CATHEY v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER

Filing 30

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 3/12/2015; that Baptist's motion for summary judgment (Doc. 17 ) be GRANTED in part and DENIED in part, and that judgment be GRANTED for Baptist as a matter of law on Cathey's claim that she was wrongfully (constructively) discharged on account of her disability, which is DISMISSED WITH PREJUDICE, and that Baptist's motion otherwise be DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TAMMIE CATHEY,
Plaintiff,
v.
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER,
Defendant.

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)
)
)
)
)
)
)
)
)

1:13cv543

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is the motion for summary judgment filed by
Defendant

Wake

Forest

University

Baptist

Medical

Center

(“Baptist”) on Plaintiff Tammie Cathey’s disability discrimination
claims.

(Doc. 17.)

For the reasons set forth below, the motion

will be granted in part and denied in part.
I.

BACKGROUND
The undisputed facts, viewed in the light most favorable to

Cathey as the non-moving party, are as follows:
Cathey worked for Baptist from July 1996 to May 13, 2011.
(Doc. 22-5 (Cathey Decl.) ¶ 2.)

When Cathey began working there,

the number of Baptist’s Spanish-speaking patients was growing.
(Doc. 19-2 (Smith Dep.) at 23.)

During this time, Baptist relied

on its employees, including Cathey, who happened to speak Spanish
to help interpret.

(Id.)

The need for interpreters eventually

became so great that in 1998 Baptist transferred Cathey to the

service

excellence

interpreter.
the

as

Baptist’s

(Id. at 25–26; Cathey Decl. ¶ 3.)

department

interpreters.

department

has

grown

and

now

(Smith Dep. at 27–28.)

employs

first,

full-time

Since that time,
eleven

Spanish

The majority of the time

the interpreters are at work, they provide “live interpreting
services”; by contrast, the time interpreters spend interpreting
telephone calls is “very minimal,” less than two percent of their
time.

(Dorton Dep. at 29–30, Doc. 22-1; Cathey Dep. at 138, Doc.

22-4.) 1
One of the interpreters Baptist added was Linda Dorton.
Eventually, Dorton, who speaks Spanish as a first language, was
promoted to manager of language services and now supervises the
interpreters.
32.)

(Dorton Dep. at 16–20, Doc. 19-4; Smith Dep. at 30–

At the time of the incident at issue, the interpreters

reported to Dorton, who reported to Terri Childress, who reported
to Amanda Smith.

(Dorton Dep. at 20–22, Doc. 19-4.)

Cathey suffers from hearing loss.
from

2007

to

2009,

Cathey

told

In several conversations

Dorton

that

she

was

having

difficulty hearing patients face-to-face and callers over the
phone, and she had particular difficulty using a type of phone
found in the human resources department (regardless of the language

1

The parties have separately submitted various portions of the
transcripts from Cathey’s and Linda Dorton’s depositions.
The court
will reference the docket entry number to show the proper source.

2

of communication).

(Cathey Dep. at 97, Doc. 22-4.)

Dorton

provided her a hearing device called a “Pocket Talker” to amplify
sounds, but it did not help.

(Cathey Dep. at 111, Doc. 19-1;

Dorton Dep. at 82–83, Doc. 19-4.)

Dorton also suggested that

Cathey use a sound amplifier on her phone, but she declined because
the volume button for the phone at her desk was sufficient so long
as

there

was

conversation.

not

significant

background

noise

or

nearby

(Cathey Dep. at 112, Doc. 19-1.)

Cathey then sought hearing aids.

In 2009, she made an

informal inquiry with Baptist’s human resources department about
a possible insurance waiver to help cover the cost, but was told
that would not be possible.

(Cathey Dep. at 99, 102, Doc. 22-4.)

In 2010, she made a formal request to Dana Hughes in human
resources

for

hearing

aids

to

assist

her.

(Id.

at

102.)

Ultimately, Baptist provided Cathey with hearing aids; the cost
was $5,100.00, and Cathey was required to pay ten percent.
at 106–07.)
aids at work.

(Id.

From that point on, Cathey always used the hearing
(Id. at 108.)

Meanwhile, in 2009, Dorton began advocating that Baptist
employ a language proficiency test for its interpreters.
Dep. at 43–46, Doc. 19-4.)

(Dorton

Cathey herself had, over the years,

advocated for a standard to test the skills of medical interpreters
and translators.

(Cathey Dep. at 60, Doc. 22-4.)

interpreters had been evaluated “face-to-face.”
3

Previously, the
(Id. at 145–46.)

To

set

new

interpreters,

standards
Dorton

and

methods

organized

resources employees.

and

of

led

evaluation
a

committee

for
of

(Dorton Dep. at 47–51, Doc. 19-4.)

the
human

In the

language interpretation and translation industry, the American
Council on the Teaching of Foreign Languages (“ACTFL”) creates
guideline

levels

of

language

proficiency.

(Id.

at

42.)

Separately, there are businesses that provide language examination
services using the proficiency guidelines set by ACTFL.
43.)

(Id. at

Dorton and the rest of the committee hired one of those

businesses, Language Testing International (“LTI”), to examine the
proficiency of Baptist’s interpreters and translators.

(Id. at

43, 47.)
Once

Baptist

hired

LTI,

Baptist’s

interpreters

and

translators had to contact the company to set up a time for the
examination.
her

(Dorton Dep. at 52–53, Doc. 22-1.)

interpreters,

like

Cathey,

examination with an LTI employee.

to

take

Dorton required

a

telephone-based

(Id. at 54.)

Dorton does not

know if LTI provides a live, in-person evaluation as an alternative
to the telephone assessment, because she never asked. (Id.) After
the oral exam, LTI would issue a certificate stating the employee’s
proficiency level. 2

(Dorton Dep. at 57, Doc. 19-4.)

2 Later, after Cathey’s departure, Baptist stopped using LTI, having
found it inadequate at assessing the proficiency levels of its employees.
(Dorton Dep. at 57–58, Doc. 22-1.)

4

On

December

17,

2009,

Cathey

took

one

of

these

oral

examinations over the telephone and received a proficiency level
of “intermediate high.” 3 (Cathey Dep. at 87–88, Doc. 19-1.) Cathey
had trouble using the phone during the exam because of her hearing
problems but does not recall whether she told Dorton about such
problems.

(Id. at 95–98.)

At the time Cathey took this exam,

Dorton and her committee had not yet determined what proficiency
levels they would require for the interpreters.

(Id. at 88; Doc.

19-7 (Dorton Aff.) ¶ 5.)
By

2010,

independently

of

however,
ACTFL

or

Dorton’s
LTI

—

committee
that

it

determined

would

require

—
its

interpreters to achieve a proficiency level of “advanced high” by
January 26, 2011.
¶ 6.)

(Dorton Dep. at 65–66, Doc. 19-4; Dorton Aff.

On Cathey’s July 26, 2010 performance review, Dorton told

Cathey that she would need to raise her proficiency level to
“advanced high” by January 2011, and she recommended that Cathey
take Spanish language courses.

(Dorton Aff. ¶ 6.)

Two other

Baptist interpreters, Debbie Salazar and Melissa Vaquera, also
scored

below

“advanced

proficiency levels.

high”

and

were

told

to

raise

their

(Id.)

3

The ACTFL scale includes the following levels of proficiency: novice
low, novice mid, novice high, intermediate low, intermediate mid,
intermediate high, advanced low, advanced mid, advanced high, and
superior. (Dorton Aff. ¶ 4.)

5

Cathey

took

her

second

telephonic

(Cathey Dep. at 21–22, Doc. 22-4.)
had technical problems.
time

she

tried

conversation.

to

exam

in

March

2011. 4

The phone provided for her use

The audio sounded “staticky,” and every

adjust

the

(Id. at 22–23.)

volume,

it

would

mute

the

In addition, the telephone did not

accommodate her hearing aid; she could not get the telephone close
enough to her ear to use the phone, so she had to remove her
hearing aid during the examination.

(Id. at 24–25.)

The phone

she used did not comply with the FCC’s requirements for someone
with a hearing disability.

(Id. at 25–26; Doc. 22-4 at 45–46.)

When Cathey left the examination, she told one of the receptionists
outside the testing room that the phone did not work properly and
did not accommodate her hearing aid.

(Cathey Dep. at 123–24, Doc.

22-4.)
Cathey

ultimately

received

a

proficiency

score

of

“intermediate high,” which was less than the target level of
“advanced high.”

(Dorton Aff. ¶ 8.)

However, Cathey believes she

would have met her proficiency goal had the test been given through
any medium besides the telephone.
22-4.)

(Cathey Dep. at 62, 153, Doc.

Shortly after taking the test, on March 11, 2011, Cathey

participated in a conference call with Dorton and Childress, who
advised Cathey that she had only scored an “intermediate high” on

4

It is unclear why Baptist did not require Cathey to retake the
proficiency test by January 2011, as it had initially told her.

6

her exam.

(Id. at 126–27.)

They told her that, since she had

scored below “advanced high,” she would be working as a dispatcher
for the time being.
1.)

(Id. at 127–28; Dorton Dep. at 104, Doc. 22-

They also told her they would get back to her as soon as they

had a plan for her, but they did not eliminate the possibility
that she may return to interpreting.

(Cathey Decl. ¶ 4; Dorton

Dep. at 104, Doc. 22-1.)
A few days later, Cathey told Dorton about the problems she
had encountered with the phone.
22-4.)

(Cathey Dep. at 124, 128, Doc.

Cathey asked Dorton whether there was some other way to do

the evaluation.

(Id. at 125.)

Dorton told her that the phone-

based examination was what had been established and would continue
(Id.) 5

to be the standard medium used.
Cathey brush up on her Spanish.

Dorton suggested that

(Cathey Dep. at 129, Doc. 19-1.)

Cathey told Dorton that she did not feel like there was any point
in taking the test again because the equipment was inadequate; she
said she needed a face-to-face evaluation like the one Baptist had
previously been using for the interpreters.

(Id.)

In response,

Dorton said, “This is what we have in place, and this is what the
department is willing to pay for.”
her

request

to

writing

or

(Id.)

complain

5

Cathey did not reduce
about

it

to

Dorton’s

Dorton denies this conversation took place. (Dorton Aff. ¶ 8.) But
on a motion for summary judgment, the court must draw all reasonable
inferences, including credibility, in Cathey’s favor. Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994).

7

supervisors, Smith and Childress.

(Id. at 130–32.)

When Dorton received Cathey’s results on the oral proficiency
test, she also received the results for Salazar and Vaquera.
(Dorton Dep. at 71–75, Doc. 22-1.)

Dorton learned that Salazar

and Vaquera had also failed to achieve “advanced high” proficiency,
achieving only “advanced mid.”

(Id. at 75, 78.)

In response to

learning of these results, Dorton decided to investigate lowering
the required proficiency level and determined that one language
industry organization (the National Board for Certification of
Medical Interpreters) required only “advanced mid” proficiency.
(Id. at 73–75.)

Acting upon Dorton’s request, a subset of the

committee then changed the required proficiency level to “advanced
mid.”

(Id. at 75.)

This change rendered Salazar and Vaquera’s

proficiency levels sufficient for them to continue working as
interpreters but was not low enough for Cathey.

(Id. at 74–79.)

On or around March 17, 2011, Cathey was told that she had
sixty

days

to

continue

working

as

a

dispatcher,

retake

the

telephonic proficiency test, or find another job at Baptist.
(Cathey Decl. ¶ 5.)

The details of the dispatcher position were

still

out,

being

worked

since

the

position

itself

had

not

officially been approved, and nothing was definite regarding the
dispatcher position until management got back to her. (Id.; Dorton
Dep. at 104, Doc. 22-1; Doc. 19-3 (Childress Dep.) at 47.)

Dorton

specifically told Cathey “to not interpret for the time being until
8

a resolution was achieved.”

(Dorton Dep. at 104, Doc. 22-1. 6)

During this time period, Cathey was paid at her interpreter pay
rate.

(Dorton Dep. at 90, Doc. 19-4.)

On April 28, 2011, Cathey

asked Childress if the deadline to decide could be shortened to
May 13 instead of May 20, 7 although she was continuing to look for
other jobs with Baptist and still hoping to hear back about
management’s plan for her future employment.

(Cathey Decl. ¶ 6.)

The request was granted.
On or about May 5, 2011, Smith told Cathey that her dispatcher
position had been approved by human resources, but that she would
only make $18.00 per hour in that position, which was less than
the $21.86 per hour rate of her interpreter position.
¶ 16; Cathey Decl. ¶ 7.)

(Compl.

Cathey found this demotion to be

“humiliating” and decided to quit rather than to accept it.
22-4 at 39.)

(Doc.

On May 9, 2011, Childress asked Cathey whether she

was still comfortable deciding to quit; Cathey confirmed that she
was comfortable with the decision, writing, “I am very excited
about starting [nursing] school in the fall. I’m not excited about
being ‘unemployed.’

If I had my ‘rathers’ it would be here

interpreting until I retire but GOD has me securely in HIS hand

6

During her deposition, Dorton was asked, “Did you ever tell [Cathey]
that she could no longer interpret because she did not reach intermediate
high?” She answered, “No. I — we asked her not to interpret for the
time being until a resolution was achieved.” (Dorton Dep. at 104, Doc.
22-1.)

7

The reason for this request is unclear on the record provided.

9

and will take me where HE wants me.”
Dep. at 54.)

(Doc. 19-1 at 97; Childress

On May 11, 2011, Cathey learned that the standard

had been lowered for Salazar and Vaquera; however, Cathey still
declined to retake the test at the time she quit because Dorton
had been “adamant” that the exam could only be taken over the
telephone.

(Cathey Dep. at 232, Doc. 19-1; Cathey Decl. ¶ 8.)

Cathey quit her job on May 13, 2011.
4.)

(Cathey Dep. at 17, Doc. 22-

On that day, her pay rate had not yet been decreased from the

interpreter rate to the dispatcher rate.
After
Opportunity

Cathey

quit,

Commission

she

(Id. at 137.)

approached

(“EEOC”)

discrimination against Baptist.

about

the

Equal

filing

a

Employment
charge

of

She was referred to the EEOC by

an attorney who did not handle employment discrimination work.
(Cathey Decl. ¶ 9.)

She contacted the EEOC on or about October 4,

2011, by telephone and received a questionnaire in the mail, which
she completed and returned through the mail, arriving at the EEOC
on October 17, 2011.

(Id.)

In this intake questionnaire, Cathey

did not specifically claim that Dorton had failed to make a
reasonable accommodation for her hearing disability; she did,
however, explain that she had to take the test on a phone that was
not FCC compliant for hearing disabilities.
59, Doc. 19-1; Doc. 22-4 at 45–46.)

(Cathey Dep. at 153–

Cathey went to the EEOC on

October 31, 2011, and an EEOC official completed her charge of
discrimination, which she signed.
10

(Doc. 22-4 at 38–39.)

On April

10, 2013, Cathey received a right-to-sue letter from the EEOC.
(Compl. ¶ 7.) 8
On July 8, 2013, Cathey filed a complaint in this court
against

Baptist,

alleging

violations

of

the

Americans

with

Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., by (1) failing
to reasonably accommodate her disability; (2) subjecting her to
disparate treatment because of her disability by removing her from
her position, reducing her pay, and holding her to a higher
standard

than

other

similarly

situated

interpreters;

(3)

constructively and wrongfully discharging her from employment; and
(4) engaging in items (1) and (2) intentionally and recklessly,
with knowledge of the requirements of the ADA.

(Id. ¶¶ 18, 22–

25.)
Baptist has moved for summary judgment on Cathey’s claims.
(Docs. 17, 18.)

Cathey has responded (Doc. 23), and Baptist has

replied (Doc. 24).
II.

The motion is therefore ready for disposition.

ANALYSIS
A.

Standard of Review

A court must grant a motion for summary judgment “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.”

8

Cathey’s complaint purports to attach a copy of the EEOC’s right to
sue letter and her charge of disability discrimination. (Compl. ¶¶ 6–
7.) These documents are not attached to the complaint but have been
attached to other documents in the record.

11

Fed. R. Civ. P. 56(a).

The moving party bears the burden of

establishing that no genuine dispute of material fact remains.
Where, as here, the non-moving party has the burden of proof, the
moving party is entitled to summary judgment if it demonstrates
that the non-moving party’s evidence is insufficient to establish
an essential element of her claim.
U.S. 317, 322–23, 325 (1986).

Celotex Corp. v. Catrett, 477

But summary judgment will not be

granted where the “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.

For the purposes

of this motion, the court regards Cathey’s statements as true and
draws all inferences in her favor.

Id. at 255.

But she must

establish more than the “mere existence of a scintilla of evidence”
to support her position.

Id. at 252.

If the evidence is “merely

colorable, or is not significantly probative, summary judgment may
be granted.”

Id. at 249–50.

Ultimately, summary judgment is

appropriate where the non-movant fails to offer evidence on which
the jury could reasonably find for her.
Baptist

presents

several

grounds

Id. at 252.
for

dismissing

Cathey’s

claims, which will be considered seriatim.
B.

Failure-to-Accommodate Claim
1.

Timeliness of the EEOC Charge

Baptist argues that Cathey’s failure-to-accommodate claim is
untimely because her EEOC charge was filed more than 180 days after
12

Baptist’s alleged failure to accommodate.

Maintaining that Cathey

never requested an accommodation, Baptist argues that any claim
nevertheless accrued in March 2011 when her alleged request of
Dorton was rejected.

(Doc. 18 at 10.)

timely filed her charge.

Cathey argues that she

(Doc. 23 at 9–10.)

Cathey was required to file her EEOC charge within 180 days
of Baptist’s allegedly discriminatory conduct.

See 42 U.S.C.

§ 2000e-5(e)(1) (“A charge under this section shall be filed within
one hundred and eighty days after the alleged unlawful employment
practice occurred . . . .”).

Under § 2000e-5(e)(1), a plaintiff’s

cause of action accrues when the employer tells the employee that
he or she will suffer an adverse employment action, and not when
the adverse action is set to take effect.

See Del. State Coll. v.

Ricks,

sum,

449

U.S.

discrimination

250,

258

occurred

—

(1980)
and

the

(“In

filing

the

only

alleged

limitations

periods

therefore commenced — at the time the tenure decision was made and
communicated to Ricks.

That is so even though one of the effects

of the denial of tenure — the eventual loss of a teaching position
— did not occur until later.” (footnote omitted)); Martin v. Sw.
Va.

Gas

Co.,

135

F.3d

307,

310

(4th

Cir.

1998)

(“Martin’s

discrimination cause of action accrued on June 30, 1992, when
Southwestern informed him that his discharge — though not to take
effect until September 29, 1992 — was imminent.”).
In

this

case,

Cathey

testified
13

that

she

requested

an

accommodation from Dorton in March 2011. Although Dorton allegedly
rejected Cathey’s specific, requested accommodation during that
conversation, Dorton and Childress, in another conversation, had
clearly

communicated

to

Cathey

that

they

were

consider what position she would fill at Baptist.

continuing

to

They also told

Cathey that she would be working as a dispatcher at her current
pay level until they could determine her employment future with
Baptist. 9

It was not until May 5, 2011, when Cathey was told that

her salary would be decreased in her new position as dispatcher
that it became clear her request for an accommodation had been
finally acted on by Baptist.

Taking all reasonable inferences in

Cathey’s favor, it was not until this point that she was notified
that “a resolution was achieved.”

(Dorton Dep. at 104, Doc. 22-

1.)
It was reasonable for Cathey to believe that Dorton would
take her specific request to Dorton’s supervisors (Cathey Dep. at
147–48, Doc. 22-4), and that Baptist would continue engaging in a
dialogue to find another type of accommodation.

See Faircloth v.

Goodyear Tire & Rubber Co., No. 5:13-CV-336, 2013 WL 6410233, at
*2 (E.D.N.C. Dec. 9, 2013) (holding that limitations period did
not commence until employee was reasonably on notice of denial of

9

As noted, during her deposition, Dorton was asked, “Did you ever tell
[Cathey] that she could no longer interpret because she did not reach
intermediate high?” She answered, “No. I — we asked her not to interpret
for the time being until a resolution was achieved.” (Dorton Dep. at
104, Doc. 22-1.)

14

accommodation because employee reasonably relied on employer’s
promises

to

“continue

to

work

his

situation

out”);

Chapa

v.

Floresville Indep. Sch. Dist., No. CIV.A. SA-10-CA-0945, 2012 WL
3062781, at *5 (W.D. Tex. July 26, 2012) (“Viewing the facts in
the

light

most

favorable

to

Plaintiff,

Defendant

has

not

demonstrated that prior to January 2009 Plaintiff should have
reasonably known that her requests for accommodations were going
to be denied.”); Nakis v. Potter, No. 01 CIV. 10047, 2004 WL
2903718, at *15 (S.D.N.Y. Dec. 15, 2004) (“[A] claim based on a
failure to accommodate does not accrue until that reasonable time
has expired or the employer has irrevocably refused to make the
accommodation.”).

Moreover,

reassignment

can

constitute

a

reasonable accommodation, 42 U.S.C. § 12111(9)(B); and employers
need only make any reasonable accommodation and not the employee’s
proposed accommodation, Ansonia Bd. of Educ. v. Philbrook, 479
U.S. 60, 68–69 (1986) (interpreting analogous language in Title
VII religious discrimination context); Fink v. Richmond, 405 F.
App’x 719, 723 (4th Cir. 2010) (ADA context) 10; Hollestelle v.
Metro. Wash. Airports Auth., No. 97-1465, 1998 WL 228199, at *3
n.5 (4th Cir. May 8, 1998) (ADA context); Stephenson v. Pfizer
Inc., No. 1:13CV147, 2014 WL 4410580, at *7 (M.D.N.C. Sept. 8,

10

Unpublished opinions of the Fourth Circuit are not precedential. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(recognizing that “we ordinarily do not accord precedential value to our
unpublished decisions” and that such decisions “are entitled only to the
weight they generate by the persuasiveness of their reasoning”).

15

2014) (ADA context).

Therefore, the limitations period for Cathey

did not commence until she was reasonably put on notice that
Baptist had made a final decision on her accommodation request.
Viewing the record in the light most favorable to Cathey, a
reasonable

jury

could

determine

Cathey

made

an

accommodation

request that Baptist did not finally resolve until May 2011, when
she learned of her reassignment at a lower salary.

See Begolli v.

Home Depot U.S.A., Inc., 701 F.3d 1158, 1160 (7th Cir. 2012)
(“Statute of limitations is a defense, and in a case in which a
party is entitled to, and demands, a jury trial, defenses are tried
to the jury along with the case in chief. . . . The filing deadline
[for an EEOC charge] is just a defense in a Title VII suit, and
there is no reason to distinguish it from other defenses and
therefore exclude it from the jury trial.”); Int’l Healthcare
Exch., Inc. v. Global Healthcare Exch., LLC, 470 F. Supp. 2d 345,
354 (S.D.N.Y. 2007) (concluding that genuine dispute as to when
employee

submitted

judgment).

intake

form

to

EEOC

precluded

summary

Baptist’s motion for summary judgment based on the

timeliness of the filing of the EEOC charge as to a failure-toaccommodate claim is therefore denied.
2.
The

Exhaustion

parties

also

dispute

whether

Cathey

exhausted

administrative remedies before filing suit in this court.

her
Under

the ADA, plaintiffs must exhaust their administrative remedies by
16

filing a charge of discrimination with the EEOC before filing suit
in federal court.

Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593

(4th Cir. 2012).

This ensures that the employer is put on notice

of the employee’s complaints, allowing the employer to address the
alleged discrimination without the cost of litigation.

Id.

This

also allows the EEOC “the first crack at these cases,” using more
efficient
dispute.

administrative
Id.

means

to

reach

a

resolution

of

the

But the test for exhaustion must not be so rigorous

that it “become[s] a tripwire for hapless plaintiffs,” who often
initiate the administrative process without counsel.

Id. at 594.

Consequently, the Fourth Circuit has set out the standard for
determining whether a plaintiff’s federal complaint comes within
the scope of the prior EEOC charge as follows:
[S]o long as a plaintiff’s claims in her judicial
complaint are reasonably related to her EEOC charge and
can
be
expected
to
follow
from
a
reasonable
administrative investigation, she may advance such
claims in her subsequent civil suit. We have therefore
found exhaustion where both the administrative complaint
and formal litigation concerned discrimination in
promotions but involved different aspects of the
promotional system, and where both the EEOC charge and
the complaint included claims of retaliation by the same
actor, but involved different retaliatory conduct.
Id. (citations, internal quotations marks, and brackets omitted).
In this case, Baptist argues that Cathey’s EEOC charge did
not exhaust her administrative remedies because the charge failed
to allege a failure to accommodate. (Doc. 18 at 11.) This argument
is unpersuasive.
17

Cathey’s intake questionnaire made clear that the proficiency
examination took place over a phone that “DID NOT meet the FCC
requirements for someone with a hearing disability.”
at 90 (emphasis in original).)

(Doc. 19-1

Later, Cathey explains that she

“was devastated by losing [her] job based on an evaluation that
not only DID NOT test my interpreting skills but was done over the
phone.

A phone that was older and not up to FCC standards for

people with a hearing disability.”

(Id. at 91.)

Moreover, she

noted that there “were 2 other interpreters that did not score at
the required level, one of which [sic] is from Mexico; however HR
lowered the standards so that those 2 interpreters could continue
interpreting.”

(Id.)

In her EEOC charge, Cathey re-alleged the

same misconduct:
On March 9, 2011, I took the proficiency test on
equipment that did not meet the requirements of my
disability. There were at least two other Interpreters
who had fallen short of the required “Advanced High”
level who had to take the test again, but they were
allowed to continue working as Interpreters.
Human
Resources lowered the standards so that the two
Interpreters could continue interpreting.
(Id. at 83.)
The

gist

of

Baptist’s

argument

is

that

neither

the

questionnaire nor the charge includes an allegation that Cathey
made

a

request

unpersuasive

in

for

an

light

accommodation
of

the

Fourth

from

Dorton.

Circuit’s

This

holding

is

that

administrative remedies have been exhausted for “discrimination

18

claims stated in the initial charge, those reasonably related to
the

original

complaint,

and

those

developed

investigation of the original complaint.”

by

reasonable

Evans v. Technologies

Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).

It is

clear from Cathey’s EEOC filings that a failure-to-accommodate
claim is at least “reasonably related to,” or was likely to be
“developed by reasonable investigation” of, her allegations to the
EEOC. 11

Therefore, the court finds that Cathey has properly

exhausted her claim.
3.

Prima Facie Case

Under the ADA, it is unlawful for an employer to discriminate
against a disabled employee who qualifies for protection under the
Act.

Unlawful

employees

discrimination

includes

accommodations”
§ 12112(b)(5)(A).

an

of

against

employer’s
known

qualifying,

failure

to

disabilities.

make

disabled

“reasonable
42

U.S.C.

To establish a prima facie case against an

employer for failure to accommodate a disability under the ADA, an
employee must establish four elements:

(1) the employee was a

qualified individual with a disability within the meaning of the

11

Baptist argues that Cathey should be held to a higher standard because
she was represented by counsel at the time she filed her EEOC charge.
(Doc. 18 at 12.) Baptist cites no authority for this contention. But
even assuming an elevated standard were appropriate in such cases, it
would not be appropriate here.
Although Cathey may have sought the
advice of counsel at the time she filed her EEOC charge, there is no
evidence she was actually assisted by counsel in preparing and filing
it. (Cathey Decl. ¶ 9.)

19

statute; (2) the employer had notice of the employee’s disability;
(3) the employee could perform the essential functions of his or
her job with reasonable accommodation; and (4) the employer refused
to make such accommodations.

Wilson v. Dollar Gen. Corp., 717

F.3d 337, 345 (4th Cir. 2013).

Baptist concedes, for summary

judgment purposes, that Cathey meets elements one and two and only
challenges
elements.

whether

she

has

established

the

third

and

fourth

(Doc. 18 at 13.)
a.

Ability to Perform Essential Functions with
Reasonable Accommodation

An employee bears the initial burden of establishing that he
or she could perform the essential duties of the position with
reasonable accommodation.

Tyndall v. Nat’l Educ. Ctrs., Inc., of

Cal., 31 F.3d 209, 213 (4th Cir. 1994).

A qualification standard,

even if related to an essential function of a job, may not be used
to exclude a disabled person if she “could satisfy the criteria
with the provision of a reasonable accommodation.”

29 C.F.R.

§ 1630, App. § 1630.10(a).
Baptist argues that Cathey is not a qualified individual under
the ADA because (1) achieving an “advanced mid” proficiency level
on the ACTFL scale is an essential function of Cathey’s job, and
(2) Cathey has not shown that, with any alternate testing method,
she could have achieved such a proficiency level.
16.)

(Doc. 18 at 15–

Cathey responds that (1) the precise ACTFL proficiency level

20

selected by Baptist was not itself an essential function of her
job, as evidenced by the fact that Baptist was willing to lower
the level for other interpreters when it was expedient for Baptist
to do so, and (2) that she was able to meet the required proficiency
level.

(Doc. 23 at 16–17.)

The court finds that there is a genuine dispute of fact on
both issues.

First, it is disputed whether achieving an “advanced

mid” proficiency level is a job qualification rising to the level
of an essential function of the interpreter position.

The court

begins with the proposition that it will usually defer to an
employer’s

clear

decision

to

set

a

job

qualification

as

an

essential function if it is “job-related, uniformly enforced, and
consistent with business necessity.” Davidson v. Am. Online, Inc.,
337 F.3d 1179, 1191 (10th Cir. 2003).

But before the court can

agree with an employer that a job qualification is not itself
discriminatory, see 29 C.F.R. § 1630.10(a), the employer must show
that the qualification rises to the level of an essential function.
The EEOC has set out several non-exhaustive factors for courts to
consider in assessing whether a function or qualification rises to
this level:
(i) The employer’s judgment as to which functions are
essential;
(ii)
Written
job
descriptions
prepared
before
advertising or interviewing applicants for the job;

21

(iii) The amount of time spent on the job performing the
function;
(iv) The consequences of not requiring the incumbent to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current
similar jobs.

work

experience

of

incumbents

in

29 C.F.R. § 1630.2(n)(3).
Neither party has framed its analysis of the “advanced mid”
proficiency
Although

an

requirement
employer’s

around

these

judgment

“as

(or

any

to

which

other)

factors.

functions

essential” is usually clear, that is not the case here.

are

The record

reflects only that Baptist initially and arbitrarily set the
“advanced high” standard and then lowered it after testing upon
discovering that the selection was too aggressive for some of its
employees.

There is no evidence of any other consideration,

including any relationship between the proficiency standard and
the actual job functions.

Baptist has offered no legal authority

or factual evidence that achieving a certain level of proficiency
on the ACTFL scale, as determined by LTI, was itself an essential
function of Cathey’s job independent of her ability to accurately
and efficiently translate between patients and medical personnel.
See Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 682–83 (5th Cir.
1996) (holding that employee created genuine dispute of fact as to
22

whether meeting milestone deadlines rather than final deadlines
was an essential function of job).
The timing of the revision — a reconsideration after learning
of

its

employees’

contention

that

results

“advanced

function of Cathey’s job.

—

mid”

further
is

an

undermines

Baptist’s

indisputably

essential

Rather, the timing of the change

supports Cathey’s contention that the qualification was arbitrary
and not job-related or uniformly enforced.

See 29 C.F.R. § 1630,

App. § 1630.2(n) (“It is important to note that the inquiry into
essential functions is not intended to second guess an employer’s
business judgment with regard to production standards, whether
qualitative or quantitative, nor to require employers to lower
such standards. . . .

It should also be noted that, if it is

alleged that the employer intentionally selected the particular
level of production to exclude individuals with disabilities, the
employer may have to offer a legitimate, nondiscriminatory reason
for its selection.”).
Second, even if the “advanced mid” qualification did qualify
as an essential function, there is a genuine dispute as to whether
Cathey could have tested at that level of proficiency with a
reasonable accommodation of her hearing disability.

Cathey has

testified that she subjectively believes she would have met her
proficiency goal had the test been given through any medium besides
the telephone.

(Cathey Dep. at 62, Doc. 22-4.)
23

More importantly,

the undisputed facts demonstrate that before Baptist began relying
on LTI — and instead used live, in-person evaluations — Cathey
exceeded Baptist’s required standards for her position.

(See,

e.g., Doc. 22-4 at 24–26 (performance evaluation showing that
Cathey “exceeds standards” for “[i]nterpreting communications from
Hispanic/Latino

patients

to

Medical

approving her for a merit raise).)

Center

personnel”

and

Thus, a jury could conclude

that Cathey cannot meet the new standard only when the test is
performed over the telephone without a reasonable accommodation.
For these reasons, Baptist’s motion for summary judgment on
this ground will be denied.
b.

Failure to Accommodate

For its final attack on the merits of Cathey’s failure-toaccommodate claim, Baptist argues that Cathey failed to inform
Baptist “of both the disability and [her] need for accommodations
for that disability.”

(Doc. 18 at 13 (quoting Schneider v. Giant

of Md., LLC, 389 F. App’x 263, 270 (4th Cir. 2010)).)

Baptist

essentially urges the court to discredit Cathey’s sworn deposition
testimony that she told Dorton about her hearing disability and
specifically requested a testing accommodation from Dorton.

It

would be inappropriate, however, for the court to grant Baptist’s
motion for summary judgment on this basis. 12

12

Baptist has not argued that it granted Cathey a reasonable
accommodation, whether in the form of hearing aids, reassignment, or

24

Cathey has pointed to sufficient evidence that would allow a
reasonable jury to conclude that she informed Baptist of her
hearing disability and of her need for a testing accommodation.
Baptist was aware of Cathey’s hearing disability because (1) it
paid 90% of the purchase price of her hearing aids; (2) Dorton
witnessed Cathey’s hearing problems; (3) Cathey had complained to
Dorton about her hearing problems; and (4) Dorton provided Cathey
with a hearing device.

(Cathey Dep. at 97–108, Doc. 22-4; Dorton

Dep. at 80–82, Doc. 19-4.)

Baptist was also on notice that Cathey

had requested an accommodation for the proficiency test because,
after her March 2011 test, Cathey told Dorton, her immediate
supervisor,

that

she

could

not

hear

well

enough

through

the

telephone and that she would prefer to return to an in-person
evaluation — a request that Dorton expressly rejected.

(Cathey

Dep. at 124–25, Doc. 22-4; Cathey Dep. at 129–32, Doc. 19-1.)
Baptist and Dorton deny that these conversations with Cathey
occurred.

However, on a motion for summary judgment, the court

must draw all reasonable inferences in favor of Cathey, including
reasonable credibility inferences.

Shaw v. Stroud, 13 F.3d 791,

798 (4th Cir. 1994) (“In considering a motion for summary judgment,

otherwise. (See Doc. 18 at 13–15.) Rather, it has focused its argument
on Cathey’s alleged failure to provide notice of her need for
accommodation. (See id. at 14 (“Here, Cathey cannot show that [Baptist]
refused to make accommodations, as she cannot demonstrate that she
adequately put [Baptist] on notice of her need for an accommodation with
respect to the March 2011 [proficiency exam] because of her hearing
condition.”).)

25

the court is required to view the facts and draw reasonable
inferences in a light most favorable to the nonmoving party.

The

plaintiff is entitled to have the credibility of all his evidence
presumed.” (citation omitted)).

Based on the evidence Cathey has

presented, a reasonable jury could conclude that Baptist refused
to make a reasonable accommodation of her hearing disability.
Therefore, Baptist’s motion to dismiss the failure-to-accommodate
claim will be denied.
C.

Wrongful & Constructive Discharge

Cathey

claims

that

Baptist

constructively,

and

wrongfully, discharged her on account of her disability.
¶ 18; Doc. 23 at 12.)

thus

(Compl.

Baptist denies that it took any actions

amounting to constructive discharge.
A

prima

facie

case

of

wrongful

plaintiff to demonstrate four elements:

discharge

requires

the

(1) presence within the

ADA’s protected class; (2) discharge; (3) performance of the job
at a level that met the employer’s legitimate expectations at the
time of discharge; and (4) circumstances surrounding the discharge
that raise a reasonable inference of unlawful discrimination.
Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).
Because Cathey was not actually discharged but quit, she seeks to
prove the discharge element on a constructive discharge theory.

26

Baptist only disputes the discharge element. 13
To

demonstrate

that

an

employer’s

actions

amount

constructive discharge, a plaintiff must show two elements:

to
“(1)

that the employer’s actions were deliberate, and (2) that working
conditions were intolerable.”

Heiko v. Colombo Sav. Bank, F.S.B.,

434 F.3d 249, 262 (4th Cir. 2006).

On the first element, an

employer’s actions only qualify as deliberate “if they ‘were
intended by the employer as an effort to force the plaintiff to
quit.’”

Id. (quoting Matvia v. Bald Head Island Mgmt., Inc., 259

F.3d 261, 272 (4th Cir. 2001)).

Such an intent “can be proven by

actual or circumstantial evidence, including evidence of ‘actions
that single out a plaintiff for differential treatment.’”

Carter

v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (quoting Johnson v.
Shalala, 991 F.2d 126, 131 (4th Cir. 1993)).

On the second

element, “[w]hether an employment environment is intolerable is
determined from the objective perspective of a reasonable person,”
but “mere dissatisfaction with work assignments, a feeling of being

13

In a footnote, Baptist states, “Due to the overlapping evidence,
[Baptist] relies on its constructive discharge arguments for purposes
of also showing that there was no reasonable inference of unlawful
discrimination with respect to Cathey’s discharge — a required element
of Cathey’s prima facie case.”
(Doc. 18 at 18 n.5.)
This footnote
argument puts the court in the difficult position of imagining what a
party would have argued about an issue, which the court is in no position
to do. Baptist has not carried its burden on this unexplained argument,
and therefore the court declines to grant summary judgment on this basis.
See Nw. Nat. Ins. Co. v. Baltes, 15 F.3d 660, 662–63 (7th Cir. 1994)
(declining invitation of “[l]awyers and litigants who decide that they
will play by rules of their own invention”).

27

unfairly criticized, or difficult or unpleasant working conditions
are not so intolerable as to compel a reasonable person to resign.”
Heiko, 434 F.3d at 262 (citations and internal quotation marks
omitted).
The Fourth Circuit has made clear that not every adverse
employment action will rise to the level of constructive discharge.
For

example,

while

“[d]emotion

can

constitute

a

constructive

discharge, especially where the demotion is essentially a careerending action or a harbinger of dismissal,” merely a “slight
decrease

in

pay

responsibilities”

coupled
does

not

with

some

amount

to

loss

of

supervisory

constructive

discharge.

Carter, 33 F.3d at 459 (citations and internal quotation marks
omitted).

Moreover,

an

employer’s

failure

to

accommodate

a

disability does not automatically create a claim of constructive
discharge, although possibly a “complete failure to accommodate,
in the face of repeated requests, might suffice as evidence to
show the deliberateness necessary for constructive discharge.”
Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir. 1993).
In this case, Cathey has not presented sufficient evidence on
either prong.

Cathey’s only evidence of deliberateness is that

Baptist lowered the proficiency standard to a level that allowed
her

two,

non-disabled

co-workers

to

continue

interpreting.

However, the evidence is not that the proficiency level was not
also lowered for Cathey but that Cathey would have preferred the
28

standard be lowered two notches further to match her assessed ACTFL
level.

Though this could be seen as an effort to induce Cathey to

accept a slight demotion, it is insufficient evidence of Baptist’s
specific intent to force Cathey to quit.
Cathey also fails to show that a reasonable person would have
found her demotion so intolerable that she would have quit.

See

Carter, 33 F.3d at 459 (“The doctrine of constructive discharge
protects an employee ‘from a calculated effort to pressure him
into resignation through the imposition of unreasonably harsh
conditions, in excess of those faced by his co-workers.’” (quoting
Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).
Cathey was reassigned to work as a dispatcher, and her pay was
decreased

about

four

dollars

per

hour,

a

reduction

of

about

eighteen percent (with no apparent change in employer benefits).
Cathey apparently does not believe that merely being reassigned to
work as a dispatcher constituted constructive discharge.

She was

asked this question directly during her deposition:
Q. If the dispatcher pay had been equivalent to
the interpreter pay, would you have stayed?
A.

Yes.

(Cathey Dep. at 226, Doc. 25-1.)

Cathey points to no reason why

the

together

change

in

pay,

even

taken

with

the

apparently

acceptable reassignment, is so “unreasonably harsh” so as to cause
a reasonable person to quit.

29

In light of the fact that Baptist found Cathey a new position
and subsidized ninety percent of the cost of her hearing aid, no
reasonable jury could conclude that the decrease in Cathey’s hourly
wages was a deliberate attempt to force her to quit, or that a
reasonable person would find such treatment intolerable.
reduction was not tantamount to being actually fired.

The

There is no

genuine dispute of material fact on the wrongful discharge claim,
and Baptist is entitled to judgment as a matter of law on it. 14
D.

Disparate Treatment Claim

Cathey claims that Baptist treated her less favorably than
other similarly situated co-workers on account of her hearing
disability. (Compl. ¶ 24 (“Defendant subjected Cathey to disparate
treatment by removing her from her position, reducing her pay, and
holding her to higher standards than similarly situated nondisabled employees.”).) Baptist has focused its motion for summary
judgment on Cathey’s other claims for failure to accommodate (id.
¶ 23) and wrongful (constructive) discharge (id. ¶ 18).

In a

footnote, however, Baptist briefly argues that Cathey’s claim,
that

her

removal

from

the

interpreter

position

constituted

disparate treatment, is time-barred and lacks support in the
record.

(See Doc. 18 at 19 n.6.)

14

Because the court has dismissed the wrongful discharge claim on the
merits, it need not reach Baptist’s statute-of-limitations defense. (See
Doc. 18 at 17.)

30

Although it is tempting for a party to downplay a claim by
relegating discussion of it to a footnote, it is not the court’s
job to undertake the analysis and legal research needed to support
such a perfunctory argument. Lab. Corp. of Am. Holdings v. Kearns,
No. 1:14CV1029, ___ F. Supp. 3d ___, 2015 WL 413788, at *10
(M.D.N.C. Jan. 30, 2015) (quoting Hayes v. Self–Help Credit Union,
No. 1:13–CV–880, 2014 WL 4198412, at *2 (M.D.N.C. Aug.22, 2014));
see

also

Local

Rule

7.2(a)

(requiring

litigants

to

refer

to

statutes, rules, and authorities in support of their arguments);
Cross Med. Products, Inc. v. Medtronic Sofamor Danek, Inc., 424
F.3d 1293, 1320 n.3 (Fed. Cir. 2005) (refusing to address an
undeveloped
Aerospace,

argument
Inc.,

No.

raised

in

a

1:12-cv-717,

footnote);
2014

WL

Hughes

906220,

at

v.

B/E

*1

n.1

(M.D.N.C. Mar. 7, 2014) (“A party should not expect a court to do
the work that it elected not to do.”).
On this record, there is simply not sufficient argument,
factual or legal, to provide the court any guidance as to the
substance

of

the

contention.

Therefore,

to

the

extent

this

footnote constituted an argument for summary judgment, it is not
properly presented and will be denied without prejudice. 15

15

Because this denial is on procedural grounds, the court makes no
conclusion as to the merits of any disparate treatment claim.

31

III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Baptist’s motion for summary
judgment (Doc. 17) be GRANTED in part and DENIED in part, and that
judgment be GRANTED for Baptist as a matter of law on Cathey’s
claim

that

she

was

wrongfully

(constructively)

discharged

on

account of her disability, which is DISMISSED WITH PREJUDICE, and
that Baptist’s motion otherwise be DENIED.

/s/
Thomas D. Schroeder
United States District Judge
March 12, 2015

32