# Petition for Writ of Certiorari — Pollard v. High's of Baltimore, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0018%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 827 ## Text Supreme Court, U.&. ‘ora: FILED Ly 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? il LIST OF PARTIES The Petitioner is Mary D. Pollard. The Respondent is High’s of Baltimore, Inc. egg et Win ee ees. BOA Bate Kae = ete Bah «Cn reeinwre ie atk oro 45S iil TABLE OF CONTENTS QUESTIONS PRESENTED.................csccscsssssesssssssssssssesrens i Bee CPE FAIR EUS senesecesessovcroscnvscensevenessesesvossnnescvsvsssensoosees ll 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 ee IU GT BRU Aric cinccensvnssvevnsevnasersosvennconssconess 3 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 (C) being regarded as having such an 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 ee ee 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 7 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 NN 9 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. 10 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. a 1] 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 12 527 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 13 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 Pa | Te 14 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. 15 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 la 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. I. 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 3a 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 4a 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. A. 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. 6a 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. 7a 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. B. 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. 8a 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 + v. * HIGH’S OF BALTIMORE, INC., * Defendant. k + * - © * 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. I ' 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). II 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. ee 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” as (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... (C) The job from which the individual has been 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. IV 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. Vv 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0018%3A1. Public record. Not legal advice.