

F.2d 846, 852-53 (Sth Cir. 1988) (same under the Rehabilitation Act

of 1973 with respect to inability to work due to knee surgery).

However, while the presumption exists that temporary impairments

do not qualify as disabilities under the ADA, temporary conditions

still require a case-by-case evaluation under the Act. See, e.g., Toyota,

122 S. Ct. at 692; Sutton, 527 U.S. at 483; Ennis v. Nat'l Ass'n of Bus.

& Educ. Radio, Inc., 53 F.3d 55, 59-60 (4th Cir. 1995). Temporary

disabilities present a spectrum of cases and at some point the duration

of an impairment could be so long that it cannot properly be charac-

terized as temporary. We must therefore examine how severe Pol-

lard’s particular impairment was, how long her impairment was

expected to last, and how likely it was that her impairment would be

ameliorated over time.

The undisputed evidence in this case demonstrates that Pollard suf-

fered a back injury in August 1997, eventually had to undergo surgery

in January 1998, and, due to an infection, had to take a leave of

absence from work until September 1998. However, this nine-month

absence is insufficient to demonstrate that Pollard had a permanent or

long-term impairment that significantly restricted a major life activity.

First, nothing in the nature or severity of Pollard’s impairment indi-

cated that she had anything other than a temporary impairment.

8 POLLARD v. HIGH’S OF BALTIMORE, INC.

Recovering from surgery can frequently take several months. And this

is especially likely when there are complications, such as an infection.

But physical impairments while recuperating from surgery are not

evidence of a permanent disability. See, e.g., Gutridge, 153 F.3d at

901-02. Therefore, nothing in the nature of Pollard’s condition during

the time she worked for High’s suggested that she had a permanent

impairment or that she was not likely to make a full recovery.

Second, there is no evidence that Pollard’s impairment was

expected to be permanent or long-term during the relevant time period

in 1998. In fact, communications to High’s from Pollard and her per-

sonal physician, Dr. Brager, indicated that her condition was thought

to be only temporary and that Pollard would soon be able to resume

her full duties as an Area Supervisor. Doctors’ evaluations, which

indicate that an individual’s impairment is improving, are persuasive

evidence that the impairment is expected to be only temporary. See,

e.g., Mellon v. Fed. Express Corp., 239 F.3d 954, 956-57 (8th Cir.

2001); Heintzelman, 120 F.3d at 145.

Dr. Brager’s contemporaneous treatment notes and his orders based

on these notes explained that Pollard was expected to make a full

recovery. Brager’s notes documented Pollard’s improvement and pro-

gressively removed her work restrictions. For example, Dr. Brager’s

August 18, 1998 note stated that "overall [Pollard] is doing reason-

ably well." Brager went on to explain:

I feel that there is a good chance that after an initial "break

in" that she will be able to get back to the kind of work that

she had done in the past. However, it is not reasonable for

us to expect that she will be able to jump right back in to

fourteen hour days and lifting heavy items on a repetitive

basis. It is my recommendation that the patient go back to

work at no more than eight hours per day with no lifting

greater than 15 to 20 pounds and no repetitive bending.

Two weeks later, on September 4, 1998, Brager wrote another note,

indicating that Pollard was improving and removing some of his prior

restrictions on her activities. He wrote:

PIR cee A oe Nt bP

Patient is doing quite well with normal activities of daily

living. She is spending more time in and out of her car.

POLLARD Vv. HIGH’s OF BALTIMORE, INC. 9

Overall, I think there is no question that she is now ready

to go back to work at eight hours per day, and I think that

we can even increase her lifting limit to 25 pounds. I still do

not want her to do repetitive bending.

Brager also stated that he would see Pollard again in several weeks

to reevaluate her "for further return to normal duties at work."

On September 29, 1998, several days after Pollard’s return to work

as a store clerk, Brager wrote a third progress note again explaining

that Pollard continued to improve. Brager wrote that she had a "nor-

mal gait with good mobility throughout." And he removed Pollard’s

eight hour work restriction, stating, "I feel at this time [Pollard] is

ready to return to her regular work, unlimited hours, with the only

restriction being that she not lift more than 25 pounds or that she not

bend on a repetitive basis."

In addition to the information Brager provided to High’s, Dr.

Rosenthal, who monitored Pollard’s condition for the workers’ com-

pensation insurer, also reported Pollard’s progressive improvement

over time. Rosenthal rendered an early opinion in February 1998,

shortly after Pollard’s surgery, indicating that he had doubts about her

ability to return to work. However, Rosenthal modified his opinion as

he followed Pollard’s recovery. On June 26, 1998, after examining

Pollard, he stated that "Pollard is doing quite well." He explained: "I

believe that she can return to work as an area supervisor at the present

time; however, she will have some slight restrictions." Rosenthal con-

cluded by stating, "I believe that with time her symptoms will con-

tinue to improve and it is likely that in several months she may

improve enough to actually return to full duty at work." On July 22,

1998, after watching a videotape of Pollard doing various activities,

Rosenthal reaffirmed his conclusion that Pollard was improving.

Additionally, Pollard repeatedly communicated to High’s that she

was ready and able to return to full-time duty as an Area Supervisor.

And Pollard has admitted that, during her employment with High’s,

neither she nor any of her treating physicians or attorneys ever com-

municated to any High’s official that her physical impairment was

permanent. As the district court correctly noted, they could not have

FNaD eee eT SOUND ECO ED SOOO Ea

10a

10 POLLARD Vv. HIGH’s OF BALTIMORE, INC.

done so because there was no medical evidence at that time to support

a conclusion that Pollard’s condition was long-term or permanent.’

Pollard contends that nothing in her doctors’ reports specifically

stated that her impairment was temporary, and that Brager never lifted

all of her work restrictions, indicating that she had a permanent or

long-term impairment. We are unpersuaded. In the end, Pollard was

left with only the restrictions that she not lift more than twenty-five

pounds or bend repetitively. These mild limitations are not signifi-

cantly restricting. And we have consistently held that similar restric-

tions are not evidence of a permanent impairment that substantially

limits any major life activity under the ADA. See, e.g., Halperin, 128

F.3d at 200; Williams v. Channel Master Satellite Sys., Inc., 101 F.3d

346, 349 (4th Cir. 1996).

Pollard also seems to claim that because High’s observed that she

could not perform the modified duties of a store clerk for eight hours,

High’s should have recognized that she had a permanent impairment,

or at a minimum, an impairment of an indefinite duration. However,

in the same breath, Pollard argues that High’s should have allowed

her to return to her position as an Area Supervisor. This indicates that

she felt capable of performing an Area Supervisor’s duties, which

indisputably include filling in for store clerks. All tiat Pollard’s

inability to complete her shift as a store clerk indicated was that, con-

sistent with both the contemporaneous medical reports and Pollard’s

*However, on July 14, 2000, Dr. Brager changed his original opinion

and determined that Pollard was permanently disabled and had been

since January 1998. Contrary to Pollard’s assertion, Dr. Brager’s revised

opinion and the opinions of her hired vocational experts, based on that

2000 report, do not affect our analysis under the ADA because "the date

of an adverse employment decision is the relevant date for determining

whether a plaintiff is a ‘qualified individual with a disability.’"" EEOC v.

Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir. 2000); see also Grif-

Sith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir. 1998). And as

the district court noted, there does not appear to be any “authority in the

case law interpreting the ADA to allow a medical practitioner’s nunc pro

tunc opinion to contradict his own contemporaneous opinion concerning

a patient’s disability in order to shore up a discrimination claim."

POLLARD v. HiGH’s OF BALTIMORE, INC. 11

own statements, Pollard needed a longer break-in period. It did not

indicate that her impairment was permanent.‘

Furthermore, Pollard immediately took a job with a car dealership

when she left High’s. This reinforces our conclusion that Pollard was

not substantially limited in the major life activity of working. In order

to be substantially limited in the major life activity of working, “one

must be precluded from more than one type of job, a specialized job,

or a particular job of choice." Sutton, 527 U.S. at 491-92. An individ-

ual must demonstrate that she is unable to work in a broad range of

jobs. Id.; see also 29 C.F.R. § 1630.2(j)(3)(i). And obtaining a new

job is evidence that an impairment is not substantially limiting. See,

e.g., Halperin, 128 F.3d at 200; Heintzelman, 120 F.3d at 145. As the

district court noted, Pollard’s immediate reemployment elsewhere

belies the assertion that she was "disabled" within the ADA’s defini-

tion or that her impairment was anything other than temporary during

the time of her employment at High’s.

‘Pollard claims that she has produced evidence indicating that High’s

knew that she was permanently disabled in 1998. However, this evidence

consists solely of a single handwritten note by Pollard’s vocational thera-

pist regarding a conversation he had with Sheehan about Pollard’s per-

formance as a store clerk. In that conversation, Sheehan allegedly said

that he was “not optimistic" about Pollard’s improvement. This isolated

statement is insufficient to contradict the overwhelming evidence from

Pollard’s doctors and Pollard herself that her condition was improving

and was only temporary.

‘Pollard also claims that High’s regarded her as having an impairment

that substantially limited her in the major life activity of working. See 42

U.S.C. § 12102(2)(C). In order to demonstrate that High’s regarded her

as disabled, Pollard must show that High’s entertained a misperception

about her condition. She must show that High’s mistakenly believed her

to have either a substantially limiting impairment that she did not have,

or a substantially limiting impairment when, in fact, her impairment was

nonlimiting. Sutton, 527 U.S. at 489; see also Haulbrook v. Michelin N.

Am., Inc., 252 F.3d 696, 703 (4th Cir. 2001). Pollard has failed to present

evidence to indicate that High’s regarded her as disabled. High’s would

not allow Pollard to resume her Area Supervisor position until she dem-

onstrated that she could work eight hours or more. But, as previously dis-

cussed, this was not done based on a faulty perception that she would

never return to that position. As the district court noted, the evidence

indicates that High’s believed Pollard’s "work limitations were tempo-

rary and that she would eventually, if not soon, return to her former

duties."

12a

12 POLLARD Vv. HIGH'S OF BALTIMORE, INC.

Of course, an impairment that is not substantially limiting under

the ADA definition of "disability" can still be a source of understand-

able concern for the individual affected. We do not make light of Pol-

lard’s surgery or the period of recuperation that followed it. However,

applying the protections of the ADA to temporary impairments, such

as Pollard’s, would dramatically expand the scope of the Act. See,

e.g., Halperin, 128 F.3d at 200. Congressional findings, enacted as

part of the ADA, require the conclusion that Congress did not intend

for the Act’s protections to extend to individuals with temporary

impairments. Congress found that "some 43,000,000 Americans have

one or more physical or mental disabilities." 42 U.S.C. § 12101(a)(1).

If Congress had intended temporary disabilities to be covered by the

Act, this number undoubtedly would have been much higher. Cf

Toyota, 122 S.Ct. at 691 (drawing same conclusion with respect to

extending the ADA to individuals with impairments that preclude the

performance of "some isolated, unimportant, or particularly difficult

manual task"); Sutton, 527 U.S. at 484-87 (drawing same conclusion

with respect to extending the ADA to individuals with correctable

physical limitations). Federal courts are simply not in the position to

extend the ADA without a directive from Congress, and we decline

to do so in this case.

Ill.

We next turn to Pollard’s state law claim that she was wrongfully

terminated in retaliation for filing a workers’ compensation claim.‘

See Adler v. Am. Standard Corp., 432 A.2d 464, 473 (Md. 1981); Md.

Code Ann. Lab. & Empl. § 9-1105. In order to establish this claim,

Pollard must show that she was discharged in the first place. Ordinar-

ily, an employee who resigns would not have a right of action for abu-

sive discharge. Beye v. Bureau of Nat'l Affairs, 477 A.2d 1197, 1201

(Md. Ct. Spec. App. 1984). However, it is sometimes necessary "to

discard form for substance" and the law therefore recognizes the con-

cept of "constructive discharge." Jd. Under Maryland law, the stan-

dard for measuring whether a resignation is actually a constructive

discharge is "whether the employer has deliberately caused or allowed

*Pollard also makes a claim for constructive discharge under the ADA,

but because we determined that Pollard was not disabled within the

meaning of the Act, we need not review this claim.

13a

POLLARD Vv. HIGH’S OF BALTIMORE, INC. 13

the employee’s working conditions to become so intolerable that a

reasonable person in the employee’s place would have felt compelled

to resign." /d. at 1203. By using strong words such as "deliberately,"

"intolerable," and "compelled," Maryland courts, like those in most

states, have set a high standard for constructive discharge claims.

Pollard cannot meet this high threshold. And High’s simply cannot

be said to have rendered Pollard’s working conditions intolerable.

High’s honored Pollard’s request to return to work. And it was hardly

remiss of an employer to ease an employee’s return to the workplace

after that employee had undergone back surgery. It is undisputed that

the Area Supervisor position Pollard wanted involved long hours,

often in excess of forty hours per week, extensive driving between

stores, and supervisory pressure in addition to physical labor and

occasionally filling in as a clerk. Pollard admits that she rarely, if

ever, was able to work more than five or six hours in a modified store

clerk position, so High’s was justified in its conclusion that she was

not yet ready to return to her Area Supervisor position and that she

needed a longer break-in period. If providing such a temporary break-

in period were impermissible, the law would be creating perverse

incentives for employers to force recuperating employees into posi-

tions prematurely, leading potentially to additional liability for the

employer and, most unfortunately, to considerable pain and relapses

for the employee.

Moreover, the conditions under which Pollard returned were hardly

intolerable. To the contrary, as the district court noted:

[Pollard] acknowledges that each time she informed Shee-

han of her need to depart early for the day because of dis-

comfort caused by her back, he never imposed upon her any

condition that she remain at work or suffer adverse conse-

quences. She does not assert she was denied the assistance

of her co-workers to implement the lifting and bending

restrictions imposed by Dr. Brager.

Pollard’s reduction in salary when she returned to work as a store

clerk does not reveal a deliberate attempt by High’s to make Pollard’s

working conditions intolerable. While there is some dispute about

how her pay was going to be handled during this interim period, there

Disks il AON eine th

14 POLLARD v. HIGH’S OF BALTIMORE, INC.

is no dispute that High’s believed its workers’ compensation insur-

ance carrier was going to pay Pollard the difference between her store

clerk and Area Supervisor salaries. And although Pollard alleges that

High’s should have known that there were problems relating to her

pay, there is no record that Pollard made a formal complaint about not

receiving the workers’ compensation benefits. Instead, Pollard quit

and took a position with a car dealership.

In allowing Pollard to return to work initially as a clerk for a lim-

ited period each day, High’s actions paralleled, in substance, the rec-

ommendations of Pollard’s doctors that she return to work with

restrictions that would be modified over time. The law does not

require a company to insist that an employee perform immediately at

pre-surgery levels. The hazards of such a course are obvious, and

High’s acted responsibly in not subjecting Pollard to them.’

IV.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

"Even if Pollard could proffer enough evidence to show a constructive

discharge, she fails to show a causal nexus between her alleged construc-

tive discharge and the filing of her workers’ compensation claim as

required by Adler. Pollard claims that Sheehan twice made negative

comments about the fact that she had hired a disability lawyer and that

these comments are enough to evidence retaliatory animus. However,

Sheehan’s two brief, off-hand comments about Pollard’s particular attor-

ney made seven months apart do not evidence retaliatory animus for fil-

ing a workers’ compensation claim.

15a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARY D. POLLARD, °

Plaintiff, * Civil Action No.:

AMD 99 CV 3455

HIGH’S OF BALTIMORE, INC.,

Defendant.

+ * - © * a + om ; a

MEMORANDUM

Plaintiff, Mary Pollard, has brought this action

against her former employer, High’s of Baltimore, Inc.,

under the American with Disabilities Act, 42 U.S.C. § 12101

et seq., alleging that High’s discriminated against her by

failing to accommodate a disability, demoting her and

constructively discharging her. Pollard also alleges a

wrongful discharge claim under state law.' Now pending in

High’s motion for summary judgment. The issues have been

fully briefed and no hearing is necessary. For the reasons set

forth below, I shall grant High’s motion for summary

judgment.

' Pollard relies on the supplemental jurisdiction statute, 28

U.S.C. § 1367(a), in respect to her state law claim, but it

appears that jurisdiction may exist on the basis of diversity

of citizenship.

l6a

Pursuant to Fed. R. Civ. P. 56(c) summary judgment

is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). A fact is material for

purposes of summary judgment, if when applied to the

substantive law, it affects the outcome of the litigation. Jd. at

248. Summary judgment is also appropriate when a party

“fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

A party opposing a properly supported motion for

summary judgment bears the burden of establishing the

existence of a genuine issue of material fact. Anderson, 477

U.S. at 248-49. “When a motion for summary judgment is

made and supported as provided in [Rule 56] must set forth

specific facts showing that there is a genuine issue for trial.”

Fed. R. Civ. P. 56(e). See Celotex Corp., 477 U.S. at 324;

Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d

1009, 1012 (4 Cir. 1991). Of course, the facts, as well as

the justifiable inferences to be drawn therefrom, must be

viewed in the light most favorable to nonmoving party. See

Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S.

574, 587-88 (1986). The court, however, has an affirmative

obligation to prevent factually unsupported claims and

defenses from proceeding to trial. See Felty v. Graves-

Humphreys Co., 818 F.2d 1126, 1128 (4" Cir. 1987).

Viewing the evidence in the light most favorable to

Pollard, the material facts are as follows. High’s operates a

17a

chain of approximately 100 convenience stores. The chain is

managed by the Operations Manager, Timothy Sheehan.

The chain is divided into two districts of approximately fifty

stores, each managed by a District Manager who supervises

the work of several Area Supervisors. Each Area Supervisor

is responsible for ten to 15 stores. Each store is staffed by a

Store Manager or Assistant Manager and a Store Clerk.

The responsibilities of an Area Supervisor are varied.

Generally speaking, an Area Supervisor monitors and

assures the compliance of the stores within her area of

responsibility with all aspects of store operation. This

requires considerable amounts of time driving between the

stores in the assigned area. Though the parties dispute the

frequency with which an Area Supervisor is called upon to

do so, they agree that that an Area Supervisor is required

- from time to time to work the shifts of Store Clerks and/or

Managers who are unable to work. Accordingly, an Area

supervisor must be able to perform the duties (including the

physical tasks) of Sales Clerks, Assistant Managers and

Managers, but again, the quantum and frequency of physical

exertion required of an Area Supervisor are hotly disputed by

the parties. The parties agree that an Area Supervisor is

required to be on call 24 hours a day in case of emergencies

or alarm calls. The parties also agree that an Area

Supervisor typically works an average of greater than 40

hours per week, and often as many as 60 hours per week.

Upon her graduation from high school in 1985,

Pollard began working for High’s as a Store Clerk. She was

eventually promoted to an Area Supervisor under District

Manager Patricia Kelley’s direct supervision. Pollard was on

duty as an Area Supervisor when she injured her back in late

August 1997. She stopped working for approximately two

18a

weeks, returned to work and continued to work (in

considerable pain) until early December 1997. After

consulting with her personal physician, Dr. Myles Brager,

Pollard informed Sheehan and Kelley that she was scheduled

to undergo surgery to correct the painful disc problem in her

back.

Pollard underwent surgery in January 1998. In the

same month she filed a claim with the Maryland Workers’

Compensation Commission with the assistance of retained

counsel. Pollard’s recovery from back surgery was

substantially slowed by complications caused by a serious

infection to the wound.

In April 1998, Poliard was cleared to return to work

by Dr. Brager with the following conditions: that she be

limited to eight hour work days; that she be prohibited from

doing any repetitive lifting or any lifting of more than five

pounds; and that she be prohibited from driving from

extended periods of time. After receiving notice of these

conditions, High’s told Pollard that it did not have “light-

duty” for supervisors and that Pollard could not yet return to

work.”

Throughout May 1998 and June 1998, Pollard

participated in a “work-hardening” program with a physical

? During her period of convalescence and in connection with

her attempts to return to work. Pollard was dealing with

High’s_ workers’ compensation insurance carrier and

rehabilitation specialists retained by that insurer. Except as

to Pollard’s allegations regarding the carrier’s reduction in

her benefits checks once she returned to work, see infra note

5, High’s has not challenged Pollard’s attribution to it of the

actions of the insurance carrier or its subcontractors.

19a

therapist and she also consulted with vocational therapists.

The workers’ compensation insurer provided all of these

services. In June 1998, Dr. Mark Rosenthal, who monitored

Pollard’s progress for the workers’ compensation insurer

concluded that Pollard could return to work as an Area

Supervisor with restrictions. He informed Pollard that

High’s should be contacting her to make arrangements, but

after several weeks High’s had not contacted Pollard?

Pollard finally contacted High’s directly on August

25, 1998. In her conversation with Kelly, her District

Manager, Pollard made it clear that she was ready to return

to work. Kelly responded that she would look into the

matter and would get back to Pollard. Soon thereafter, a

vocational therapist contacted Pollard and arranged a

meeting between himself, Pollard and Pollard’s treating

physician, Dr. Brager. At that meeting, which occurred on

September 4, 1998, Dr. Brager adjusted slightly the

conditions he had established in April for Pollard’s return to

> Pollard grew frustrated with the lack of contact from

High’s. She interprets High’s inaction during July and

August 1998, together with certain statements by the

vocational therapist indicating that he was looking for a new

job for her, certain statements by Sheehan expressing

surprise that she had retained counsel to represent her in

connection with her workers’ compensation claim and

High’s insistence that she perform adequately as a Store

Clerk for full eight hour shifts as a condition of her

resumption of supervisor duties, as probative of High’s intent

to discriminate against her. I need not determine whether the

inference of intentional discrimination proposed by Pollard

on the basis of these facts would be sufficient to support a

prima facie case inasmuch as I have concluded, as discussed

in the text, that at the time of these events Pollard was not

entitled to protection under the ADA.

20a

work: Pollard was still prohibited from working more than

eight hours a day and she was still prohibited from repetitive

lifting, but the restriction on lifting was changed from no

more than five pounds to no more than 25 pounds.

Apparently, Dr. Brager also authorized Pollard to drive for

extended periods of time.

On September 18, 1998, Pollard, the therapist, Kelly

and Sheehan met to discuss Pollard’s return to work as

authorized by Dr. Brager. All present appear to

acknowledge that they discussed the possible means of

implementing Dr. Brager’s restrictions against heavy lifting

and repetitive bending. It was agreed that Pollard could use

the assistance of her coworkers and/or subordinates to handle

the more physically demanding tasks she would be required

to perform. |

The present dispute can be traced most directly to the

parties’ divergent versions of the plan of action which

resulted from the meeting of September 18, 1998. High’s

contends that at this meeting Pollard offered and Sheehan

agreed to implement Dr. Brager’s restrictions by permitting

Pollard to recommence work as a Store Clerk in High’s

Hereford, Maryland store. Specifically, High’s contends the

parties agreed that this arrangement would allow Pollard to

regain her strength (while performing the duties of a Store

Clerk) until she could resume her position (performing all

relevant duties) as an Area Supervisor.

Pollard has a different recollection of the meeting.

She asserts that in light of Dr. Brager’s eight hour restriction,

Sheehan was insistent that High’s would not permit her to

work “part-time” as an Area Supervisor. Accordingly,

Pollard contends, it was Sheehan who proposed that Pollard

2la

begin working as a Store Clerk to permit her to build up her

strength instead of allowing her to resume immediately her

duties as an Area Supervisor notwithstanding her eight hour

restriction.’ Pollard contends, finally, that she had no choice

but to accede to Sheehan’s proposal that she resume work as

a Store Clerk, as she had become convinced during the

meeting that compliance with Sheehan’s proposals was the

only way she would be permitted to return to her position as

an Area Supervisor (if indeed she had any chance of

returning to that position).

Pollard returned to work on September 23, 1998, as a

Store Clerk. She was paid $5.60 per hour, or approximately

- $12,000 per year, rather than the approximately $40,000 per

year she had previously earned as an Area Supervisor.>

* Sheehan, apparently believing that Pollard was still under

Dr. Brager’s restrictions to refrain from driving for extended

periods of time, also proposed that Pollard work in High’s

Hereford, Maryland store, which was the closest High’s store

to Pollard’s Hanover, Pennsylvania home. Pollard contends

that she never told Sheehan that she was still prohibited from

driving for long periods of time or that driving caused her

discomfort. She does not indicate that she corrected

Sheehan’s apparent misapprehension.

> The parties vigorously dispute the issue of how Pollard’s

pay was to be handled in view of the workers’ compensation

income she was receiving; High’s contends that it believed

that the workers’ compensation insurer would continue to

pay partial benefits so that her net income would not be

reduced when she returned to work. Indisputably, neither

High’s nor its insurer paid the difference between Pollard’s

earnings as a clerk and her customary earnings as an Area

Supervisor during the few weeks she worked at reduced pay.

22a

Pollard’s theory of the case is that she was effectively

“demoted” and that the circumstances of the “demotion” rise

to the level of a constructive discharge, apparently under

both the ADA and state law.

In any event, it is undisputed in the summary

judgment record that despite the prohibitions against heavy

lifting or repetitive bending, the physical demands of

working as a Store Clerk caused Pollard such pain that she

rarely if ever completed any of the eight hour shifts to which

she was assigned. Pollard seeks to bolster her claim of

According to Sheehan’s uncontroverted deposition

testimony, he spoke to the workers’ compensation insurer

and “they said to me that they were going to not pay her for

the amount of hours that she worked times her hourly rate.”

In other words, apparently, he believed the salary Pollard

earned as a Store Clerk would be deducted from her weekly

workers’ compensation benefit. In this way she would

experience no reduction in her net workers compensation

income during her “break-in period” after her surgery.

Apparently, two weeks after Pollard commenced working as

a Store Clerk, Sheehan learned additional information that

may have caused him to doubt his assumptions.

Pollard never complained to Sheehan about her

compensation as a Store Clerk or about the reduction in her

workers’ compensation check. She does not allege that she

complained to any High’s official about compensation.

Moreover, on October 22, 1998, Pollard’s workers’

compensation attorney raised several issues with High’s

attorney about Pollard’s work conditions, but her

compensation was not one of the problems mentioned. In

any event, Pollard quit (barely six weeks after returning to

work) before the issue of her compensation was properly

raised and any efforts to resolve that issue had been

undertaken.

23a

discrimination by arguing that Sheehan purposefully insisted

that she work as a clerk (and complete the tasks requiring

constant standing and occasional bending those duties

entailed) even though, she contends, she could have

performed all of the (less physically demanding) duties of an

Area Supervisor by working a seven-day-per-week, eight-

hour-per-day schedule.

Approximately a week after Pollard returned to work,

on September 29, 1998, Dr. Brager lifted the eight hour

restriction. Pollard reported this information to Sheehan,

expecting he would permit her to return to her position as an

Area Supervisor. To Pollard’s surprise, however, Sheehan

demurred, insisting that Pollard must demonstrate her ability

to work an eight hour day as a Store Clerk before she could

return to her position as an Area Supervisor.

All told, Pollard worked as a Store Clerk for

approximately six weeks. She stopped working for High’s

on October 29, 1998. She informed her Store Manager that

she had obtained employment elsewhere and quit. Pollard’s

mother, a Store Manager at another High’s store, told High’s

that Pollard had taken a job with a car dealership in Hanover,

Pennsylvania.

III

Even accepting Pollard’s factual contentions as true,

as a matter of law, she is not entitled to disability

discrimination protection because she cannot satisfy the

ADA definition of a “qualified individual with a disability.”

Under the ADA, a qualified individual with a disability is

“an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

24a

holds or desires.” 42 U.S.C. §12111(8). “Disability” is

defined as “(1) A physical or mental impairment that

substantially limits one or more of the major life

activities...(2) A record of such an impairment; or (3) being

regarded as having such an impairment.”

1630.2(g).

29 CFR. §

“Working” is a “major life activity” 29 C.F.R. §

1630.2(i). The ADA regulations define “substantial limits”

(i) Unable to perform a major

life activity that the average

person in the _ general

population can perform; or (ii)

Significantly restricted as to

the condition, manner or

duration under which an

individual can perform a

particular major life activity as

compared to the condition,

manner, or duration under

which the average person in

the general population can

perform that same major life

activity.

29 C.F.R. § 1630.2(j)(1). Three factors must be considered

in determining whether an individual is substantially limited

in a major life activity:

The nature and severity of the impairment;

25a

(ii) | The duration or expected duration of the

impairment; and

(iii) | The permanent or long term impact, or the

expected permanent or long term impact of or

resulting from the impairment.

29 C.F.R. § 1630.2(j)(2).

Generally, a temporary impairment, such as a broken

limb or a period of months recuperating from surgery, does

not qualify as a disability. See, e.g., Gutridge v. Clure, 153

F.3d 898, 901-902 (8 Cir. 1998) (plaintiff with carpal

tunnel syndrome necessitating five separate surgeries and

recuperation periods when unable to work not disabled),

cert. denied sub nom. Gutridge v. Midland Computer, Inc.,

526 U.S. 1113 (1999); Heintzelman v. Runyon, 120 F.3d 143,

145 (8 Cir. 1997) (back injury which temporarily kept

plaintiff out of work, but from which her doctor expected

near full recovery, did not qualify as disability); Rogers v.

Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5" Cir. 1996)

(temporary disability recovering from ankle injury and

surgery not a “disability? under ADA); McDonald vy.

Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 96 (3"

Cir. 1995) (plaintiff's inability to work for two months while

recuperating from abdominal surgery did not make her

disabled); Evans v. City of Dallas, 861 F.2d 846, 852 (5"

Cir. 1988) (inability to work due to knee surgery did not

qualify as handicap under Rehabilitation Act of 1973).

Application of the rule of these cases and a

dispassionate assessment of the “nature and severity” of her

impairment, the “duration or expected duration of the

impairment” and the “expected ... long term impact of” her

——_

26a

impairment, compel the conclusion that Pollard was not

“disabled” under the ADA. The undisputed record here

shows that during Pollard’s employment with High’s she

suffered a serious back injury which, together with a serious

infection following surgery, required her to remain out of

work for at least six months. However, there is no evidence

that the physical limitations arising from her back injury

were severely limiting or that at the relevant time they were

understood to be or expected to be permanent. To the

contrary, the communications to High’s from Pollard and her

treating physician indicated that her disability was temporary

and that she would be able to resume her full duties as Area

Supervisor in the not distant future. For example, Dr.

Brager’s August 18, 1998 notes explain:

I feel that there is a good

chance that after an_ initial

“break in” that she will be able

to get back to the kind of work

that she had done in the past.

However, it is not reasonable

for us to expect that she will be

able to jump right back in to

fourteen hour days and lifting

heavy items on a repetitive

basis. It is my

recommendation that the

patient go back to work at no

more than eight hours per day

with no lifting greater than 15

to 20 pounds and no repetitive

bending.

27a

High’s Reply, Ex. 3 (Myles D. Brager, M.D. Progress Note,

August 18, 1998). Two weeks later Dr. Brager wrote:

Patient is doing quite well with

normal activities of daily

living. She is spending more

time in and out of her car.

Overall, I think there is no

question that she is now ready

to go back to work eight hours

per-day, and I think we can

even increase her lifting limit

to 25 pounds. I still do not

want her to do repetitive

bending. We will do this for

several weeks. I will see her in

one month and re-evaluate her

at that time for future return to

normal duties at work.

High’s Reply, Ex. 4 (Myles D. Brager, M.D. Progress Note,

September 4, 1998). On September 23, 1998, Pollard went

back to work as a Store Clerk in the High’s store in

Hereford, Maryland. On September 29, 1998, Dr. Brager

wrote that Pollard’s physical examination continued to

improve and that she “reveal[ed] normal gait with good

mobility throughout.” He removed the eight hour work

restriction and allowed her to work “unlimited hours.” He

maintained the 15 pound lifting restriction and the

prohibition on repetitive bending. High’s Reply, Ex. 5

(Myles D. Brager, M.D. Progress Note, September 29,

1998).

28a

While there is evidence that the medical practitioner

retained by the workers’ compensation insurance carrier

rendered an early opinion which refutes that of Dr. Brager, it

is arguably itself internally contradictory® and that physician

clearly modifies his opinion as he follows Pollard’s recovery

from surgery. In June 1998, for example, after he examined

Pollard, he concluded:

I believe that she can return to

work as an area supervisor at

the present time; however, she

will have some _ slight

restrictions [as detailed in Dr.

Brager’s note]....I believe that

with time her symptoms will

continue to improve and it is

likely that in several months

she may improve enough to

actually return to full duty

work.

Pollard Resp., Ex. 4 (Dr. Mark Rosenthal, Orthopaedic Note,

June 26, 1998). In July 1998, after viewing a videotape of

Pollard doing various activities, Dr. Rosenthal reaffirmed his

June conclusions. Thus, by the time Pollard returned to

work in September 1998, Dr. Rosenthal was expressing the

opinion that Pollard’s physical condition would soon

improve to the degree that she could return to full duty work

without restrictions. Indeed, Pollard effectively admitted

that during her employment with High’s she never

communicated to High’s that her injury or impairment was

® See Pollard Resp. Ex. 4 (Dr. Mark Rosenthal, Orthopaedic

Note, February 9, 1998).

29a

permanent. High’s Reply p.3 n.3 (citing Defendant’s

Request to Admission No. 5).

To overcome this evidence of the then transitory

(even if serious) nature of her impairment, Pollard seeks to

rely upon a July 14, 2000, opinion of Dr. Brager that she is

“permanently disabled and had been since at least January

1998.”’ As indicated above, however, this “retrospective”

opinion is_ contradicted by Dr. Brager’s own

contemporaneous notes concerning Pollard’s then current

and expected future capabilities at the time she was working

at High’s. Moreover, the record shows that she left her job

with High’s to work at a car dealership on or about October

29, 1998. Thus, during the relevant time period while she

was employed by High’s, as far as anyone knew or expected,

she suffered from only a temporary impairment requiring

mild limitations on her work activities and thus, she did not

qualify as disabled under the ADA.®

’ Dr. Brager’s July 2000 opinion was: “[P]laintiff is on a

permanent basis, significantly restricted, as compared to the

average person in each of the activities of standing, lifting,

bending, stooping, squatting, kneeling and remaining in one

position; that, on a permanent basis, plaintiff should engage

in no prolonged standing or sitting, no lifting of more than

20 pounds on an occasional basis, no repetitive bending,

stooping, squatting, or kneeling; and that further surgery will

not benefit plaintiff.” I am aware of no authority in the case

law interpreting the ADA to allow a medical practitioner’s

nunc pro tunc opinion to. contradict his own

contemporaneous opinion concerning a patient’s disability in

order to shore up a discrimination claim.

* it is clear, as well, that Pollard did not have “a record of

such an impairment,” 29 C.F.R. § 1630.2(g)(2), since the

medical records quoted above indicate that her physical

30a

Even if I were to disregard this record, however, and

conclude that Pollard had generated a dispute of material fact

as to whether the “nature and severity,” the “duration or

expected duration,” and the “expected ... long term impact

of her impairment entitled Pollard to ADA protection as of

fall 1998, she would still not qualify as disabled under the

ADA because her immediate reemployment elsewhere

shows she was not “substantially limited” in her ability to

work. The ADA regulations provide:

impairment was expected to be temporary and that her

physician was permitting increasingly more strenuous

activity. A contrary interpretation would permit any person

who undergoes surgery to claim the protection of the ADA.

Likewise, there is no evidence to create a factual dispute that

High’s “regarded [Pollard] as having such an impairment.”

| 29 C.F.R. § 1630.2(g)(3). High’s was not willing to let

Pollard resume her Area Supervisor position until she had

demonstrated that she could work eight hours or more, but

there is no evidence to indicate that High’s management did

not believe that her work limitations were temporary and that

she would eventually, if not soon, return to her former duties.

Pollard’s unhappiness with the pace of her return to full

duties as an Area Supervisor is not probative of her ADA

claim on the theory that she was “regarded as” disabled

under ADA. In this regard, the parties’ dispute over whether

the Store Clerk position or the Area Supervisor position was

the more physically demanding is not material to the issue of

whether Pollard was “disabled” within the contemplation of

the ADA in fall 1998. Federal anti-discrimination statutes

simply do not impose a requirement on employers that they

act wisely or even rationally, but only that they not act

discriminatorily. Ct. Harvey v. Anheuser Busch, Inc., 38

F.3d 968, 973 (8"" Cir. 1994) (‘Federal courts do not sit as a

super-personnel department that reexamines an entity’s

business decisions”).

3la

The term substantially limits

means significantly restricted

in the ability to perform either

a Class of jobs or a broad range

of jobs in various classes as

compared to the average

person having comparable

training, skills and abilities.

The inability to perform a

single, particular job does not

constitute a substantial

limitation in the major life

activity of working.

29 C.F.R. § 1630.2(j)(3)(1). The regulations also allow

consideration of the following factors_in determining

whether an individual is substantially limited in the major

life activity of “working”:

(A) The geographical area to which the individual

has reasonable access;

(B) The job from which the individual has been

disqualified because of an impairment, and

the number and types of jobs utilizing similar

training, knowledge, skills or abilities, within

that geographical area, from which the

individual is also disqualified because of the

- impairment...

disqualified because of an impairment, and

the number and types of other jobs not

utilizing similar training, knowledge, skills or

32a

abilities, within that geographical area, from

which the individual is also disqualified

because of the impairment....

29 C.E.R. § 1630.2(j)(3)(ii).

These indicia fatally undermine Pollard’s claim that

she was “substantially limited.” The fact that Pollard left her

job at High’s and immediately began to work at a car

dealership in Hanover, Pennsylvania belies the assertion that

she was “disabled” as defined by the ADA during the time of

her employment with High’s. The uncontested fact indicates

that Pollard had access to a geographical area which included

Hanover (indeed she lived there), and that there were jobs

there that she was qualified for and physically able to

perform.”

® While Pollard was working at High’s during the period

following her surgery, she was unable to work long hours,

and usually could not even complete a full eight hour shift,

even after her doctor had removed any limitation on the

number of hours she could work. Pollard argues that prior to

her injury she was able to minimize the occasions on which

she was required to cover for absentee Store Clerks or Store

Managers under her supervision through the development of

good relationships with her subordinates and __ proper

planning. She does not contend however, that she thus

eliminated the requirement. Moreover, while her method

may have mitigated her need to work as a Store Clerk or

Manager in the past, it does not in any way serve to remove

from the Area Supervisor job qualification that she be able

to, if necessary, work as a Store Clerk or Manager when no

replacement is available. Given that Pollard was out of work

for nine months, and given the high turnover of High’s

employees, it is likely that Pollard would require some time

to once again establish the requisite relationships with new

33a

Thus, even though it was not required to do so under

the ADA, the record shows that High’s was willing to

“accommodate” Pollard during her period of impairment by

allowing her to work as a Store Clerk with reduced duties

(no heavy lifting or repetitive bending) and flexible hours.

Pollard does not deny that she did not communicate her

dissatisfaction with the accommodations to High’s

officials.'° Moreover, she clearly did not allow herself

sufficient time in the Store Clerk position to work her way

back to an Area supervisor position; that is, she failed

repeatedly to complete a full eight hour shift. Instead, after

six weeks as a Store Clerk, she unilaterally terminated her

employment with High’s and went to work elsewhere.

For the reasons, I conclude as a matter of law that

during the fall of 1998 Pollard was not a “qualified

individual with a disability” under 42 U.S.C. § 12111(8).

Accordingly, she was not entitled to ADA protection during

her employment with High’s and I shall grant summary

judgment to High’s on the ADA claim.

Pollard’s state law claim likewise fails as a matter of

law. Pollard alleges that she was discharged in retaliation for

filing a workers’ compensation claim. Such a discharge

employees to reduce her need to cover for them as required

by the job description.

0 The one exception is that Pollard raised some of the issues

she has raised in this lawsuit via a letter from her attorney to

High’s attorney on October 22, 1998. However, she quit on

October 29, 1998, and therefore never determined what

efforts High’s might make to redress her concerns.

34a

would violate a clear mandate of public policy, Md. Code

Ann. Lab. & Empl. § 9-1105, and would constitute an

abusive discharge under Maryland law. Ewing v. Koppers

Co., 312 Md. 45, 49, 537 A.2d 1173, 1175 (1988).

However, Pollard has not proffered evidence generating a

factual issue that she was discharged. Rather, by her own

admission, she quit. Even if Maryland recognized cause of

action for constructive abusive discharge,'! and Pollard cites

1! Under some federal nondiscrimination statutes, a

constructive discharge occurs “when an employer creates

intolerable working conditions in a deliberate effort to force

the employee to resign.” Carter v. Ball, 33 F.3d 450, 459

(4" Cir. 1994); Johnson v. Shalala, 991 F.2d 126, 131 (4"

Cir. 1993) (citing Bristow v. Daily Press, Inc., 770 F.2d

1251, 1255 (4" Cir. 1985)), cert. denied, 513 U.S. 806

(1994). “A plaintiff alleging constructive discharge must ...+

prove two elements: deliberateness of the employer’s action,

and intolerability of the working conditions.” Bristow, 770

F.2d at 1255 (emphasis added), cert. denied 475 U.S. 1082

(1986); see also Martin v. Cavalier Hotel Corp., 48 F.3d

1343, 1354 (4™ Cir. 1995); Johnson, 991 F.2d at 131. The

determination of whether the employee’s working conditions

are intolerable is based on the objective standard of whether

a reasonable person in the employee’s position would have

felt compelled to resign. See Munday v. Waste Management

of N. Am. Inc., 126 F.3d 239, 244 (4" Cir. 1997), cert.

denied, 522 U.S. 1116 (1998); Bristow, 770 F.2d at 1255.

The Fourth Circuit has acknowledged that the “traditional

standard of constructive discharge ... does not neatly

translate to the context” of failure to accommodate claims.

See Johnson, 991 F.2d at 131-32. As I mention in the text,

there is no authority for the proposition that the Maryland

Court of Appeals would apply these standards to state law

claims. In any event, no reasonable fact finder could

conclude that these standards are satisfied by the available

evidence in this case.

35a

no cases to support this theory, she has not proffered

evidence to create a factual issue as to whether her working

conditions were purposefully made so intolerable that she

was forced to quit.

Pollard concedes that Area Supervisors are required

~ from time to time to cover the shifts of absentee Store Clerks

and Store Managers. She also acknowledges that after her

return from surgery, she rarely if ever completed an eight

hour work day as a Store Clerk in the Hereford store. She

acknowledges that each time she informed Sheehan of her

need to depart early for the day because of discomfort caused

by her back, he never imposed upon her any condition that

she remain at work or suffer adverse consequences. She

does not assert that she was denied the assistance of her co-

workers to implement the lifting and bending restrictions

imposed by Dr. Brager. These facts undercut her

constructive discharge claim. Apart from these allegations

Pollard does not claim that she was otherwise mistreated by

High’s although she mentions some friction with employees

at the store to which she was assigned and that she felt

humiliated by High’s insistence that she work as a clerk prior

to resuming her supervisor duties. Thus, while Pollard did

file a workers’ compensation claim in January 1998, the

record reveals little more than that she left her job nine

months later. Accordingly, I shall grant summary judgment

as to the abusive discharge claim.

For the reasons set forth above, defendant’s motion

Re ae

36a

for summary judgment shall be granted. An order follows.

Filed: November 21, 2000

ANDRE M. DAVIS

United States District Judge

37a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARY D. POLLARD, -

Plaintiff, * Civil Action No.:

AMD 99 CV 3455

¥.

HIGH’S OF BALTIMORE, INC.,

Defendant.

* * * * *

ORDER

In accordance with the foregoing Memorandum, it is

this 21 day of November, 2000, by the United States

District Court for the District of Maryland ORDERED

(1) That the defendant’s motion for summary

judgment is GRANTED and JUDGMENT IS ENTERED IN

FAVOR OF THE DEFENDANT; and further

(2) That the Clerk of the Court shall CLOSE

THIS CASE and TRANSMIT copies of this Order and the

foregoing Memorandum to counsel of record.

ANDRE M. DAVIS

United States District Judge

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