Carrier v. VCA Animal Hospitals, Inc.
Filing
58
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/13/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMIE CARRIER
:
v.
:
Civil Action No. DKC 11-0129
:
VCA ANIMAL HOSPITALS, INC.
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination and failure to accommodate case is the motion for
summary judgment filed by Defendant VCA Animal Hospitals, Inc.
(“VCA”).
(ECF No. 51).
The issues have been fully briefed, and
the court now rules, no hearing deemed necessary.
105.6.
For
the
following
reasons,
the
motion
Local Rule
for
summary
judgment will be granted in part and denied in part.
I.
Background
A.
Factual Background
The
following
facts
are
uncontroverted
or
taken
in
the
light most favorable to Plaintiff Amie Carrier, unless otherwise
indicated.
1.
Dr. Carrier’s Medical Condition
Dr.
Carrier
seizures.1
1
has
epilepsy,
which
causes
her
to
have
According to Dr. James Yan, one of Dr. Carrier’s
She is a resident of Maryland.
treating physicians, Dr. Carrier experiences “compressed partial
seizures.”
(ECF No. 51-3, Yan Dep., at 33).
“easy to control.”
(Id. at 34).
day as some people do.
(Id.).
Her seizures are
She does not have them every
Her seizures typically occur “if
she doesn’t take medicine or [is] sleep deprived.”
(Id.).
Dr.
Yan testified that “[i]f she take[s] medicine, she should be
okay.”
(Id. at 34-35).
When Dr. Carrier is about to experience a seizure, the
“first inkling” she has that one is coming is “severe GI signs.”
(ECF No. 54-10, Carrier Aff., ¶ 1).
In addition, she “may feel
extremely tired, sick to [her] stomach, or sometimes [she will]
have a tingling in [her] hands.”
(Id. ¶ 2).
symptoms usually last about five minutes.
These pre-ictal
(Id. ¶ 5).
During a
seizure itself, which lasts from thirty seconds to two minutes,
she is “not aware of what is going on.”
(Id. ¶¶ 3, 5).
After a
seizure, she is “confused, cold, [and her] muscles hurt.”
¶ 4).
(Id.
She is “extremely thirsty,” “usually feel[s] nauseous,”
and she “may have injuries” if she fell during the seizure.
(Id.).
These
post-ictal
minutes to “hours.”
symptoms
last
anywhere
from
thirty
(Id. ¶ 5).2
2
Dr. Carrier also suffers from clustering, which is
multiple seizures in a row. (Id. ¶ 6). When clustering occurs,
“it took days to completely return to normal.” (Id.).
2
During her time at VCA, Dr. Carrier took several different
types of anti-seizure medications.
which was not effective.
She started with Lamicatal,
(Id. ¶ 10).
another drug called Trileptal.
(Id.).
She then switched to
Because of various side
effects, Dr. Carrier stopped taking Trileptal and moved on to
Dilantin.
(Id.
“tired”
and
(Id.
14).
¶
suicidal
have
¶¶
“slurred
It
caused
thoughts,”
unable to sleep.”
13-14).
and
(Id.).
The
speech
her
Dilantin
[and]
“hands
sometimes
it
to
made
Dr.
increased
shake
made
her
[and
Carrier
appetite.”
to
have]
“restless
and
While on Dilantin, Dr. Carrier “felt
out of it, dizzy and uncoordinated, [had] difficulty walking,
and [was] generally ataxic depending on when the medication was
taken during the day.”
(Id. ¶ 15).
According to her, the “side
effects were unpredictable and depended heavily on sleep and
stress.”
2.
(Id. ¶ 16).
Dr. Carrier’s Employment and Medical Leave at VCA
VCA, a California corporation, owns and operates a network
of roughly 540 animal hospitals throughout the United States.
(ECF No. 51-5, Smith Decl., at 2 ¶ 3).3
3
In July 2007, Dr.
This exhibit contains both Ms. Smith’s declaration as well
as numerous exhibits in support of that declaration.
When
referencing the declaration, this memorandum opinion will cite
to both the relevant page and paragraph number(s).
(The page
numbers represent those assigned by the CM/ECF system.).
When
referencing exhibits attached to the declaration, the opinion
will cite the relevant page number(s) in the ECF document as
3
Carrier began a veterinary residency program at VCA’s facility
in Gaithersburg, Maryland.
On her first evaluation in November
of that year, Dr. Carrier received ratings from “Average” to
“Excellent” along with generally positive comments.
(See ECF
No. 54-6).
In December 2007, Dr. Carrier had a seizure for the first
time that she is aware of.
114).
(ECF No. 51-4, Carrier Dep., at
Dr. Carrier’s life was not significantly affected by her
seizures, however.
According to her, she “really didn’t do
anything differently” in relation to her “job” or her “life.”
(See id. at 112-13).4
When specifically asked about her ability
to
Carrier
do
her
job,
Dr.
testified
coherent,” she could perform her duties.
that
“once
[she]
(Id. at 113).
was
She
experienced about ten seizures in total while actually at work
during her tenure with VCA.
(Id. at 149).
At first, VCA suspected that Dr. Carrier may have been
having
seizures,
but
suspicion right away.
it
did
not
have
confirmation
of
its
(See ECF No. 54-4, Sanders Dep., at 64).
well as the exhibit designation provided by Ms. Smith. The same
citation format will be used when referencing other declarations
submitted by VCA.
In other citations to the record, however,
such as with deposition transcripts, references are to the
internal pagination.
4
For about three months after Dr. Carrier first started
having seizures, she was not supposed to drive.
(Id. at 112).
Since then, she has been legally permitted to drive. (Id.).
4
Regardless,
from
the
second
half
of
December
2007
to
late
January 2008, Dr. Carrier was granted a medical leave to address
her health issues.
at 64).
(See ECF No. 51-5, at 2 ¶ 5; ECF No. 54-4,
VCA subsequently offered to work with Dr. Carrier to
provide her with time to address her health.
(See ECF No. 51-
11, Sanders Decl., Ex. A, at 12).
On
April
26,
2008,
Dr.
Carrier
seizures in a bathroom at work.
133-35).
door.
a
(ECF No. 54-2, Carrier Dep., at
(ECF No. 51-5, Ex. C, at 14).
and
attempted
multiple
Dr. Carrier had gone into the bathroom and locked the
“banging”
Brown,
experienced
to
from
inside,
several
unlock
Dr.
other
the
Carrier’s
members
door.
unlocked the door herself.
Hearing running water and
of
(Id.).
(Id.).
colleague,
the
VCA
Dr.
Dr.
support
Carrier
Sara
staff
finally
At that point, Dr. Brown
asked Dr. Carrier whether she was having a seizure, and Dr.
Carrier responded no.
(Id.).5
Because Dr. Carrier was “hunched
on the toilet and . . . difficult to rouse,” however, paramedics
were called.
(Id.).
By the time the paramedics arrived, Dr.
Carrier’s condition had improved such that she did not need to
go to the hospital.
(See id.).
Following this incident, in May
5
In her deposition, Dr. Carrier explained that she told Dr.
Brown that she was not having a seizure either because she may
not have understood what Dr. Brown was asking or because she was
not, at that precise moment, having a seizure.
(ECF No. 54-2,
at 135).
5
2008, Dr. Carrier was granted another medical leave.
(ECF No.
54-4, at 83).
During that same month, VCA received a letter dated May 8,
2008, from Dr. Norman Luban, who had been treating Dr. Carrier
for her epilepsy.
(ECF No. 54-7, Smith Dep., at 65).
The note
read, in relevant part, as follows:
Dr. Carrier is under my care for a seizure
disorder. There are well known triggers for
seizures, which will cause breakthroughs
including sleep deprivation.
It is my
understanding that Dr. Carrier has been
required to be up all night for more than
one night in a row and in my opinion that is
not serving her best health interest.
I
think it puts her at significant risk for
having an epileptic seizure.
I would
suggest and recommend that any accommodation
be made . . . on her behalf.
(ECF No. 51-6, Luban Dep., at 9).
In a separate note, Dr. Luban
certified that he had seen Dr. Carrier on May 8th.
He
wrote,
regarding
Dr.
Carrier:
Sleep deprivation to be avoided.”
“Able
to
(Id. at 13).
return
to
work.
(Id.).
On May 15, 2008, Dr. Carrier was taken to the emergency
room for an apparent overdose of Dilantin, alcohol, or both.
Dr. Carrier’s boyfriend paged Dr. Luban to tell him about the
visit.
(Id.
at
11).
After
speaking
with
boyfriend, Dr. Luban made several observations.
Dr.
Carrier’s
He “strongly
suspected that [Dr. Carrier] had not been faithful” in taking
the appropriate dosage of Dilantin.
6
(Id.).
He thought that she
was “behaving in an irrational fashion.”
Dr.
Carrier’s
strange.
to
Dr.
pattern
(See id.).
Carrier
of
visits
to
(Id.).
Dr.
Yan
And he found
and
to
himself
On May 19, 2008, Dr. Luban sent a letter
terminating
their
professional
relationship.
(Id. at 10).
Dr. Yan continued to treat Dr. Carrier.
May
Toward the end of
2008,
of
VCA
faxed
a
written
description
Dr.
Carrier’s
position to Dr. Yan for him to evaluate Dr. Carrier’s ability to
return to work.
(ECF No. 51-3, Ex. 4, at 14-18).
The position
description included a reference to the following duty:
be
willing
conditions.”
to
work
long
or
(Id. at 15).
irregular
hours
under
“Must
pressure
In response, Dr. Yan provided a
letter dated May 21, 2008, that certified that Dr. Carrier could
return to work on May 27, 2008.
letter read:
(Id. at 19).
“Dr. Carrier has seizures.
adjusting her medication.
In addition, his
Currently, we are
She should be able to go back to her
regular job without restriction on 052708, or earlier.”
(Id.).
From May 2008 after she returned from her medical leave
until her termination in December 2008, Dr. Carrier did not
experience another seizure that she was aware of while at work.
(ECF No. 51-4, at 138-40).
3.
Dr. Carrier’s Termination from VCA
Throughout Dr. Carrier’s tenure with VCA, several reports
of unprofessional behavior were lodged against Dr. Carrier.
7
For
example, shortly after Dr. Carrier returned from her January
2008 medical leave, she attended a continuing education course
in Hawaii.
(ECF No. 51-5, at 2 ¶ 6).
During this trip, Dr.
Carrier was reported to have “[t]hreatened to jump off of the
balcony
of
telephone
her
with
hotel,”
her
excessive degree.”
“[f]ought
boyfriend,”
several
and
times
“[d]rank
over
alcohol
the
to
an
(Id.).
Various staff members at VCA, including Margaret Austin,
the
Office
Manager,
and
Dr.
Nancy
Sanders,
received
other
complaints about Dr. Carrier’s interactions with the owners of
patients and other staff members.
instance,
that
she
received
Dr. Sanders testified, for
complaints
that
Dr.
Carrier
was
“rude at times, dismissive of people trying to address client
complaint with her.
be reached.”
Disappearing at times and not being able to
(ECF No. 51-8, Sanders Dep., at 53).
On December 11, 2008, Dr. Carrier’s employment with VCA was
terminated.
The “Employee Separation Report” that was compiled
with respect to her discharge stated that she was “termed for
unprofessional erratic behavior.”
34).
The report went on to detail several instances of behavior
that VCA found unacceptable.
VCA
(ECF No. 51-5, Ex. F., at
pointed
Numerous
VCA
to
Dr.
staff
Carrier’s
members
Among the various reasons given,
behavior
reported
on
that
December
Dr.
8,
Carrier
2008.
was
“incoherent, ataxic, slurring words, and generally looked in bad
8
shape.”
(Id.
at
36).
On
several
occasions,
Dr.
Carrier’s
superiors met with her and attempted to discuss their concerns,
but Dr. Carrier consistently “diverted” the conversations away
to
tangential
matters.
(See
id.
at
36-37).
Ultimately,
a
collection of Dr. Carrier’s supervisors, including Dr. Sanders,
human
resources
personnel,
terminate Dr. Carrier.
and
in-house
counsel,
decided
to
charge
of
(ECF No. 51-5, at 4 ¶ 14).
B.
Procedural Background
On
May
20,
2009,
Dr.
Carrier
filed
a
discrimination with the Maryland Commission on Human Relations.
On October 4, 2010, the Commission issued its Written Finding,
concluding that there is “No Probable Cause to believe that
[VCA]
discriminated
disability”
pursuant
against
to
[Dr.
Title
20,
Carrier]
because
Subtitle
6
of
of
the
her
State
Government Article of the Maryland Code.
On December 3, 2010, Dr. Carrier filed a complaint against
VCA in the Circuit Court for Montgomery County, Maryland.
After
service, VCA timely removed to this court on the basis of both
federal question jurisdiction and diversity jurisdiction.
No. 1).
The complaint contains three counts:
(ECF
(1) violation of
the Americans with Disabilities Act (“ADA”); (2) violation of
9
Title 20, Subtitle 6 of the State Government Article of the
Maryland Code;6
and (3) violation of the Montgomery County Code.
On January 26, 2011, VCA answered the complaint.
12).
Discovery subsequently took place.
(ECF No.
A little less than a
year later, on January 4, 2012, VCA moved for summary judgment
as to all counts.
(ECF No. 51).
papers on February 6, 2012.
February 23, 2012.
II.
Dr. Carrier filed opposition
(ECF No. 54).
VCA replied on
(ECF No. 57).
Standard of Review
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v.
Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
6
Because of the timing of the events underlying this case,
the prior version of Title 20 of the State Government Articles
of the Maryland Code actually applies.
That earlier version,
Article 49B of the Maryland Code, was recodified into Title 20
of the State Government Articles without substantive revision.
See Wash. Suburban Sanitary Comm’n v. Phillips, 413 Md. 606, 610
n.2 (2010).
10
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
to
“A mere scintilla of
prevent
summary
judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).
construe
the
favorable
to
facts
the
that
Liberty Lobby, 477 U.S. at
At the same time, the court must
presented
opposing
party
are
the
in
the
motion.
light
See
most
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
III. Analysis
A.
Count One:
ADA
Dr. Carrier advances two theories for recovery under the
ADA.
First, she argues that VCA failed to provide her with a
reasonable accommodation.
argues
that
disabled.
VCA
(ECF No. 2 ¶¶ 53-55).
wrongfully
(Id. ¶ 56).
terminated
her
Second, she
because
she
was
VCA counters that, under either theory,
Dr. Carrier’s claims must fail because she has not proffered
sufficient evidence that she is disabled within the meaning of
11
the ADA.7
(ECF No. 51-1, at 21-26).
In this case, VCA is
correct.
According to the general rule propounded by the ADA:
“No
covered entity shall discriminate against a qualified individual
with a disability because of the disability of such individual .
. . .”
42 U.S.C. § 12112(a).
In other words, regardless of the
theory under which Dr. Carrier seeks to pursue an ADA claim, she
must establish that she has a “disability” within the meaning of
the statute.
The ADA defines “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
impairment;
impairment.”
or
(C)
being
regarded
42 U.S.C. § 12102(2).
Carrier’s reliance on subsection (A).8
as
having
such
Here, VCA challenges Dr.
While VCA concedes that
7
The ADA was amended in 2008, which had the effect of,
among other things, making it easier for a plaintiff to
demonstrate her disability. See Cochran v. Holder, 436 F.App’x
227, 231 (4th Cir. 2011). In light of the clear language in the
ADA’s amendments that they should become effective on January 1,
2009, the Fourth Circuit held the ADA’s amendments do not apply
retroactively.
Id. at 232.
Here, the parties agree that the
alleged discriminatory acts occurred prior to January 1, 2009.
Thus, the ADA as it read before this date and the case law
interpreting that version of the ADA govern the instant dispute.
8
In the complaint, Dr. Carrier appears to rely on
subsection (C) as well. (ECF No. 2 ¶ 52). In response to VCA’s
motion for summary judgment, which specifically challenged the
applicability of subsection (C) (ECF No. 51-1, at 26-27),
however, Dr. Carrier offered no rebuttal. Accordingly, she has
abandoned this basis for finding that she is disabled.
See
12
Dr.
Carrier’s
epilepsy
constitutes
a
physical
or
mental
impairment, it argues that Dr. Carrier “cannot demonstrate that
her
medical
condition
of
seizures/convulsions
limited a major life activity.”
Dr.
seeing,
Carrier
and
(ECF No. 51-1, at 26).
identifies
hearing”
as
the
substantially
“caring
major
for
life
herself,
walking,
activities
that
(See ECF No. 54, at 12).9
limited by her condition.
are
To that
end, Dr. Carrier’s primary evidence in support of her contention
that her epilepsy substantially limits those activities is her
affidavit.
This evidence, however, is insufficient to meet her
burden on summary judgment for at least two reasons.
First, as
VCA
that
observes
(ECF
No.
57,
at
8),
to
the
extent
Dr.
Carrier’s affidavit can be construed to show that any aspect of
her life significantly changed, it cannot be credited.
VCA
points
her
out
that
Dr.
Carrier
previously
testified
in
deposition that “[i]n relation to [her] job, [her] life[,] . . .
[s]he really didn’t do anything differently” as a result of her
epilepsy.
of
fact
(ECF No. 57, at 10).
is
created
by
an
Where, as here, the only issue
affiant
contradicting
her
prior
Ferdinand-Davenport v. Children’s Guild, 742 F.Supp.2d 772, 777
(D.Md. 2010); Mentch v. E. Sav. Bank, FSB, 949 F.Supp. 1236,
1246-47 (D.Md. 1997).
9
VCA does not contest the categorization of these
activities as “major life activities.”
Indeed, under the
relevant regulations, they are all “major life activities.” 29
C.F.R. § 1630.2(i).
13
deposition
testimony,
the
district
court
conflicting statements in the affidavit.
may
disregard
See Rohrbough v. Wyeth
Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990).10
most
of
Dr.
Carrier’s
affidavit
the
cannot
be
Consequently,
considered
when
determining whether Dr. Carrier is disabled under the ADA.
Second, even if Dr. Carrier’s affidavit were considered, it
falls short of creating a triable issue of fact with respect to
whether
“The
Dr.
Carrier
determination
meets
of
the
whether
definition
of
being
a
is
disabled
person
disabled.
is
an
individualized inquiry, particular to the facts of each case.”
EEOC v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001) (citing
Sutton v. United Air Lines, 527 U.S. 471, 483 (1999)).11
The
“crucial question” in cases like this is whether Dr. Carrier’s
epilepsy
“substantially
activities.”
See id.
limited
one
of
her
major
life
“[I]n 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.”
Pollard v. High’s of Balt., Inc., 281 F.3d
10
Although Dr. Carrier’s affidavit is undated, Dr. Carrier
does not refute VCA’s contention that she executed it after her
deposition.
11
“A court may resolve this issue as a matter of law.”
Heiko v. Colombo Sav. Bank, FSB, 434 F.3d 249, 254 (4th Cir.
2006).
14
462, 467-68 (4th Cir. 2002) (quoting 29 C.F.R. § 1630.2(j)(2)
(2002)).
“[T]he
phrase
‘substantially
‘considerable’ or ‘to a large degree.’
thus
clearly
precludes
impairments
limits’
suggests
The word ‘substantial’
that
interfere
in
only
a
minor way with the performance of manual tasks from qualifying
as disabilities.”
Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184, 196 (2002) (internal citations omitted).
Moreover,
“if a person is taking measures to correct for, or mitigate, a
physical or mental impairment, the effects of those measures —
both positive and negative — must be taken into account when
judging
major
whether
life
that
activity
person
and
is
thus
‘substantially
‘disabled’
limited’
under
the
in
a
[ADA].”
Sutton, 527 U.S. at 482.
In Sara Lee Corp., the Fourth Circuit confronted a similar
scenario in which a plaintiff with epilepsy sued her employer
under
the
ADA
there
argued
for
that
disability
she
was
discrimination.
substantially
different major life activities:
for herself.
The
limited
plaintiff
in
three
sleeping, thinking, and caring
In response to the employer’s motion for summary
judgment, the plaintiff adduced evidence that she suffered from
“complex
partial
phenomena.’”
not
seizure
disorder,
.
.
Sara Lee Corp., 237 F.3d at 351.
experience
so-called
“grand
mal
.
a
Although she did
seizures,”
“experienced seizures about once or twice a week.”
15
‘life-long
she
Id.
still
Her
daytime seizures12 – four or five of which happened during work
itself – normally lasted a couple of minutes:
During these seizures, [the plaintiff] began
shaking,
her
face
took
on
a
blank
expression, and she became unaware of and
unresponsive to her surroundings. After the
seizure ended, [the plaintiff] was able to
return to whatever work she had been
performing
before
the
episode
started.
These seizures also sometimes caused [the
plaintiff] to suffer memory loss.
Id.
Despite evidence of these manifestations of the plaintiff’s
epilepsy, however, the Fourth Circuit held that the plaintiff
failed to meet her burden on summary judgment to demonstrate
that she met the ADA’s requirements for having a disability.
particular,
the
Fourth
significant
restriction
Circuit
in
a
held
major
that
life
“a
In
plaintiff’s
activity
must
be
compared to the condition, manner, or duration under which the
average person in the general population can perform that same
major life activity.”
omitted).
Circuit
Id.
at 352 (internal quotation marks
In light of this restrictive standard, the Fourth
explained,
the
plaintiff’s
epilepsy
did
not
substantially limit her ability to sleep, think, or care for
herself.
Indeed, the plaintiff had testified that “the primary
effects of her epilepsy were only that sometimes she would wake
12
The plaintiff also experienced nocturnal seizures, which
were accompanied by “shaking, kicking, salivating, and, on at
least one occasion, bedwetting.” Id.
16
up with a bruise on her body, that she would sporadically ‘zone
out’ during the day, and that on one occasion she wet her bed.”
Id. at 353.
Here, Dr. Carrier’s form of epilepsy is roughly equivalent
to that of the plaintiff in Sara Lee Corp., if not less severe.
Like
that
“partial
plaintiff,
seizures”
Carrier’s
as
seizures,
Dr.
Carrier
opposed
when
to
they
has
been
“grand
occur,
mal
last
diagnosed
with
seizures”;
roughly
the
Dr.
same
amount of time; and Dr. Carrier’s post-seizure symptoms are mild
enough
that
significant
she
is
problems.
able
to
That
return
Dr.
to
Carrier
work
without
asserts
a
any
slightly
different set of major life activities – caring for herself,
walking,
seeing,
and
hearing
—
as
being
affected
is
of
no
moment.
Other than relying on the fact itself that she suffers
seizures, Dr. Carrier has offered no evidence to suggest that
her epilepsy imposes any restrictions on these activities that
are greater than those of “the average person in the general
population” performing the same activities.13
13
The Fourth Circuit rejected the notion that the mere fact
that Dr. Carrier suffers seizures would be enough to defeat
summary judgment on this basis:
To hold that a person is disabled whenever
that individual suffers from an occasional
manifestation of an illness would expand the
contours of the ADA beyond all bounds. An
intermittent manifestation of a disease must
17
Dr. Carrier urges that her condition is more comparable to
that of the plaintiff in EEOC v. Rite Aid Corp., 750 F.Supp.2d
564 (D.Md. 2010), than that of the plaintiff in Sara Lee Corp.,
but she has offered no evidence to persuade the court to reach
this conclusion.
more
severe
In Rite Aid Corp., Judge Blake observed:
nature
of
[the
plaintiff’s]
distinguishes this case from Sara Lee.
Sara Lee
epilepsy
.
“The
.
.
While the plaintiff in
suffered from only the less severe complex partial
seizures, Mr. Fultz [the plaintiff] routinely experiences grand
mal
seizures
and
has
address his condition.”
undergone
brain
surgery
Id. at 569 n.1.
to
attempt
In that case, the
plaintiff
submitted evidence showing that Mr. Fultz’s
epilepsy prevents him from bathing on his
own, and that during a seizure he cannot
stand, loses control over body movements,
cannot speak, may lose control over his
bladder, and is unable to remember the
event. Mr. Fultz’s seizures, especially his
grand mal seizures, can last over 20 to 25
minutes, followed by five to ten minutes of
confusion during which he cannot communicate
with others. After having a grand mal
seizure,
Mr.
Fultz
also
experiences
a
postictal period lasting up to 10 to 15
be judged the same way as all other
potential
disabilities.
The
statute
is
explicit—to be disabled under the ADA, a
person must have a substantial limitation on
a major life activity.
Sara Lee Corp., 237 F.3d at 352.
18
to
hours during which he feels “muscle fatigue,
tiredness, and completely worn out.”
Id.
at
569-70
(internal
citations
omitted).
None
of
Dr.
Carrier’s evidence comes close to this showing.
Dr. Carrier does assert that her affidavit shows that the
side effects of her medication substantially limit her ability
to perform the major life activities of caring for herself,
(ECF No. 54, at 11-12).14
walking, seeing, and hearing.
although
the
effects
of
Supreme
Court
medication
has
must
held
be
that
the
included
as
Still,
negative
part
of
side
the
individualized inquiry of whether a plaintiff is disabled, see
Sutton,
527
regarding
U.S.
the
side
at
482,
effects
Dr.
of
Carrier’s
Dilantin
broad
are
not
statements
sufficiently
probative to conclude that they substantially limited her in any
major
life
activity.15
At
best,
occasional effect on her walking.
they
indicate
a
vague,
But courts have held that
evidence of generalized difficulty with walking is inadequate to
demonstrate a substantial limitation for purposes of the ADA.
14
Dr. Carrier also cites a portion of Dr. Yan’s deposition
testimony in which he describes the side effects of Dilantin.
(ECF No. 54, at 12).
Dr. Yan’s testimony regarding Dilantin
does not differ significantly from Dr. Carrier’s affidavit.
15
Dr. Carrier’s first two medications have no bearing on
this analysis. She concedes that there were no side effects to
Lamicatal and that the initial side effects to Trileptal
eventually subsided.
In any event, she states that she no
longer takes either drug. Thus, the only possible side effects
that she still experiences are those caused by Dilantin.
19
See Turner v. Saloon, Ltd., 595 F.3d 679, 689 (7th Cir. 2010)
(“We have held that walking with difficulty is not a significant
restriction on walking.”); see also Black v. Roadway Express,
Inc., 297 F.3d 445, (6th Cir. 2002) (“[M]oderate difficulty or
pain experienced while walking does not rise to the level of a
disability.”).
However
specific
the
showing
must
be
to
demonstrate a substantial limitation on the ability to walk, Dr.
Carrier has not met that threshold here.
The conclusion that Dr. Carrier cannot establish a prima
facie case of discrimination under the ADA because she is not
disabled
is
bolstered
by
the
uncontroverted
fact
that
Dr.
Carrier did not suffer another seizure between May 2008 and her
termination in December 2008.
that
Dr.
Carrier’s
seizures
Thus, even if it could be said
were
severe
enough
to
meet
the
Supreme Court’s rigorous standard for qualifying as a disability
under
the
ADA,
Dr.
Carrier
cannot
also
say
that
she
was
substantially limited thereby at the time of the alleged adverse
actions.
See Kelly v. Sasol N. Am., Inc., No. CCB-05-1171, 2006
WL 3247136, at *4 (D.Md. Nov. 2, 2006) (analyzing whether the
plaintiff was substantially limited in any major life activity
“at the time [the defendant] allegedly denied him a reasonable
accommodation”);
Taliaferro
F.Supp.2d
490-91
483,
v.
Assocs.
Corp.
of
N.
1999)
(same
as
to
(D.S.C.
20
Am.,
112
wrongful
discharge).
Accordingly, VCA’s motion must be granted as to Dr.
Carrier’s federal claims.
B.
Count Two:
Article 49B
Dr. Carrier also bases her state law statutory cause of
action on two theories:
that VCA failed to provide her with
reasonable accommodation and that VCA wrongfully terminated her
because she was disabled.
(ECF No. 2 ¶¶ 61-62).
Whereas Dr.
Carrier’s federal claims failed at the first step, however, Dr.
Carrier’s state claims encounter no such hurdle; Article 49B
explicitly includes epilepsy in its definition of disability.
Md. Code Ann. Art. 49B, § 15(g).
No. 51-1, at 20).
VCA concedes as much.
(ECF
VCA therefore advances a variety of other
reasons for granting summary judgment in its favor.
1.
Failure To Accommodate
VCA argues that Dr. Carrier’s failure to accommodate claim
cannot proceed because Dr. Carrier “cannot establish that VCA
violated
any
duty
of
(ECF No. 51-1, at 35).
reasonable
accommodation
towards
her.”
Among other reasons, VCA argues that it
“never ‘refused’ to provide a reasonable accommodation.”
(Id.).
In response, Dr. Carrier contends that the act of VCA firing her
was itself a “refusal” to accommodate.
21
(See ECF No. 54, at 20).
The
evidence,
however,
does
not
bear
out
Dr.
49B
d[id]
Carrier’s
position.16
As
impose
originally
upon
enacted,
employers
“Article
an
obligation
of
not
expressly
‘reasonable
accommodation’ for those individuals under physical or mental
handicap.”
Md.App.
however,
Md. Comm’n on Human Relations v. Mayor of Balt., 86
167,
173
“the
(1991).
Court
According
of
Special
to
the
Appeals
Fourth
of
Maryland
interpreted the article to contain such a requirement.”
Marietta
Corp.,
Aero
&
Naval
Sys.
v.
Md.
Circuit,
Comm’n
has
Martinon
Human
Relations, 38 F.3d 1392, 1398 (4th Cir. 1994) (citing Mayor of
Balt., 86 Md.App. at 178).17
For guidance in applying this
requirement, the court may look to federal law interpreting the
Rehabilitation Act of 1973.
See Mayor of Balt., 86 Md.App. at
173 (holding that cases interpreting the Rehabilitation Act may
be used to interpret Article 49B’s “reasonable accommodation”
requirement
because
the
guidelines
adopted
by
the
Maryland
Commission on Human Relations that implement the state statute
16
Because VCA’s motion will be granted on this ground, the
other grounds that VCA advances need not be addressed.
17
Accordingly, when Article 49B was recodified in 2009, the
pertinent section of the statute was further amended to make
explicit the Court of Special Appeals’ interpretation. See Md.
Code Ann., State Gov’t § 20-606(a)(4) (“An employer may not . .
. fail or refuse to make a reasonable accommodation for the
known disability of an otherwise qualified employee.”).
22
were
modeled
after
federal statute).18
the
federal
regulations
implementing
the
Under federal law, to establish a prima
facie case for failure to accommodate, Dr. Carrier must show:
“that [s]he was an individual who had a disability within the
meaning of the statute; (2) that the employer had notice of
[her] disability; (3) that with reasonable accommodation [s]he
could perform the essential functions of the position . . . ;
and
(4)
that
accommodations.”
the
[employer]
refused
to
make
such
Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th
Cir. 2001).
In this case, regarding the fourth prong of the prima facie
test, Dr. Carrier actually acknowledges that VCA “established a
precedent of accommodating Plaintiff’s disability.”
54, at 20).
(ECF No.
Indeed, Dr. Carrier presents no evidence that, from
May 2008 through December 2008, VCA refused to accommodate her
18
Federal law interpreting the ADA may also provide
insight. See Baird ex rel. Baird v. Rose, 192 F.3d 462, 468 (4th
Cir. 1999) (“The ADA and Rehabilitation Act generally are
construed to impose the same requirements due to the similarity
of the language of the two acts.”).
A court in this district
has cautioned, however, that “there is no evidence that Maryland
intended to enact Art. 49B as a state ‘counterpart’ to the
federal Rehabilitation Act or the Americans with Disability
Act.” Kohler v. Shenasky, 914 F.Supp. 1206, 1211 (D.Md. 1995).
Because the parties do not identify any authority, nor is the
court aware of any, that suggests that the ADA or the
Rehabilitation Act would not be instructive regarding VCA’s duty
to provide reasonable accommodation to Dr. Carrier, the court
will look to federal law as needed to resolve this claim.
23
condition.19
In fact, the record is replete with evidence that
VCA affirmatively encouraged Dr. Carrier to set her schedule so
as to maximize her ability to rest.
that,
after
termination
more
itself
than
six
months
constituted
accommodating her condition.
a
Dr. Carrier only argues
of
accommodation,
“refusal”
to
her
continue
(Id.).
Even construing this “evidence” in the light most favorable
to her, however, there is no dispute of material fact requiring
a trial.
In the Employee Separation Report prepared by VCA,
which details the reasons for Dr. Carrier’s termination, there
is no reference whatsoever to Dr. Carrier’s schedule as being a
reason
for
her
discharge.
(See
generally
ECF
No.
51-5).20
Without more, it cannot be said that Dr. Carrier has met her
burden regarding this issue in response to VCA’s motion for
19
For purposes of this analysis, the court assumes –
without deciding – that Dr. Luban’s note to VCA constitutes
adequate notice of Dr. Carrier’s disability and that, per that
note, reasonable accommodation consisted of VCA not requiring
Dr. Carrier to work back-to-back overnight shifts.
Given the
record, however, this conclusion is far from clear. To be sure,
Dr. Luban affirmatively ended his treatment of Dr. Carrier soon
after sending that note and informed VCA of that development.
Moreover, any uncertainty over whether Dr. Luban’s note should
be heeded was likely clarified by Dr. Yan’s subsequent
certification of Dr. Carrier’s good health and controlled
epilepsy.
Regardless, for the reasons stated above, summary
judgment is warranted in favor of VCA as to this claim.
20
If anything, the Employee Separation Report reinforces
VCA’s willingness to accommodate Dr. Carrier’s illness.
(See
ECF No. 51-5 at 37 (citing Dr. Carrier’s “disregard for her own
health issues” as a reason for termination)).
24
summary
favor
judgment.
of
VCA
Accordingly,
as
to
Dr.
judgment
Carrier’s
will
Article
be
entered
in
49B
failure
to
accommodate claim.
2.
Wrongful Termination
Regarding Dr. Carrier’s wrongful termination claim under
Article 49B, VCA argues that Dr. Carrier cannot demonstrate that
“she was satisfactorily performing her job duties” or that “the
decision to terminate her employment was made because of her
alleged disability.”
(See ECF No. 51-1, at 36-37).
Dr. Carrier
counters with evidence that as early as October 2008, VCA had
contemplated firing her.
In
Maryland,
“an
(ECF No. 54, at 20-21).
employer
may
not
discharge
.
.
.
any
individual . . . because of the individual’s . . . disability
unrelated in nature and extent so as to reasonably preclude the
performance
16(a).
of
the
employment.”
Md.
Code
Ann.
Art.
49B,
§
In the absence of direct evidence that Dr. Carrier’s
disability caused her firing,21 Dr. Carrier may still proceed
under the proof scheme developed in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
See Brandon v. Molesworth, 104
Md.App. 167, 187 n.18 (1995) (holding that the McDonnell Douglas
burden-shifting
discrimination
paradigm
actions
in
applies
Maryland),
21
to
rev’d
Neither
party
argues
that
discrimination exists in this case.
25
statutory
in
direct
part
employment
on
other
evidence
of
grounds, 341 Md. 621 (1995).
Under this scheme, a plaintiff
must establish a prima facie case of discrimination.
plaintiff
meets
legitimate,
this
burden,
the
nondiscriminatory
plaintiff’s
employment.
To
employer
reason
for
survive
must
If the
articulate
terminating
summary
a
the
judgment,
the
plaintiff may then show that the proffered reason was pretext.
As suggested by federal law, to establish a prima facie
case for wrongful termination, Dr. Carrier must show “that (1)
[s]he
is
within
discharged;
performing
(3)
at
the
at
a
.
.
the
level
protected
time
that
expectations;
and
(4)
circumstances
that
raise
discrimination.”
.
(2)
[s]he
was
was
of
[her]
discharge,
[s]he
met
[her]
employer’s
legitimate
[her]
a
class;
discharge
reasonable
occurred
inference
of
under
unlawful
Haulbrook v. Michelin N. Am., 252 F.3d 696,
702 (4th Cir. 2001).
As noted above, VCA challenges the third
and fourth prongs of Dr. Carrier’s prima facie case.
Regarding
the
third
prong,
Dr.
Carrier
has
proffered
evidence in the form of a performance evaluation from September
2008, in which Dr. Carrier earned ratings ranging mostly in the
“Very Good” to “Excellent” categories.
22
(ECF No. 54-14, at 2).22
Although Dr. Carrier does not identify her September 2008
performance evaluation as evidence to support her state law
claim for wrongful discharge, she did identify it in support of
her analogous federal law claim. It is not unreasonable for the
court to look to that evidence here. See Fed.R.Civ.P. 56(c)(3)
26
Furthermore, Dr. Carrier has provided testimony of Dr. Sanders,
who conducted her evaluation, which suggests that Dr. Carrier’s
performance at work was “very good” at least through November
2008.
and
(ECF No. 54-4, at 98-99).
evidence
behavior
to
that
VCA’s
Dr.
Carrier
professional
Thus, despite VCA’s argument
may
not
have
standards,
conformed
Dr.
her
Carrier
has
advanced enough evidence to create a triable issue of fact on
this third prong of the prima facie case.23
Regarding the fourth prong, Dr. Carrier points to an email
chain between Dr. Sanders and William Fenner.
ECF No. 54-15).
(See generally
In one of the emails, Dr. Sanders describes a
second-year resident suffering from “recent onset seizures and
(“The court need consider only the cited materials, but it may
consider other materials in the record.”).
In general, where
the parties’ positions regarding the federal and state law
claims overlap, the court will consider the parties’ evidence
adduced in support of the federal claim with respect to the
state claim as well.
23
At least in the federal context, the burden of
establishing a prima facie case of discrimination “is not
onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981).
For example, an employee can make the minimal
showing
that
she
was
meeting
her
employer’s
legitimate
expectations where she can demonstrate that she was generally
satisfying
her
employer’s
relevant,
objective
performance
standards at the time of her termination.
See Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 766 & n.1 (4th Cir. 2003)
(holding that the district court erred in concluding that the
employee had not “adduced sufficient evidence to meet her burden
of demonstrating that she was performing satisfactorily at the
time of [certain] adverse employment actions” where, among other
things, she was recently informed by management that her work
was “satisfactory”).
27
the
medical
issues
surrounding
that
problem,”
among
other
problems, who several VCA staff members “would like to see . . .
go for the good of the ‘whole.’”
(Id. at 3).
Dr. Carrier
asserts that this email is discussing her (see ECF No. 54, at
20-21), and VCA does not dispute this implication.
When viewed
in conjunction with the fact that Dr. Sanders was one of the
supervisors
who
collectively
made
the
final
decision
to
terminate Dr. Carrier’s employment (see ECF No. 51-5, at 3 ¶
14),
this
email
sufficiently
raises
an
inference
of
illegal
discrimination.
Because Dr. Carrier can adduce evidence of a prima facie
case
of
triable
disability
case),
legitimate,
Carrier.
discrimination
the
burden
(or,
at
to
VCA
reason
for
shifts
non-discriminatory
least,
to
present
a
articulate
a
terminating
Dr.
VCA has done so; it has set forth evidence that Dr.
Carrier was terminated for “erratic, unprofessional” behavior.
(Id., Ex. F, at 34).
Indeed, the Employee Separation Report
cites several specific instances of such behavior on the part of
Dr.
Carrier
unprofessional
as
reasons
behavior
for
her
is
discharge.
certainly
A
a
history
of
legitimate,
nondiscriminatory reason for releasing someone from employment.
See Runnebaum v. NationsBank of Md., NA, 123 F.3d 156, 175 n.12
(4th Cir. 1997), overruled on other grounds by Bragdon v. Abbott,
524 U.S. 624 (1998).
28
It
evidence
is
therefore
that
incumbent
VCA’s
articulated
Carrier was pretextual.
on
Dr.
Carrier
reason
for
to
identify
terminating
Dr.
Here, although not entirely clear, Dr.
Carrier’s position appears to be that VCA made up an excuse to
terminate her based on her behavior when on medication.
ECF No. 54, at 18-21).
(See
To that end, Dr. Carrier points to the
same email chain between Dr. Sanders and Mr. Fenner, which shows
that Dr. Sanders – who, again, was one of the decisionmakers
behind Dr. Carrier’s termination – was well aware that the side
effects
from
intoxication.
troublesome
Report.
Dr.
Carrier’s
(See
when
ECF
taken
medication
No.
54-15,
together
with
could
at
4).24
the
be
mistaken
This
Employee
fact
for
is
Separation
The Employee Separation Report explains that one of the
reasons for discharging Dr. Carrier was her behavior on December
24
Dr. Carrier’s argument that VCA’s reason for firing her
was pretextual turns on whether the negative side effects of Dr.
Carrier’s epilepsy medicine should be considered a part of her
disability under state law.
Neither party points to any
authority addressing this precise issue.
The Court of Appeals
of Maryland has, however, interpreted state and county antidisability discrimination statutes broadly, particularly with
respect to who falls within the protected class of having a
disability. See, e.g., Meade v. Shangri-La P’ship, 424 Md. 476,
486-91 (2012). In light of the Supreme Court’s ruling in Sutton
as well as recent federal guidelines that make clear that “nonameliorative effects of mitigating measures, such as negative
side effects of medication . . . may be considered” when
determining whether an individual is disabled, see 29 C.F.R. §
1630.2(j)(4)(ii) (2012), it is highly likely that Maryland
courts would likewise consider the negative side effects of
medication as part of a disability.
29
8, 2008, where she was “incoherent, ataxic, slurring words, and
generally looked in bad shape.”
36).
(See ECF No. 51-5, Ex. F, at
The Employee Separation Report does not, however, go any
further and state that Dr. Carrier was actually intoxicated.
Critically, in the email chain, Dr. Sanders admits she does
not
have
any
attributable
such
as
proof
to
that
anything
alcoholism
or
Dr.
Carrier’s
other
drug
than
her
dependency,
legitimate grounds for firing her.
erratic
behavior
epilepsy
which
(See id.).
was
medication,
may
have
been
In other words,
Dr. Sanders knew that Dr. Carrier’s behavior could have been
caused by the epilepsy medication, but she failed to investigate
that
possibility.
proffered
Thus,
“legitimate”
it
is
reasons
plausible
for
that
termination
one
—
of
that
VCA’s
Dr.
Carrier exhibited erratic behavior — was actually pretext for
terminating her on the basis of her disability.
Cf. Bechold v.
IGW Sys., Inc., 817 F.2d 1282, 1285 (7th Cir. 1987) (holding, in
the context of the Age Discrimination in Employment Act, that a
“lack of inquiry” into a proffered reason for termination “may
show that the [reason] was incredible, and merely a pretext for
discrimination”); O’Neill v. Henderson Cnty. Hosp. Corp., No.
Civ. 1:04CV68, 2005 WL 3797394, at *4 (W.D.N.C. June 21, 2005)
(holding, in the context of the Family Medical Leave Act, that
evidence that a defendant “did not investigate other possible
30
explanations”
for
the
reason
given
for
termination
could
be
probative of pretext).
In sum, the evidence that Dr. Carrier has presented leads
to
the
claim
conclusion
must
that
survive
her
summary
Article
49B
judgment.
wrongful
VCA’s
termination
motion
will
be
denied as to this claim.
C.
Count Three:
County Claims
Although Dr. Carrier initially pursued a cause of action
under the Montgomery County Code based on the same theories of
failure to accommodate and wrongful termination, she failed to
respond
in
any
way
to
VCA’s
motion
for
summary
judgment
regarding this claim.
If a party moves for summary judgment
concerning
which
ultimate
address
claims
burden
for
of
specifically
proof
the
and
the
the
movant’s
non-moving
party
bears
non-moving
party
fails
arguments
regarding
the
to
those
claims, then the court may consider those claims abandoned and
grant summary judgment.
at 777;
See Ferdinand-Davenport, 742 F.Supp.2d
Mentch, 949 F.Supp. at 1246-47.
Accordingly, Count
Three will be deemed abandoned, and summary judgment will be
granted in VCA’s favor as to these claims.
31
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Defendant VCA Animal Hospitals, Inc., will be granted
in part and denied in part.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
32
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