Dressel v. Safeway, Inc.

Filing 56

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 6/4/2021. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VICTORIA ROSE DRESSEL,
Plaintiff,
v.

Civil Action No. ELH-19-1556

SAFEWAY, INC.,
Defendants.

MEMORANDUM OPINION
In this employment discrimination action, plaintiff Victoria Dressel filed suit against her
former employer, Safeway, Inc. (“Safeway”), which operates a chain of supermarkets. Ms. Dressel
alleges that Safeway failed to provide her with a reasonable accommodation for a physical
disability, in violation of the Americans with Disabilities Act of 1990 (the “ADA”), as amended,
42 U.S.C. § 12101 et seq. ECF 1 (the “Complaint”). The alleged disability resulted from a car
accident that occurred in February 2016, which left Ms. Dressel with knee injuries that impaired
her ability to perform her job responsibilities in the deli department at a Safeway store. 1
Safeway has filed a post-discovery motion for summary judgment (ECF 45), supported by
a memorandum of law. ECF 45-1 (collectively, the “Motion”). Plaintiff opposes the Motion (ECF
50), supported by a memorandum of law. ECF 53. Safeway replied. ECF 55. Both sides have
also submitted exhibits.
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that
follow, I conclude that the submissions reveal genuine issues of material fact that preclude the
entry of summary judgment. Therefore, I shall deny the Motion.
1

Plaintiff was self-represented at the time she filed suit in May 2019. She retained counsel
about four months later.

I. Background 2
In 2007, Ms. Dressel, then a teenager, began part-time employment at a Safeway store in
Towson, Maryland as a “Starbuck’s Barista.” ECF 50-2 (Declaration of Dressel), ¶ 2; see ECF
45-4 (Dressel Dep.) at 8-9, 14 (Tr. at 11-12, 27). 3 She continued working at the Towson store
part-time while attending college, from which she graduated in 2014. See ECF 50-2, ¶ 2; ECF 454 at 8-9, 14 (Tr. at 11-12, 27). In February 2016, she was working as a service clerk in the deli
department of the Towson store, where her primary responsibilities involved making sandwiches.
Id. at 13 (Tr. at 26).
On February 17, 2016, Ms. Dressel was injured in a car accident. ECF 50-2, ¶ 4. In the
immediate aftermath of the accident, she received treatment from a MedStar urgent healthcare
provider. ECF 46-1 at 2. Plaintiff’s medical records from that visit reflect that she sustained a
contusion to both knees. Id. Plaintiff returned to work some days later, although her knees “were
really hurting” her. ECF 45-4 at 10 (Tr. at 16); see ECF 50-2, ¶ 4. A few weeks later, plaintiff
was assigned a new role in the deli department and tasked with “preparing rotisserie chickens” and
attending to the “hot bar.” ECF 50-2, ¶ 5. This role required lifting fifty-plus pounds on a regular
basis. Id.
In her Declaration, Ms. Dressel avers that in early May 2016, she “tried to speak with Brian
Cottel, about moving to a less demanding job on account of increasing pain in [her] knees,” but
was advised that Cottel was “too busy.” ECF 50-2, ¶ 7. Plaintiff also avers that around the same

2

The facts are taken from the parties’ exhibits, viewed in the light most favorable to
plaintiff, the nonmoving party. Some of plaintiff’s exhibits arguably contain inadmissible hearsay.
But, defendant has not lodged any challenges.
3

I cite to the electronic pagination, which does not always correspond to the page number
that appears on the particular submission.
2

time, she informed her supervisor, Charles Fowlkes, Jr., that her knee injury “made it difficult to
perform the Deli Clerk position.” Id. ¶ 8. Nothing else in the parties’ submissions references
“Brian Cottel” or either of these alleged interactions.
On May 8, 2016, Ms. Dressel was seen at “Patient First,” a healthcare provider in
Baltimore. Id. ¶ 9. She obtained a note excusing her from work for ten days and recommending
various light duty work restrictions, including “no bending with lifting more than 10 lbs, no
squatting.” ECF 50-12.
According to plaintiff, the following day she gave Mr. Fowlkes the doctor’s note and was
told that she “could not work with the light duty restrictions.” ECF 50-2, ¶ 10. Although the
submissions are fuzzy on this point, plaintiff indicates that she did not return to work at Safeway
as of that date. See ECF 53 at 7. Defendant does not suggest otherwise in its reply.
Dressel visited her “regular doctor,” Dr. Shalini Karmal, on May 12, 2016. ECF 45-4 at
26 (Tr. at 48); see ECF 46-3 at 3 (medical record). According to the medical record of that visit,
Dr. Karmal diagnosed plaintiff with bilateral knee pain, and indicated that she “probably has
sprained her knee and may have some chondromalacia.”

ECF 46-3 at 5. 4

Dr. Karmal

recommended physical therapy and an over-the-counter pain reliever twice a day, as needed. Id.
And, Dr. Karmal gave plaintiff a “slip to be on light duty” for six weeks and “to avoid lifting
anything over 10 pounds for that duration of time.” Id.
Plaintiff avers that on June 6, 2016, she spoke with Jessica Page, a human resources
manager for Safeway, “about the process for obtaining a disability accommodation,” and requested
4

“Chondromalacia patella (knee pain) is the softening and breakdown of the tissue
(cartilage) on the underside of the kneecap (patella).” Knee Pain (Chondromalacia Patella),
Cleveland
Clinic,
https://my.clevelandclinic.org/health/diseases/15607-knee-painchondromalacia-patella (last visited May 12, 2021). Adjudicative facts such as this may be
judicially noticed, pursuant to Fed. R. Civ. P. 201.
3

to be transferred to a new position. ECF 50-2, ¶ 13. In particular, plaintiff indicated an interest in
a “GMHBC” position, a barista position, and a “Hand Scanner” position. Id.; see ECF 50-4
(Jessica Page Dep.) at 4 (Tr. at 18-19).

Defendant defines “GMHBC” as “General

Merchandise/Health and Beauty Clerk.” ECF 45-1 at 8. The submissions do not otherwise explain
the reference to “Hand Scanner.”
Plaintiff avers that Ms. Page never called her back. ECF 50-2, ¶ 13. The exhibits suggest
that Ms. Page likely had a heavy workload. She was responsible for human resources issues related
to the ADA for fifty-four to sixty-six Safeway stores, and she did not have any subordinates
assisting her. Id. ECF 50-4 at 5 (Tr. at 22-23). However, nothing else in the submissions indicates
that plaintiff spoke to Ms. Page about requesting reasonable accommodation in early June 2016.
Moreover, plaintiff and Ms. Page had several subsequent exchanges, as discussed, infra.
On June 21, 2016, plaintiff was seen by Dr. David Gold of MedStar Orthopaedics. ECF
46-5 at 6 (medical record); see ECF 45-4 (Dressel Dep.) at 29-30 (Tr. at 53, 59). 5 Dr. Gold gave
plaintiff a doctor’s note indicating that she was able to return to work but was advised against
“repetitive bending or squatting” and lifting more than ten pounds. ECF 46-5 at 6. Plaintiff faxed
this note to Ms. Page and her store manager. ECF 46-5 at 7-10.
A month later, Ms. Page sent plaintiff a letter dated July 19, 2016, regarding the
accommodations process. ECF 50-5. The letter outlined the process for determining whether
plaintiff was entitled to “a job accommodation.” Id. First, plaintiff had to return a form to Ms.
Page authorizing Safeway to contact plaintiff’s treating physicians. Id. Then, Safeway would
contact the physicians to ask “for a written evaluation of [her] condition and ability to perform

5

ECF 45-4 primarily contains the transcript of plaintiff’s deposition. But, it also includes
various exhibits marked for identification during the deposition.
4

[her] duties as a Service Clerk/Deli.” Id. In addition, the letter indicated that a “job analysis” for
the GMHBC position would also be provided to the physicians, because plaintiff had expressed
interest in it. Id. After receiving the necessary evaluations from the physicians, plaintiff’s case
would be reviewed by the Accommodation Committee. Id.
Plaintiff saw Dr. Gold for a follow-up appointment on August 12, 2016. Dr. Gold informed
her that she could return to work without any restrictions. ECF 45-4 at 32 (Tr. at 61). However,
Dressel sought a second opinion. Id. at 33-34 (Tr. at 63-64).
Two weeks later, on August 25, 2016, plaintiff underwent an initial evaluation by Dr.
Jonathan Dunn, an orthopedic surgeon who practices at Multi-Specialty Health Care in Baltimore.
Id. at 37 (Tr. at 69); ECF 51 (Declaration of Dr. Dunn) at 2. The medical record from that
evaluation reflects Dr. Dunn’s initial opinion that plaintiff was “capable of lifting 10-20 pounds,
but should not perform any squatting or kneeling.” ECF 51 at 6. And, Dr. Dunn recommended
that plaintiff avoid “deep knee bends.” Id.
Plaintiff returned for a follow-up appointment on September 15, 2016. She was evaluated
by a physician’s assistant, Dan Schechter, rather than Dr. Dunn. Id. at 8-9. She informed
Schechter that she wanted to return to work in a position that did not require squatting or lifting
more than twenty pounds at a time. See ECF 45-4 at 40-41 (Tr. at 73-74). An MRI of plaintiff’s
knee revealed edema but no “internal derangement” or “surgical indications.” ECF 51 at 8.
Schechter provided plaintiff with a “Disability Form” that recommended no lifting of more than
twenty pounds, “repetative [sic] squatting,” and “ladder climbing.” ECF 50-17.
According to plaintiff’s Declaration, Ms. Page informed plaintiff that on September 21,
2016, she received the medical authorization form as to Dr. Dunn. ECF 50-2, ¶ 23. A few weeks
later, Ms. Page sent Dr. Dunn the questionnaire regarding plaintiff’s condition. Id. No other

5

evidence in the exhibits, however, indicates that Ms. Page informed plaintiff or otherwise sent the
paperwork to Dr. Dunn at that time.
Ms. Page sent Dr. Gold—the first orthopedist—the pertinent questionnaire around October
14, 2016. ECF 45-4 at 78. Dr. Gold completed the form, describing plaintiff’s prognosis as
“good,” stating “she has been released from our care,” and indicating that plaintiff was not subject
to any work restrictions. Id. at 78-79.
Plaintiff avers that she spoke with Ms. Page on November 9, 2016, and learned that Ms.
Page received the questionnaire from Dr. Gold around that date. ECF 50-2, ¶ 24. Thereafter,
plaintiff did not receive any information about the status of her accommodation request for over
two months. Id. ¶ 25. On January 18, 2017, plaintiff faxed Ms. Page a copy of the note provided
by Schechter on September 15, 2016. Id. ¶ 26. That day, apparently in response to the fax, Ms.
Page called plaintiff. Id. ¶ 27. According to plaintiff, Ms. Page was under the impression that
plaintiff had returned to work, per Dr. Gold’s approval. Id. ¶ 27. Plaintiff avers that, in effect, she
told Ms. Page that the opinion of Dr. Dunn and Schechter should be considered the basis for a
request for reasonable accommodation. See id. Plaintiff then faxed the necessary authorization
form to Ms. Page. Id.
Ms. Page sent Dr. Dunn a questionnaire regarding plaintiff’s condition, dated January 23,
2017. ECF 45-4 at 71. Official job descriptions of three Safeway positions were also included:
deli clerk; barista; and GMHBC. 6 Each job description indicated the frequency with which an
employee would have to engage in various tasks and physical movements or activities. In all of

6

The details on this point are unclear, but it seems that Ms. Page and/or the
Accommodations Committee was considering potential reasonable accommodations that could be
implemented with respect to plaintiff’s position in the deli department, or by way of a transfer to
another position.
6

the job descriptions, these frequencies were selected from a predefined set of options: “Never (0%
of [the] time)”; “Seldom (1-10% [of the time])”; “Occasional (10-30% of the time)”; “Frequent
(30-70% [of the time])”; “Constant (over 70% of the time).” ECF 45-3 at 11, 19, 24.
Of pertinence here, the job descriptions indicated the following requirements for the deli
service clerk, barista, and GMHBC positions, respectively, see id.:
Position

Constant

Frequent

Seldom

“Bend /
Stoop
(waist)”
Seldom

Barista

Frequent

Seldom

Seldom

Frequent

Seldom

Never

Occasional

GMHBC

Frequent

Occasional

Frequent

Frequent

Frequent

Frequent

Frequent

Deli

Lift 11-20
pounds

Lift 21-35
pounds

Climb
ladder

Crouch

Kneel

Squat

Frequent

Never

Seldom

clerk

Dr. Dunn completed and signed the questionnaire on February 23, 2017. Id. at 71-72. In
response to the question, “Please indicate the duration of time, if any, Ms. Dressel is able to bend
and squat for each job description,” Dr. Dunn wrote by hand “none.” Id. at 71. And, in response
to the question asking for a list of “any task which Ms. Dressel can NOT perform for each job
description and why,” Dr. Dunn wrote by hand: “Lifting > 20 lbs., ladder, squatting.” Id. at 72.
He also indicated that the restriction on bending and squatting was to last for one year. On March
10, 2017, Ms. Page emailed plaintiff to inform her that the paperwork from Dr. Dunn was received
the previous day. ECF 50-19 at 2.
Around that time, on March 7, 2017, plaintiff submitted an intake questionnaire to the U.S.
Equal Employment Opportunity Commission (“EEOC”). ECF 1-2 at 24-27. In response to the
question, “What happened to you that you believe was discriminatory?” plaintiff wrote: “I was
never accommodated for a doctor-excused, light duty position due to a car accident. It has taken
too long.” Id. at 25. As described, infra, the EEOC later attempted to facilitate an informal
7

conciliation process between the parties. ECF 1-4. But, neither side clearly recounts the facts of
the EEOC’s involvement.
Ms. Page called plaintiff on March 21, 2017, and offered her a transfer to a barista position
as a reasonable accommodation. See ECF 45-1 at 12; ECF 50-2, ¶ 32. But, there is no
documentation of a written offer. In particular, plaintiff asserts that Ms. Page informed her “that
the Job Accommodation Committee chose the Starbucks position for [her].” ECF 50-2, ¶ 32; see
also ECF 45-4 at 73 (April 3, 2017 email from plaintiff to Ms. Page, referencing the job offer made
orally on March 21, 2017).
It is not clear whether Ms. Page offered any explanation of why plaintiff was offered the
barista position as a reasonable accommodation. Moreover, Ms. Page indicated at her deposition
that the GMHBC position had been considered as a possible reasonable accommodation for
plaintiff around that time. ECF 50-4 at 6 (Tr at 48-49). Ms. Page testified that certain requirements
of the GMHBC position that plaintiff would not have been able to perform, such as lifting heavy
objects, could have been “waiv[ed].” Id. at 6 (Tr. at 49). But, Ms. Page never communicated in
writing to plaintiff that a transfer to the GMHBC position, with certain job requirements waived,
was considered by the Accommodations Committee as a potential reasonable accommodation. Id.
at 7 (Tr. at 50). Nor did Ms. Page remember ever orally communicating that information to
plaintiff. See id.
Plaintiff rejected the offer of the barista position, even though she had previously expressed
interest in it. See ECF 50-4 (Page Dep.) at 4 (Tr. at 18-19). Plaintiff asserted that the demands of
the job exceeded her physical capabilities and were “opposed to what [her] doctors prescribed.”
ECF 45-4 at 73. A few weeks later, on April 3, 2017, plaintiff emailed Ms. Page and asked that

8

she be considered “for other positions that better match what [she was] able to do physically,”
namely, “File Maintenance and Pharmacy Tech.” Id.
On April 4, 2017, Ms. Page sent plaintiff the job description of the pharmacy technician
position.

ECF 45-4 at 74.

The job description for that position indicated the following

requirements, ECF 45-3 at 31-34: 7
Lift 11-20
pounds
Occasional

Lift 21-35
pounds
Seldom

Climb
ladder
Seldom

“Bend/Stoop
(waist)”
Occasional/
Frequent

Crouch

Kneel

Squat

Seldom

Seldom/
Occasional

Seldom/Occasional

According to plaintiff, she spoke with Ms. Page on the phone that day, and learned that “in
order to be considered for the Pharmacy Tech position, Dr. Dunn would have to change his
responses” regarding the restrictions on bending and squatting. ECF 50-2, ¶ 35. Defendant does
not address whether Ms. Page made such a statement.
On May 15, 2017, plaintiff emailed the paperwork to Ms. Page, purportedly completed by
Dr. Dunn, regarding the pharmacy technician position. ECF 45-4 at 75. That paperwork was
almost an identical copy of the questionnaire completed by Dr. Dunn a few months earlier. In
particular, the last date of examination (September 15, 2016), signature, and signature date
remained unchanged. See id. at 76-77. However, below the question regarding “the duration of
time, if any, Ms. Dressel is able to bend and squat for each job description,” the handwritten word
“occasional” was added next to the word “none.” Id. And, below the question asking to list “any
task which Ms. Dressel can NOT perform for each job description and why,” the handwritten word
“repetitive” was added below “Lifting > 20 lbs., ladder, squatting.” Id. at 77.

7

The designations for bending, kneeling, and squatting, respectively, are ambiguous,
because the job description for each task contains two descriptors of the frequency of the task, as
reflected in the table set forth in the text above. ECF 45-3 at 33. Neither side acknowledges or
explains these ambiguities.
9

Defendant suggests concern about the authenticity of this form. See ECF 45-1 at 13. Dr.
Dunn testified at his deposition that he did not recall meeting with plaintiff in the spring of 2017
and that the words “occasional” and “repetitive” were not his handwriting. See ECF 45-6 (Dunn
Dep.) at 3 (Tr. at 25). Moreover, the Declaration of Dr. Dunn, which was submitted by plaintiff,
attests to the authenticity of various medical records generated by his office pertaining to plaintiff,
but makes no mention of the disability questionnaire supposedly completed in the spring of 2017.
See ECF 51 at 2-3.
It is unclear what, if any, developments took place during the five months that followed.
Plaintiff avers that on July 11, 2017, Ms. Page told plaintiff “to call different stores to see if they
had any available Pharmacy Technician positions,” and “said she would do the same.” ECF 50-2,
¶ 40. In any event, both sides seem to agree that Ms. Page never formally extended an offer to
Dressel for a transfer to the Pharmacy Technician position.
Dr. Dunn saw plaintiff for a follow-up appointment on October 5, 2017. ECF 51 at 3. The
medical record from that appointment reflects that Dr. Dunn noted that plaintiff’s ongoing knee
pain would “likely remain permanent.” Id. at 13. It adds: “Permanent work restrictions, including
no repetitive squatting, ladder climbing, and no lifting more than 20 pounds at this time are
appropriate.” Id. at 14. Plaintiff left that appointment with a “Disability Form” that indicates that
as of that date, plaintiff could perform light duty work, with no lifting over twenty pounds and no
“repetitious squatting or ladder climbing.” Id. at 16.
On December 4, 2017, Ms. Page sent a letter to plaintiff offering her a leave of absence as
a reasonable accommodation.

ECF 50-24. Of course, by that point plaintiff had not actually

worked a shift at Safeway in a year and a half. Nor has she done so since. A letter subsequently

10

sent to plaintiff indicated that her employment was formally terminated on September 21, 2018.
ECF 50-11.
On September 10, 2018, the EEOC issued a “Determination” concerning plaintiff’s charge
against Safeway, stating that there was “reasonable cause to believe that [Safeway] violated the
ADA by failing to reasonably accommodate [plaintiff] (including reassignment) and placing her
on a leave of absence because of her disability.” ECF 1-4 at 1. Accordingly, the EEOC “invite[d]
the parties” to reach a resolution through a process of “conciliation.” Id. at 2.
Thereafter, an EEOC attorney, Maria Salacuse, sent Dr. Dunn’s office the job description
for the pharmacy technician position. ECF 45-5 at 14. Dr. Dunn completed a form indicating that
plaintiff could “perform [the] job as described,” and that she was able to do so as of October 5,
2017. Id. at 31.
It is undisputed that sometime in November 2018, Safeway offered plaintiff the pharmacy
technician position. See ECF 45-1 at 15; ECF 53 at 13. Ms. Page subsequently sent plaintiff a
follow-up letter requesting a response to the offer. ECF 45-4 at 84. Plaintiff did not accept the
offer, however. At plaintiff’s deposition, she was asked why she did not accept the offer. She
responded: “I would have taken it, but I think that it wasn’t just done in a timely manner.” Id. at
56 (Tr. at 123). And, she elaborated: “I was fired from Safeway and I felt why should I take
something from a place that’s firing me for no reason right now, so that’s just how I was feeling
at the time.” Id. at 57 (Tr. at 124).
On February 21, 2019, the EEOC issued a “Notice of Failure to Conciliate,” accompanied
by a “Notice of Right to Sue” addressed to plaintiff. ECF 1-3. This suit followed.

11

II. Legal Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate
only “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
see also, e.g., Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir. 2020). To avoid summary
judgment, the nonmoving party must demonstrate that there is a genuine dispute of material fact
so as to preclude the award of summary judgment as a matter of law. Ricci v. DeStefano, 557 U.S.
557, 585-86 (2009); see also, e.g., Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018).
The Supreme Court has clarified that not every factual dispute will defeat a summary
judgment motion. “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is
“material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.
There is a genuine issue as to material fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647,
658 (4th Cir. 2020). On the other hand, summary judgment is appropriate if the evidence “is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. But, “the
mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.” Id.
“A party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts showing
that there is a genuine issue for trial.’” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,

12

522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004); see
Celotex, 477 U.S. at 322-24. And, the court must view all of the facts, including reasonable
inferences to be drawn from them, in the light most favorable to the nonmoving party. Ricci, 557
U.S. at 585-86; accord Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019).
The district court’s “function” is not “to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249;
accord Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in
considering a summary judgment motion, the court may not make credibility determinations.
Wilson v. Prince George’s Cty., 893 F.3d 213, 218-19 (4th Cir. 2018). Therefore, in the face of
conflicting evidence, such as competing affidavits, summary judgment ordinarily is not
appropriate, because it is the function of the fact-finder to resolve factual disputes, including
matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th
Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
That said, “a party’s ‘self-serving opinion . . . cannot, absent objective corroboration, defeat
summary judgment.’”

CTB, Inc., 954 F.3d at 658-59 (citation omitted).

In other words,

“[u]nsupported speculation is not sufficient to defeat a summary judgment motion.” Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); see Harris v. Home Sales Co., 499
F. App’x 285, 294 (4th Cir. 2012).
III. Discussion
A.
The ADA, 42 U.S.C. §§ 12101 et seq., was enacted “to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals with disabilities,”
42 U.S.C. § 12101(b)(1), and “to provide clear, strong, consistent, enforceable standards

13

addressing discrimination against individuals with disabilities.” Id. § 12101(b)(2). To that end,
the statute “prohibits discrimination against persons with disabilities in three major areas of public
life,” namely, employment, public services, and public accommodations. A Helping Hand, LLC
v. Baltimore County, Md., 515 F.3d 356, 361 (4th Cir. 2008). 8
Of relevance here, Title I of the ADA concerns employment. It prohibits employment
discrimination “against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees . . . and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a).
A “qualified individual” is defined in the ADA as a person who, “with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). A disability is defined as: “(A) a physical
or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment[.]” Id.
§ 12102(1); see Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 239 (4th Cir. 2016)
(quoting 29 C.F.R. § 1630.2(k)(1)). Major life activities include, but are not limited to, “sleeping,
walking, standing, lifting, bending . . . working” and “reproductive functions”

42 U.S.C.

§12102(2)(A)-(B).
An individual with a “a record of such an impairment,” or who is “regarded as having such
an impairment,” is considered to have a disability. Id. § 12102(1)(B)-(C). A plaintiff has a “record

8

The ADA incorporates the administrative exhaustion requirement found in Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Sydnor v. Fairfax Cnty., 681 F.3d 591,
593 (4th Cir. 2012). The requirement that a Title VII plaintiff exhaust her administrative remedies
is “an integral part” of the enforcement scheme that Congress established in Title VII. See Chacko
v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005). By incorporation, it is also integral to the
ADA. See Sydnor, 681 F.3d at 593. It is clear that plaintiff exhausted her administrative remedies.
14

of disability” if she can show that she “‘has a history of, or has been misclassified as having, a
mental or physical impairment that substantially limits one or more major life activities.” Foore
v. Richmond, 6 F. App'x 148, 153 (4th Cir. 2001) (quoting 29 C.F.R. § 1630.2(k)(1)). This is “‘a
question of law for the court.’” Coghill v. Bd. of Educ. of Prince George's Cty., GJH-14-2767,
2017 WL 1049470, at *5 (D. Md. Mar. 17, 2017) (citation omitted), aff’d, 703 F. App’x 211 (4th
Cir. 2017). To resolve this question, the court must make an “an individualized inquiry, particular
to the facts of each case.” E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001). The
“date of an adverse employment decision is the relevant date for determining whether a plaintiff
is a ‘qualified individual with a disability.’” E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373,
379 (4th Cir. 2000).
Of pertinence here, the failure reasonably to accommodate “the known physical or mental
limitations of an otherwise qualified individual with a disability” constitutes discrimination under
Title I of the ADA. 42 U.S.C. § 12112(b)(5)(A); see Wilson v. Dollar Gen. Corp., 717 F.3d 337,
344 (4th Cir. 2013). A reasonable accommodation either (1) enables a qualified individual with a
disability to perform the essential functions of a position, 29 C.F.R. § 1630.2(o)(1)(ii), or (2)
enables an employee with a disability to “enjoy equal benefits and privileges of employment as
are enjoyed by . . . other similarly situated employees without disabilities.” Id. § 1630.2(o)(1)(iii);
see Hamel v. Bd. of Educ. of Harford Cty., JKB-16-2876, 2018 WL 1453335, at *10 (D. Md. Mar.
23, 2018). It may include “job restructuring, part-time or modified work schedules, reassignment
to a vacant position,” and leave, among other things. 42 U.S.C. § 12111(9); see 29 C.F.R. pt. 1630
app. § 1630.2(o).
However, an accommodation is not reasonable as a matter of law if it will cause the
employer “‘undue hardship in the particular circumstances.’” Reyazuddin v. Montgomery Cty.,

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789 F.3d 407, 414 (4th Cir. 2015) (quoting U.S. Airways v. Barnett, 535 U.S. 391, 401–02 (2002)).
At “the summary judgment stage, the employee ‘need only show that an “accommodation” seems
reasonable on its face,’ and then the employer ‘must show special (typically case-specific)
circumstances that demonstrate undue hardship.’” Reyazuddin, 789 F.3d at 414 (quoting Barnett,
535 U.S. at 401–02).
In order to establish a prima facie claim of failure to accommodate, plaintiff must show:
(1) that she had a disability; (2) that her employer had notice of her disability; (3) that she was a
qualified individual under the ADA—that is, that she could perform the essential functions of the
position with reasonable accommodation; and (4) that her employer did not provide such
accommodation. See Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 579 (4th
Cir. 2015).

As a necessary corollary of the fourth requirement, the plaintiff must have

communicated to her employer “a wish for accommodation of her disability.” Parkinson v. Anne
Arundel Medical Ctr., 79 F. App’x 602, 604 (4th Cir. 2003).
The applicable federal regulations provide that to “determine the appropriate reasonable
accommodation it may be necessary for the [employer] to initiate an informal, interactive process
. . . .” 29 C.F.R. § 1630.2(o)(3). The so-called “interactive process” should “identify the precise
limitations resulting from the disability and potential reasonable accommodations that could
overcome those limitations.” Id.; see also Haneke v. Mid-Atl. Capital Mgmt., 131 F. App’x 399,
399-400 (4th Cir. 2005) (characterizing the interactive process as an “implicit . . . requirement” of
the fourth element of the prima facie case).
The responsibility to engage in the interactive process is “shared between the employee
and the employer.” Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1991) (emphasis
in Loulseged). “A party that obstructs or delays the interactive process, or simply fails to

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communicate, is not acting in good faith to find a solution.” Fleetwood v. Harford Systems, Inc.,
380 F. Supp. 2d 688, 701 (D. Md. 2005). Moreover, “the employer must work with the employee
to determine what accommodation would help,” and the employer “cannot escape liability simply
because the employee does not suggest a particular reasonable accommodation that would assist
him.” Id. In the same vein, the employee “cannot prevail simply by demonstrating that his
employer failed to engage in the interactive process; he must also show that this failure to engage
in the process resulted in the failure to find an appropriate accommodation.” Id.
B.
Safeway does not contest that plaintiff had a record of a disability. To the contrary, the
Motion is premised on the notion that plaintiff’s knee condition constituted a disability under the
statute. See ECF 45-1 at 20-23. The gist of the Motion is that from the summer of 2016, when the
interactive process commenced, until the fall of 2018, when Dr. Dunn indicated that plaintiff was
fit to perform the pharmacy technician position, plaintiff was not a qualified individual with a
disability, within the meaning of the ADA.
In Safeway’s view, the medical information that it received during the relevant period
indicated that plaintiff’s disability rendered her unable to perform the essential functions of a deli
clerk, barista, GMHBC, and pharmacy technician, with or without reasonable accommodation.
See id. Moreover, Safeway points out that the ADA does not require an employer to eliminate
essential job functions. See id. Therefore, Safeway contends that plaintiff was not a qualified
individual under 42 U.S.C. § 12111(8); see Jacobs, 780 F.3d at 579.
As for plaintiff’s rejection of the pharmacy technician offer in the fall of 2018, Safeway
maintains that she “bears sole responsibility for any resulting loss of income since that date.” ECF
45-1 at 26 (citing, inter alia, Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273 (4th Cir.

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1985)). In other words, Safeway seems to argue that plaintiff does not have a claim as to the period
following her rejection of the pharmacy technician offer in November 2018. Plaintiff does not
suggest otherwise. As a result, she has waived any opposition to this argument. See Stenlund v.
Marriot Int’l, Inc., 172 F. Supp. 3d 874, 887 (D. Md. 2016) (“In failing to respond to [defendant’s]
argument, Plaintiff concedes the point.”); Ferdinand-Davenport v. Children’s Guild, 742 F. Supp.
2d 772, 777 (D. Md. 2010) (same). Even if plaintiff had opposed Safeway’s argument, case law
instructs that refusal of reasonable accommodation renders a plaintiff ineligible for relief under the
ADA. See Crocker v. Runyon, 207 F.3d 314, 320 (6th Cir. 2000) (stating that a plaintiff “is not an
otherwise qualified individual once he rejects an offer of reasonable accommodation”); Roberts v.
Cty. of Fairfax, Va., 937 F. Supp. 541, 547 (E.D. Va. 1996) (“Inherent in the definition of a
‘qualified individual’ under the ADA is a significant limitation: the individual must be willing to
accept his employer’s efforts at reasonable accommodation if the accommodation is necessary for
the individual to perform his job.”). Therefore, I agree with defendant that plaintiff cannot prevail,
at least as to the period beginning in November 2018.
Notably, Safeway does not take issue with plaintiff’s refusal of the offer of the barista
position in March 2017. That is, it does not make the case that plaintiff was not a qualified
individual from that point forward because of the refusal. Rather, Safeway’s theory is that plaintiff
was not a qualified individual until the fall of 2018, because the medical evaluations by Dr. Dunn
indicated that plaintiff could not perform the essential duties of the deli clerk, barista, GMHBC,
and pharmacy technician positions, with or without reasonable accommodation.
In addition, Safeway argues that it was not obligated to consider transferring plaintiff to
the file maintenance position because it would have constituted a promotion under the pertinent
collective bargaining agreement. See ECF 45-1 at 24-25 (citing, inter alia, Barnett, 535 U.S. at

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403, for the proposition that the ADA does not require reasonable accommodation in the form of
transfers that “trump the rules of a seniority system”). This, too, plaintiff does not address. Thus,
she waives argument as to this issue.
In her opposition, plaintiff contends that she was a qualified individual with a disability
capable of performing the functions of the pharmacy technician position.

ECF 53 at 19.

Specifically, she asserts that “if Ms. Page had done her job . . . Plaintiff could . . . have been placed
in the Pharmacy Tech position after September 15, 2016.” Id. at 20. Dressel seems to overlook
that she did not express an interest in that position until April 3, 2017, and that Ms. Page received
Dr. Dunn’s evaluation of plaintiff’s fitness to perform that position’s essential functions even later.
But, construing the argument liberally, I take plaintiff to claim that she should have been offered
the pharmacy technician position sometime during 2017, well before Dr. Dunn expressly cleared
her to perform the requisite duties in the fall of 2018. See ECF 45-5 at 14.
As noted, the job description for the pharmacy position designates the frequency of
squatting while performing job functions as both “seldom” (defined as 0-10% of the time) and
“occasional” (defined as 10-30% of the time). ECF 45-3 at 31-34. The frequency of bending or
stooping at the waist is designated as “occasional” or “frequent” (defined as 30-70% of the time).
Thus, the pharmacy technician job description is ambiguous on its face. Both sides appear to
assume that squatting is an essential function of the pharmacy technician position. See ECF 53 at
19-23; 55 at 5-8. But, neither side offers explanation of the job description or attempts to illustrate
how squatting, bending, or stooping at the waist figured in the daily duties of a Safeway pharmacy
technician.
To be sure, squatting for eighteen minutes out of every hour (amounting to 30% of the
time) is qualitatively different from squatting for just a few minutes (which would approach 0%

19

of the time)—especially to someone with significant, persistent knee pain. The same is true of
bending or stooping for over forty minutes out of every hour, as opposed to ten minutes or less.
On this record, it is difficult to say what the requirements were for the pharmacy technician job.
Consequently, I cannot determine whether plaintiff was capable of performing them.
Safeway discusses the job requirements of the relevant positions as though they were set
in stone, not subject to any modification whatsoever. However, Ms. Page’s deposition testimony
indicates that may not actually have been true. As mentioned, Ms. Page testified that that the
GMHBC position had been considered as a possible reasonable accommodation for plaintiff in the
spring of 2017, around the time that the barista position was offered to plaintiff. ECF 50-4 at 6,
Page Dep. at 48-49. Of pertinence here, Ms. Page testified that some of the requirements of the
GMHBC position, such as lifting heavy objects, could have been “waiv[ed].” Id. at 6, Page Dep.
at 49. Yet, plaintiff was never informed of this.
It is not clear from the sparse excerpts of the deposition transcript that have been submitted
whether Ms. Page was questioned further about which job requirements could have been modified
or whether the job requirements of other positions could have been modified. But, the testimony
that has been provided implies that some of the requirements of the relevant positions could have
been adjusted to accommodate plaintiff, and thus, that if plaintiff had been informed that the
requirements were subject to modification, she and Ms. Page could have worked together to land
on a reasonable accommodation.
Accordingly, I conclude that this record contains genuine issues of material fact and that
Safeway has failed to carry its burden at this juncture. My task is simply to determine whether
any triable issue exists. That said, certain facts cannot escape notice. By now, five years have
passed since the interactive process began. Plaintiff twice rejected offers to transfer to other

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positions. And, since she ceased working at Safeway during 2016, it appears that plaintiff has not
attempted to procure other gainful employment.

Nevertheless, based on the submissions,

defendant is not entitled to summary judgment.
IV. Conclusion
For the foregoing reasons, I shall deny the Motion.
An Order follows.
Date: June 4, 2021

/s/
Ellen L. Hollander
United States District Judge

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