Palotai v. University of Maryland , 38 F. App'x 946 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS PALOTAI, 
Plaintiff-Appellant,
v.
UNIVERSITY OF MARYLAND AT  No. 01-1147
COLLEGE PARK; HENRY MITYGA;
LAURIE HELLMAN-AKER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-00-742-PJM)
Argued: April 4, 2002
Decided: June 27, 2002
Before MICHAEL and MOTZ, Circuit Judges, and
Walter K. STAPLETON, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit,
sitting by designation.
Affirmed by unpublished opinion. Senior Judge Stapleton wrote the
opinion, in which Judge Michael and Judge Motz joined.
COUNSEL
ARGUED: Olge Csaky Schaut, LAW OFFICE OF OLGE SCHAUT,
Arlington, Virginia, for Appellant. Thomas Faulk, Assistant Attorney
2 PALOTAI v. UNIVERSITY OF MARYLAND
General, Baltimore, Maryland, for Appellees. ON BRIEF: Philip B.
Zipin, GAGLIARDO & ZIPIN, Silver Spring, Maryland, for Appel-
lant. J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
STAPLETON, Senior Circuit Judge:
Appellant Thomas Palotai filed a complaint in a Maryland state
court asserting that the University of Maryland and individuals asso-
ciated with running the University Greenhouse violated his rights
under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
He also alleged that these defendants infringed his federal and state
due process rights by failing to give him a timely and fair hearing on
his suspension without pay and the termination of his employment
with the University. The defendants removed the case to federal court.1
The District Court dismissed the due process claims and subsequently
granted summary judgment on the remaining ADA claims. Palotai
timely appealed.
I
A. Factual Background
Palotai worked from November of 1994 to June of 1997 as an
Agricultural Technician in the Greenhouse operated by the University
of Maryland’s Department of Natural Resource Sciences and Land-
1
The University waived its Eleventh Amendment immunity by remov-
ing the case against it to the District Court. See Lapides v. Board of
Regents of the University System of Georgia, 535 U.S. ___, 122 S.Ct.
1640 (2002).
PALOTAI v. UNIVERSITY OF MARYLAND 3
scape Architecture. The Greenhouse is maintained for the care of
plant specimens used for both research and teaching. It is essential
that the plant material which the faculty entrusts to the Greenhouse
be maintained in strict accordance with the specifications provided.
Palotai’s "responsibilities included supervision of all aspects of
plant care and maintenance, pest control, maintenance of all spraying
and other equipment, treatment of cooling system, and disposal of
hazardous wastes." App. at 13-14. According to Palotai, he had diffi-
culty performing some of his required tasks within the appropriate
deadlines because of a learning disability. Palotai informed Pamela
McGrath, the Assistant Manager of the Greenhouse, of this disability
in June of 1995.
In the summer of 1996, Laurie Hellman-Aker, the Greenhouse
Manager, created a system of "time frames." This was a schedule that
let Palotai know how much time he was to allot to each task. Palotai
expressed concern about these "time frames," and during the summer,
six meetings were held to discuss Palotai’s concerns. After each one,
Hellman-Aker reprimanded Palotai for failing to comply with the
stipulated schedule. The University kept the "time frames" in place.
Later that fall, Palotai suffered an accidental eye injury while
spraying the Greenhouse with pesticides. He claims that as a result of
this injury he was blind in one eye and told Hellman-Aker that he
would not be able to perform his responsibilities. Despite Palotai’s
protestations, Hellman-Aker continued to require him to spray the
Greenhouse with pesticides. The complaint alleges that because he
was unable to read his work list due to the blindness, Palotai sprayed
the wrong section of the Greenhouse. In reaction to this incident,
Hellman-Akers issued Palotai a five-day unpaid suspension, effective
October 10, 1996.
On October 16, 1996, Palotai filed a discrimination complaint with
the University’s EEOC office. The complaint was investigated and
resulted in a finding of "no discrimination."
On October 17, 1996, after his treating ophthalmologist advised
him that he could not work with pesticides, Palotai told Hellman-Aker
that he could not work until his eye was healed, and requested that
4 PALOTAI v. UNIVERSITY OF MARYLAND
he be placed on sick leave until testing on his eye was complete. In
response to this request, Hellman-Aker extended the suspension an
additional day, then placed Palotai on sick leave. Palotai remained on
sick leave until early December.
At about the same time, Palotai wrote to the University EEO coun-
selor requesting that the University make a "reasonable accommoda-
tion" for his disability by removing the time frames from his work
assignments. Hellman-Aker responded to this request one month later
indicating that she believed that the time frames were beneficial to
Palotai’s work habits. On February 23, 1997, Palotai requested a
transfer out of the Greenhouse; that request was denied.
On June 5, 1997, Palotai received a letter from Professor Richard
A. Weismiller, Chair of the Department, that stated in part as follows:
In accordance with Section VIII of the University of
Maryland Personnel Policies and Rules for Classified
Employees, I am writing to inform you that effective imme-
diately you are suspended without pay from your position of
Agricultural Technician III, pending the filing of charges for
your removal.
This action is the result of your continued disregard for
rules, directions and safety standards in the Greenhouse. On
Friday, May 30, 1997, you were verbally counseled by your
supervisor for failing to wear protective eye equipment
while in the greenhouse area during the re-entry interval as
required by E.P.A. Worker Protection Standards. This is
particularly disturbing in light of your eye injury last fall
which occurred as a result of your failure to comply with
these standards. On Monday, June 2, 1997, you again disre-
garded instructions in your failure to accurately record pesti-
cide applications for each greenhouse as required by your
supervisor to meet Maryland Department of Agriculture
standards. On Wednesday morning, June 4, 1997, you were
found without appropriate protective eyewear in an area
which had been sprayed the night before. This morning,
June 5, 1997, you were working in shorts in an area requir-
ing protective legwear. These incidents, together with your
PALOTAI v. UNIVERSITY OF MARYLAND 5
disciplinary history and record of disregarding Greenhouse
rules, leave me no choice but to take this action.
App. at 412.
Palotai had no prior notice of this suspension without pay. When
Professor Weismiller made the decision to suspend Palotai, he was
familiar with Palotai’s disciplinary record over the preceding two and
a half years which revealed that Greenhouse administrators had repri-
manded Palotai at least 42 times. His information about the events of
May 30th through June 5th came directly from Palotai’s immediate
supervisor, Ms. Hellman-Aker. He did not independently investigate
the facts before making his decision.
Palotai immediately appealed his suspension. On June 17, 1997,
Palotai received charges for removal from the University. Palotai also
appealed the removal charges.
B. Suspension, Termination, and Administrative Review
The governing regulations of the University provide that a hearing
will be held within five working days after an employee appeals a
suspension. The hearing on Palotai’s suspension was convened on
July 10, 1997. The hearing was not completed on that date, however,
and was continued until August 14, 1997. The Hearing Examiner
issued a decision one week after the completion of the hearing, on
August 21, 1997. In that decision, the Examiner found that "Mr.
Palotai’s position as an Agricultural Technician requires him to work
closely with extremely dangerous chemicals." Decision of the Hear-
ing Examiner at 6. Further, the Examiner concluded, "given the
potential for severe injury to Mr. Palotai and liability to the University
as a result of the failure to take appropriate safety measures when
handling pesticides and other chemicals in the greenhouses, the only
viable option available to the University is to suspend this employee
pending final disposition of the charges." Id.Prior to a resolution of the suspension issue, Palotai received his
formal charges of removal. Palotai timely requested a hearing on his
termination. In the case of removal, Section 13-205(a) of the Mary-
land Code provides:
6 PALOTAI v. UNIVERSITY OF MARYLAND
Within 5 days from the date on which the employee receives
the charges for removal as evidenced by the return receipt
or other evidence of delivery of the charges to the employee
an employee who is suspended under charges for removal
may request an opportunity to be heard in his own defense.
Within 30 days if possible after receipt, the president or the
president’s designated representative shall investigate the
charges and give the employee an opportunity to be heard.
Testimony shall be taken under oath and both the depart-
ment head or chairman or designee and the employee have
the right of representation by counsel and the right to pre-
sent witnesses and give evidence.
Md. Code Ann., Educ., § 13-205(a). If still unresolved after the presi-
dent of the institution considers the matter, the employee may submit
the grievance to arbitration or to the Office of Administrative Hear-
ings (the "OAH"). See id. at § 13-203(d).
Over sixteen months after requesting a hearing on the removal
charges, on November 2, 1998, Palotai received a hearing from the
University. The University issued a decision upholding the termina-
tion on December 23, 1998. Palotai filed an appeal to the OAH on
January 8, 1999. A hearing was held on February 24, 1999 and a deci-
sion affirming the charges of removal issued on March 11, 1999. Pur-
suant to the Maryland Code, Palotai requested judicial review of this
decision on March 16, 1999. Palotai claimed in part that the proceed-
ings before the OAH regarding his termination violated his due pro-
cess rights. The Circuit Court for Prince George’s County, Maryland,
entered an order on February 29, 2000, affirming the decision of the
OAH which was in turn affirmed by the Maryland Court of Special
Appeals on March 19, 2001. The Maryland Court of Appeals denied
certiorari on September 14, 2001.
C. The Present Lawsuit
Prior to receiving a decision from the state court on his request for
judicial review of the removal charges, Palotai filed an eight count
complaint in state court against the University of Maryland, Hellman-
Aker, and Henry Mityga, the faculty member having the responsibil-
ity of overseeing the operation of the greenhouse. According to
PALOTAI v. UNIVERSITY OF MARYLAND 7
Palotai, the defendants violated the ADA (Counts I and II); the Due
Process Clause of the Fourteenth Amendment (Counts III, IV, V, and
VI); and Articles 19 & 24 of the Maryland Declaration of Rights, the
state law counterpart to the Due Process Clause (Counts VII and
VIII).
Following removal to the District Court, the individual defendants
and the University moved to dismiss. In the responsive pleadings to
those motions, Palotai conceded that individuals cannot be held liable
under the ADA, and voluntarily withdrew his claims against Hellman-
Aker and Mityga under the ADA. Further, Palotai voluntarily with-
drew claims IV and VI, which alleged due process claims against the
University because the institution is not a proper defendant under 42
U.S.C. § 1983.
The Court dismissed with prejudice Counts III and VII, which
stated due process claims against the individual defendants for failing
to provide a suspension hearing within an appropriate time frame. It
dismissed for lack of jurisdiction Counts V and VIII, which asserted
due process claims relating to the termination hearing. The Court’s
order granted Palotai an opportunity to amend his complaint to set
forth his ADA claims with greater specificity.
Three months after Palotai filed his First Amended Complaint, the
state filed a motion for summary judgment on the ADA claims. The
Court granted defendants’ motion finding that Palotai had not ten-
dered evidence tending to show (1) that he was disabled under the
ADA or (2) that there was a causal connection between any disability
and his suspension or removal.
II
A. The Suspension Hearing Claims
Palotai claims that the University violated his due process rights by
failing to provide a hearing prior to suspending him without pay. He
further insists that his post-suspension hearing was constitutionally
infirm.
8 PALOTAI v. UNIVERSITY OF MARYLAND
We will assume for present purposes that Palotai had a cognizable
property interest in his job that triggered the protection afforded by
the Due Process Clause. See, e.g, FDIC v. Mallen, 486 U.S. 230, 240
(1988). Thus, we will proceed to determine what process the state
owed Palotai, and whether the state met that threshold. See Morrissey
v. Brewer, 408 U.S. 471, 481 (1972) ("Once it is determined that due
process applies, the question remains what process is due.").
Although there is a preference for pre-deprivation process to pro-
tect an individual’s property interest, post-deprivation process will
suffice in certain situations. See Gilbert v. Homar, 520 U.S. 924, 930
(1997). Where there is an "important government interest, accompa-
nied by a substantial assurance that the deprivation is not baseless or
unwarranted," the state may be justified in delaying "the opportunity
to be heard until after the initial deprivation." Mallen, 486 U.S. at
240. Where the state has "probable cause to believe" that the employ-
ee’s continuing employment will jeopardize an important governmen-
tal interest, there is the required assurance that the deprivation is not
baseless or unwarranted. Barry v. Barchi, 443 U.S. 55, 65 (1979).
This was such a situation.2
As the Hearing Examiner ultimately found, the University had an
important interest not only in the mission of the greenhouse facility
and the safety of those employed there, but also in avoiding the legal
and other potential consequences of misuse of the toxic chemicals at
that facility. Based on the information he received from the manager
of the greenhouse and Palotai’s immediate supervisor, Professor
Weismiller had reason to believe that Palotai had violated safety rules
relating to the use of those toxic chemicals on four occasions within
a week and had disregarded three reprimands for having done so.
This, combined with Palotai’s overall disciplinary record, gave ample
2
We note at the outset of our analysis of this issue that Palotai in his
briefing before us does not object to the District Court’s consideration of
portions of the record other than the allegations of the complaint in the
course of granting the defendants’ motion to dismiss. Indeed, Palotai’s
brief relies heavily on the deposition testimony of Professor Weismiller
in support of his position. Accordingly, it is appropriate for us to rely on
uncontradicted portions of the record other than the allegations of the
complaint.
PALOTAI v. UNIVERSITY OF MARYLAND 9
cause to believe that further misuse of toxic substances would be
likely to occur if Palotai were permitted to continue working at the
greenhouse.
Palotai does not dispute that the University has an important inter-
est in avoiding the potential consequences of the misuse of toxic
chemicals. He insists that the reprimands between May 30th and June
5th, as well as many of the earlier reprimands, were not justified and
that Professor Weismiller should have conducted an independent
investigation or at least talked with him before issuing the suspension
letter. Investigations and hearings with the notice required to make
them meaningful take time, however, and the state is not required to
take that time when it has probable cause to believe that immediate
suspension is required to serve its important interest. Ms. Hellman-
Aker held a responsible position at the University, was Palotai’s
direct supervisor, and was a participant in many of the reprimands.
Her report provided the required probable cause without the necessity
of corroborating evidence. The failure to give Palotai a pre-
suspension hearing did not violate his due process rights.
Nor can Palotai justifiably claim that his post-suspension hearing
was constitutionally infirm. First, the delay in holding the hearing was
not impermissibly long. "[E]ven though there is a point at which an
unjustified delay in completing a post-deprivation proceeding ‘would
become a constitutional violation,’ . . . the significance of such a
delay cannot be evaluated in a vacuum." Mallen, 486 U.S. at 242(citation omitted). Courts must consider "the importance of the pri-
vate interest and the harm to this interest occasioned by delay; the jus-
tification offered by the Government for delay and its relation to the
underlying governmental interest; and the likelihood that the interim
decision may have been mistaken." Id.The hearing commenced approximately one month after Palotai’s
suspension and the hearing was continued for approximately five
weeks until August 14, 1997. The total delay between the suspension
and Hearing Examiner’s decision was approximately two and a half
months. Under the circumstances, this delay was not so extensive as
to be impermissible. See, e.g., Mallen, 486 U.S. at 243 (allowing a 90
day delay for continuing suspension). Palotai claims that the defen-
dants continued the hearing through July and August because
10 PALOTAI v. UNIVERSITY OF MARYLAND
Hellman-Aker was on family leave. If so, the desirability of having
a key witness available at the hearing seems apparent and indicates
that the delay was not without legitimate justification.
We do not find it significant that the Maryland law requires a hear-
ing on removal charges within 5 days of the appeal of the deprivation.
Violation of a state-mandated procedure does not constitute a viola-
tion of constitutional due process protections. See Morris v. City of
Danville, 744 F.2d 1041, 1048 n.9 (4th Cir. 1984) (recognizing that
the "mere fact that a state agency violates its own procedures does
not, ipso facto, mean that it has contravened federal due process
requirements").
Lastly, Palotai claims that the hearing "violated [his] substantive
constitutional due process rights because [he] was denied a fair trial."
Appellant’s Brief at 53. His argument is that the hearing examiner
was biased. We can find no discernible bias in the Hearing Examin-
er’s conduct or reasoning. She considered both Palotai’s and the Uni-
versity’s evidence and made reasonable findings based on that
evidence.
B. The Termination Hearing Claims
The District Court dismissed the due process claims related to the
termination hearing because no federal court other than the Supreme
Court has jurisdiction to review a state court judgment. See District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Guess v. Board of Med. Exam’rs of North Carolina, 967 F.2d 998(4th Cir. 1992). This rule, commonly known as the Rooker-Feldman
doctrine, applies even to constitutional claims where such claims are
"inextricably intertwined with the state court’s denial in a judicial
proceeding of a particular plaintiff’s [claim]." Feldman, 460 U.S. at483-84 n.16; Czura v. Supreme Court of South Carolina, 813 F.2d
644, 646 (4th Cir. 1987).
Here, the Circuit Court for Prince George’s County considered
Palotai’s claims of substantive and procedural due process violations
in its review of the termination hearing. That court held that the ALJ
provided Palotai a fair procedure to submit evidence and that the ALJ
considered the evidence Palotai chose to submit. Further, the state
PALOTAI v. UNIVERSITY OF MARYLAND 11
court gave credence to the ALJ’s finding that the major delays in the
process were due to Palotai, not the University. And any minor delay,
such as the one between the hearing and the issuing of the decision,
was found not to prejudice Palotai. Accordingly, the court declined to
find due process violations.
The District Court properly held that it could not rule on Palotai’s
claims regarding the termination hearing without reviewing the out-
standing state court’s judgment. Thus, we will affirm the District
Court’s decision to dismiss these claims for want of jurisdiction under
the Rooker-Feldman doctrine.3
III
We will also affirm the summary judgment entered by the District
Court on Palotai’s ADA claim for essentially the reasons given by it.
Palotai alleges that the University violated his rights under the
ADA by imposing arbitrary "time frames" on him because of his dis-
abilities and by refusing his request to accommodate his disabilities
by dispensing with those time frames. To succeed on these claims,
Palotai must first show that he is "disabled" within the meaning of the
ADA. See Rhoads v. FDIC, 257 F.3d 373, 387 (4th Cir. 2001). The
ADA defines a "disability" in part as "a physical or mental impair-
ment that substantially limits one or more of the major life activities."
3
Appellant alleges that the University of Maryland violated both his
federal and state due process rights. Appellant’s state due process claims
are based on Articles 19 and 24 of the Maryland Constitution. The Court
of Appeals of Maryland has held that the due process clauses of the
Maryland Constitution have the same meaning as the Due Process Clause
of the Fourteenth Amendment of the Federal Constitution. See Depart-
ment of Transp., Motor Vehicle Admin. v. Armacost, 474 A.2d 191 (Md.
1984); see also Sanner v. Trustees of Shippard and Enoch Pratt Hosp.,
278 F. Supp. 138, 141 (D. Md.), aff’d, 398 F.2d 226 (4th Cir. 1968)
("[I]n construing [Articles 19, 20, and 23 (now 24)] the Maryland court
has held that the decisions of the Supreme Court are practically direct
authority."). Thus, having concluded that Palotai’s complaint failed to
state a cause of action under the Due Process Clause of the United States
Constitution, the District Court properly determined that the claim under
the Maryland Constitution had to be dismissed as well.
12 PALOTAI v. UNIVERSITY OF MARYLAND
42 U.S.C. § 12102(2)(A). Examples of major life activities are "car-
ing for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
When the major life activity at issue is working, "[t]he inability to
perform a single, particular job does not constitute a substantial limi-
tation in the major life activity of working." Id. at. § 1630.2(j)(3)(i).
The determination of whether an individual is disabled is an individu-
alized inquiry, particular to the facts of each case. See Sutton v.
United Air Lines, Inc., 527 U.S. 471, 483 (1999). "The phrase ‘sub-
stantially limits’ sets a threshold that excludes minor impairments
from coverage under the ADA." EEOC v. Sara Lee Corp., 237 F.3d
349, 352 (4th Cir. 2001). "Substantially limits" means:
(i) Unable to perform a major life activity that the aver-
age person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner
or duration under which an individual can perform a particu-
lar major life activity as compared to the condition, manner,
or duration under which the average person in the general
population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(i)-(ii).
The impairments that are alleged to make Palotai "disabled" are:
(1) "learning disabilities"; (2) "obsessive/compulsive disorder"
(OCD); and (3) "recurrent central serous retinopathy." The last is
alleged to be a substantial impairment on the major life activity of
seeing, and the first and second are said to be substantial impairments
on the major life activities of learning and working. The record con-
tains evidence that would support a finding that Palotai has each of
these conditions. As the District Court noted, however, the record
does not contain evidence that would support a finding that he has a
legally relevant disability for purposes of his ADA claim.
With respect to Palotai’s learning disabilities, upon which he places
primary reliance, the record contains no evidence from which a trier
of fact could conclude that they substantially limit his ability to work
or his ability to learn in any way here relevant. To the extent Palotai
is relying on the proposition that his "learning disabilities" substan-
PALOTAI v. UNIVERSITY OF MARYLAND 13
tially limit his ability to work, he must show that this disability pre-
cluded him from a substantial class of jobs. See 29 C.F.R.
§ 1630.2(j)(3)(i). This he has not done.
To the extent that Palotai claims that his learning disabilities sub-
stantially limit the major life activity of learning, Palotai must show
that his impairment significantly restricts his ability to learn. In evalu-
ating this claim, we must consider whether Palotai is unable to learn
in comparison to the average person in the general population.
The record evidencing that Palotai has learning disabilities consists
of a report of a psychologist, following testing in April of 1994. Its
purpose was not to compare Palotai’s ability to learn with that of an
average person in the general population and, not surprisingly, it does
not provide a basis for doing so. This deficiency is particularly crucial
in a case like this one in which the person claiming a significant limi-
tation on his ability to learn has a demonstrated record of academic
achievement and has been able to quickly learn skills required by the
only working experience documented in the record. As of the time of
his employment with the University, Palotai had a B.S. degree in biol-
ogy and the sciences and had 30 hours of graduate work in education.
When Palotai first came to the University, he had no difficulty in
promptly mastering the responsibilities of his job. As his brief
describes his experience during his probationary period:
The record proves that the Appellant adequately performed
the essential functions of his Ag Tech job in accordance
with his official position description. In the Greenhouses,
the Appellant supervised all aspects of plant care and main-
tenance, pest program control, treatment of the cooling sys-
tem with Triathlon, and the disposal of hazardous materials.
It was the Appellant, not Hellman-Aker, who supervised and
trained the college students working as hourly employees in
the Greenhouse. Appellant trained the new employees in all
aspects of plant care and maintenance [watering, ventilation,
trimming and propagation of new plants,] and in the pest
program [spraying and regulations].
Appellant’s performance rating after initial probation
indicated that he performed all job functions in a satisfac-
tory manner.
14 PALOTAI v. UNIVERSITY OF MARYLAND
Appellant’s Reply Br. at 2 (citing App. at 192).
With respect to Palotai’s OCD, the record contains two handwrit-
ten, barely legible reports of psychiatrists dating from late 1996, one
of which describes Palotai as having "compulsions" and "obsessions."
Neither, however, would support a finding that his OCD rendered him
unable to perform a substantial class of jobs or that his capacity to
learn is less than the average person in the general population.
Lastly, Palotai cannot demonstrate this his eye impairment consti-
tutes a disability. The record evidences that two ophthalmologists
diagnosed Palotai as having central serous retinopathy. Their reports
reveal the following:
1. Palotai first presented with central serous retinopathy in
December of 1995. The problem "resolved spontaneously." App. at
183.
2. The central serous retinopathy returned in October of 1996 and
his vision in his left eye dropped to 20/200. The problem was treated
successfully with laser surgery and the vision returned to 20/25.
3. On July 2, 1997, his vision was 20/40 in the left eye.
4. On May 29, 1998, his vision was 20/40 in his left eye and
20/30 in his right. Palotai reported that he felt his vision had gradually
improved since his surgery in 1996.
5. While there was "no evidence of active retinopathy" in May
1998, Palotai "is at risk for further episodes of central serous." App.
at 183.
6. "Based on AMA guidelines, Mr. Palotai’s left eye is 15%
impaired with the five Maryland disability factors applied." Id.We agree with the District Court that this record would not support
a finding that Palotai’s central serous retinopathy constituted a "dis-
ability" for purposes of the ADA during any period relevant here. See
Albertson’s Inc. v. Kirkingburg, 527 U.S. 555, 559, 566 (1999) (evi-
PALOTAI v. UNIVERSITY OF MARYLAND 15
dence of "amblyopia, an uncorrectable condition that [left plaintiff]
with 20/200 vision in his left eye and monocular vision in effect" did
not alone establish that plaintiff was "disabled"); Pollard v. High’s of
Baltimore, Inc., 281 F.3d 462, 468 (4th Cir. 2002) (". . . a temporary
impairment, such as recuperation from surgery, will generally not
qualify as a disability under the ADA. . . . An impairment simply can-
not be a substantial limitation on a major life activity if it is expected
to improve in a relatively short period of time.").
Moreover, even assuming that Palotai could establish that his
impairments constituted a disability under the ADA, we agree with
the District Court that the "time frames" resulted from the demands
of the job, and that any accommodation involving the elimination of
time constraints and deadlines was not a reasonable one. As the Dis-
trict Court put it:
The core of the case, however, has to do with the time
frames that are established, and that they were inequitably
imposed upon the plaintiff. That seems to be the issue that
the plaintiff says is the core of his case, and the removal of
the time frames is what he was seeking.
The defendant argues that this is essentially an open-
ended work schedule and that would not be a fair, reason-
able accommodation, but one has to look specifically at the
context of the job that the plaintiff held. He was in a green-
house involving plants.
In the letter from Ms. Hellman-Aker to Mr. Palotai sent
in 1997, the language, it seems to me, is quite relevant when
one considers whether there even could be a reasonable
accommodation in this case, assuming a learning disability,
assuming that it somehow substantially limited activities,
assuming that there was a request for reasonable accommo-
dation ultimately. The question has to be whether there
could be a reasonable accommodation for someone similarly
placed as plaintiff.
Here is what Ms. Hellman-Aker says.
16 PALOTAI v. UNIVERSITY OF MARYLAND
"Performance of your functions on a strict time schedule
is an essential function of your position. As you know, liv-
ing plant material that exists as part of a research project or
specimens for teaching must be cared for according to the
exact specifications provided. As little as thirty (30) minutes
sometimes makes the difference between a quality plant or
a dead plant. The importance of time management and
prompt completion of assigned duties is made all the more
important due to the limited staffing available within green-
house budget constraints.
It is critical that University plant material be cared for
four times a day to ensure healthy growth and survival. Such
a schedule is necessary due to the sheer mass and diversity
of plantlife maintained at the greenhouse. To ensure the
highest quality of care, the greenhouse has developed the
following schedule for watering and venting: morning
watering and venting, noon check, afternoon watering and
venting; an evening walk-through. If the plants are not
checked in a timely manner, the result is poor plant growth
or death. In the summer, if ventilation is not completed by
10:00 a.m., plants may be lost or become severely stressed.
Greenhouse temperatures can easily exceed 120 degrees F.
Soil sterilization occurs at 150 degrees F. In the winter
months, if vents are left open, plants freeze or are stressed
due to cold temperatures. Accordingly, it is imperative that
watering and venting be performed on a timely basis.
Similarly, it is imperative that pesticide applications be
made in a timely fashion. Due to EPA WPS laws and gen-
eral safety considerations, these applications must be coordi-
nated around classes, employees, researchers, and weather
conditions. If the applications are not performed as sched-
uled, windows of opportunity for spraying may be missed,
directly impacting on client service."
***
The Court finds that there really is no material issue, gen-
uine issue of material fact in this regard as to, at a minimum,
PALOTAI v. UNIVERSITY OF MARYLAND 17
the inability of the defendant to accommodate plaintiff as he
saw it; that is, that the reasonable accommodation sought by
the plaintiff was not in fact reasonable, even assuming, as
I say, that he had a disability that affected one of his major
life activities.
The Court finds, however, as a matter of law that the
plaintiff has not adduced a sufficient demonstration that he
was in fact unable to work in other positions or that his
learning disability in fact was the cause of his inability to
perform in a timely fashion. As I say, a reasonable accom-
modation, to the extent that it could have been given, was
given. It could not have been given as a matter of law in the
manner that plaintiff requested.
Mot. Summ. J. Hr’g Tr. at 58-62. We agree.4
IV
Accordingly, the District Court’s order of July 18, 2000, dismissing
the due process claims and its summary judgment in favor of the
defendants on the ADA claims will be affirmed.
AFFIRMED
4
Palotai asserted a retaliation claim in the District Court alleging that
he had been terminated on June 17, 1997, in retaliation for the filing of
his EEOC complaint on October 16, 1996. We do not understand him to
claim before us that the District Court’s summary judgment against him
on this claim was reversible error. We agree with the District Court’s dis-
position of this claim, however. Viewing the summary judgment record
as a whole, including the eight month period between the complaint and
Palotai’s termination, a trier of fact could not reasonably conclude that
the University’s articulated reasons for his reprimands and termination
were pretextual and that the real reason was activity protected by the
ADA.