Fink v. Richmond , 405 F. App'x 719 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2216
AUSTINE R. FINK,
Plaintiff - Appellant,
v.
JAMES E. RICHMOND, in his individual and official capacity;
CHARLES COUNTY BOARD OF EDUCATION; KEITH A. HETTEL, in his
individual and official capacity as Assistant Superintendant
for Human Resources,
Defendants – Appellees.
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PUBLIC JUSTICE CENTER; DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND; AMERICAN CANCER SOCIETY; AMERICAN CANCER
SOCIETY CANCER ACTION NETWORK; MARYLAND DISABILITY LAW
CENTER; LEGAL AID SOCIETY, EMPLOYMENT LAW CENTER,
Amici Supporting Appellant.
No. 09-2269
AUSTINE R. FINK,
Plaintiff - Appellee,
v.
JAMES E. RICHMOND, in his individual and official capacity;
CHARLES COUNTY BOARD OF EDUCATION; KEITH A. HETTEL, in his
individual and official capacity as Assistant Superintendant
for Human Resources,
Defendants – Appellants.
--------------------------------------
PUBLIC JUSTICE CENTER; DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND; AMERICAN CANCER SOCIETY; AMERICAN CANCER
SOCIETY CANCER ACTION NETWORK; MARYLAND DISABILITY LAW
CENTER; LEGAL AID SOCIETY, EMPLOYMENT LAW CENTER,
Amici Supporting Appellee.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cv-00714-DKC)
Argued: October 28, 2010 Decided: December 16, 2010
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant/Cross-Appellee. Leslie Robert
Stellman, HODES, PESSIN & KATZ, PA, Towson, Maryland, for
Appellees/Cross-Appellants. ON BRIEF: David L. Scher, THE
EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellant/Cross-
Appellee. Amy Folsom Kett, HOGAN LOVELLS US, LLP, McLean,
Virginia; Lisa Y. Settles, HODES, PESSIN & KATZ, PA, Towson,
Maryland, for Appellees/Cross-Appellants. Monisha Cherayil,
PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici Supporting
Appellant/Cross-Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Austine Fink, an art teacher employed by the Board of
Education of Charles County, Maryland (the Board), brought this
action against the Board and two of the Board’s school
administrators (collectively, the defendants). Fink alleged
that the defendants, in violation of § 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a), and Title I and Title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq., failed to accommodate her disability and retaliated
against her after she requested accommodations in her
employment. The district court awarded summary judgment to the
defendants and, upon our review, we affirm the district court’s
judgment.
I.
Austine Fink has been employed by the Board since 1996.
Between 1996 and 2006, Fink was an art teacher in the elementary
and middle schools of Charles County.
In March 2006, Fink was diagnosed with Barrett’s Esophagus
with High Grade Dysplasia. Because of this condition, Fink
underwent a surgical procedure during which her esophagus was
removed and her stomach was relocated under her throat. As a
result of the surgery, Fink cannot bend over without vomiting.
She also is unable to lift excessive weight or eat large meals.
Additionally, Fink has frequent bowel movements and occasionally
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experiences severe bouts of diarrhea. She is unable to walk
long distances at a quick pace.
After her surgery, Fink requested that the Board provide
various accommodations in her working conditions, including
frequent opportunities to eat small meals and to take bathroom
breaks. Fink also requested placement in a high school or an
administrative position that did not require her to bend over to
interact with students. In response to Fink’s request, the
Board assigned Fink to teach art in a high school.
In June 2007, Fink underwent surgery to repair a hernia.
After this surgery, Fink requested additional accommodations,
including, among others, assignment to a “fixed” classroom or to
an office location close to a bathroom.
The Board met with Fink the following month to discuss her
accommodation requests for the upcoming school year. After the
meeting, the Board assigned Fink to teach art at a high school
with the following accommodations: 1) access to nearby bathrooms
with the opportunity to obtain breaks on “short” notice; 2) the
opportunity to eat snacks during instructional periods; 3) the
absence of any homeroom or other non-instructional duties; 4)
the absence of any requirement that she push a cart or lift
heavy objects; 5) access to a locked area where she could keep
her personal belongings; and 6) a coordinator and “back-up”
coordinator to address accommodation concerns. The Board,
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however, denied Fink’s request that she be assigned to a “fixed”
classroom.
Based on the Board’s refusal to grant all her requested
accommodations, Fink did not return to work in October 2007.
The Board thereafter informed Fink that she would be “charged”
sick and personal leave for her absences until those leave
sources were exhausted, and that she would be placed on leave
without pay for any additional absences.
In July 2008, Fink requested and received a transfer within
the Charles County school system to the Robert D. Stethem
Educational Center, where she was assigned a “fixed” classroom.
Fink currently teaches art at this facility.
In her complaint filed in the district court, Fink
contended that the Board failed to reasonably accommodate her
disability and retaliated against her by refusing to assign her
to teaching positions that became vacant at McDonough High
School and at Thomas Stone High School. Fink alleged that the
Board assigned her to a less-suitable teaching position, which
required her to teach substitute classes, Spanish classes, and
“in-school retention,” 1 and did not permit her to have a “fixed”
classroom. Fink also alleged that the Board retaliated against
1
An “in-school retention” teaching assignment involved the
supervision of students who were suspended from attending class.
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her by withholding payment to her in December 2006 and January
2007 and by placing her on administrative leave without pay in
October 2007.
II.
The district court concluded that Fink is disabled, within
the meaning of the ADA and the Rehabilitation Act, because her
physical impairment substantially limits her ability to eat. As
noted by the district court, Fink has no esophagus and her
stomach is “quite small.” The district court observed that,
therefore, Fink needs to eat frequent small meals, and her
condition often results in “excessive diarrhea, nausea, and
vomiting.”
The district court held, however, that Fink’s physical
impairment does not substantially limit her ability to walk,
because her condition “only affects her ability to walk quickly
or for long distances.” The district court further observed
that, at the time Fink filed her claim, the acts of “bending and
lifting” were not “major life activities,” within the meaning of
the ADA. The district court explained that although the ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553,
added “bending and lifting” to the list of “major life
activities,” those amendments did not have retroactive effect
and, therefore, did not apply to Fink’s case.
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After concluding that Fink was disabled because of eating
limitations resulting from the surgical relocation of her
stomach, the district court held that the Board reasonably
accommodated Fink’s disability. The district court explained
that the Board is “only required to offer a reasonable
accommodation, not the perfect or [Fink’s] preferred
accommodation.” Accordingly, the district court held that
Fink’s placement as a full-time art teacher in a high school
“satisfied [the Board’s] duty to reasonably accommodate [Fink]
regardless of her desire for a different placement.”
The district court also addressed the Board’s action
assigning Fink to non-teaching duties in the spring of 2007.
The district court concluded this objection lodged by Fink
amounted to a mere job complaint, rather than a failure to
provide reasonable accommodations. The district court also
rejected Fink’s claim that the Board was required to grant
Fink’s request for a “fixed” classroom in order to accommodate
her need to eat frequent meals and take regular bathroom breaks.
The district court held that the Board reasonably accommodated
Fink by permitting her to eat during class periods and by
assigning her to teach in classrooms that were located close to
bathrooms.
The district court also granted summary judgment to the
defendants on Fink’s retaliation claim, concluding that the
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defendants presented non-discriminatory reasons for withholding
payment to Fink for the period at issue. The district court
stated that the defendants withheld payment to Fink from
December 2006 through February 2007 based on a calculation error
regarding Fink’s sick leave, and that the defendants placed Fink
on administrative leave without pay because Fink refused to
return to work in October 2007. As explained by the district
court, Fink failed to show that the defendants’ reasons for
withholding payment to her were pretextual. 2 The district court
also held that Fink failed to show that the defendants’ refusal
to assign her to the teaching positions at Thomas Stone High
School and McDonough High School constituted an adverse
employment action. Fink timely appealed from the district
court’s judgment. 3
2
In addition, the district court held that the Eleventh
Amendment does not bar Fink’s claims, and that Title II of the
ADA applies to this case. The Board challenges these rulings in
its cross-appeal, stating that we should address the Board’s
arguments only if the Court reverses any aspect of the district
court’s judgment. In view of our decision affirming the award
of summary judgment in favor of the defendants, we do not
address those issues.
3
Fink challenges the district court’s grant of summary
judgment as to her claims under Title II of the ADA. Fink does
not appeal the district court’s judgment on her claims under
Title I of the ADA.
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III.
We review the district court’s award of summary judgment de
novo. Waller v. City of Danville, 556 F.3d 171, 174 (4th Cir.
2009). When an employee is “disabled,” within the meaning of
the ADA and the Rehabilitation Act, an employer must provide
“reasonable accommodations” to the disabled employee unless the
employer can demonstrate that the provision of such
accommodations would impose an “undue hardship.” EEOC v. Sara
Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001) (quoting 42 U.S.C.
§ 12112(b)(5)(A)); see Doe v. Univ. of Md. Medical Sys. Corp.,
50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining that the same
elements apply to the ADA and § 504 of the Rehabilitation Act).
Importantly, however, the ADA and the Rehabilitation Act do not
require that an employer provide a disabled employee with a
perfect accommodation or an accommodation most preferable to the
employee. See Gile v. United Airlines, Inc., 95 F.3d 492, 499
(7th Cir. 1996).
We have reviewed the record, the briefs, and arguments
presented by the parties in this appeal. Based on the thorough
reasons articulated by the district court, we hold that Fink
failed to raise a genuine issue of material fact regarding the
accommodations that the Board provided for her disability, and
that those accommodations were reasonable and sufficient under
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the controlling requirements of the ADA and the Rehabilitation
Act. See Sara Lee Corp., 237 F.3d at 350.
We also agree with the district court’s reasoning in
awarding summary judgment to the defendants on Fink’s
retaliation claims. Fink failed to present evidence that the
defendants gave a pretextual explanation for withholding payment
to Fink for the brief period at issue. Fink also failed to
present evidence that the defendants’ refusal to consider her
for two teaching vacancies constituted an adverse employment
action. We therefore affirm the award of summary judgment to
the defendants based on the reasoning provided by the district
court. See Fink v. Richmond, No. 8:07-cv-00714-DCK (D. Md.
Sept. 29, 2009).
AFFIRMED
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