Crabill v. Charlotte Mecklenburg Board of Education

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1539
PAULA CRABILL,
Plaintiff - Appellant,
v.
CHARLOTTE MECKLENBURG BOARD OF EDUCATION,
Defendant - Appellee.
No. 10-1553
PAULA CRABILL,
Plaintiff - Appellee,
v.
CHARLOTTE MECKLENBURG BOARD OF EDUCATION,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cv-00598-MR-DSC)
Argued: March 23, 2011 Decided: April 20, 2011
Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 10-1539 affirmed in part, vacated in part, and remanded; No.
10-1553 affirmed by unpublished opinion. Judge Davis wrote the
majority opinion, in which Senior Judge Hamilton joined. Judge
Niemeyer wrote a dissenting opinion.
ARGUED: S. Luke Largess, TIN, FULTON, WALKER & OWEN, PLLC,
Charlotte, North Carolina, for Appellant/Cross-Appellee. Mason
Gardner Alexander, Jr., FISHER & PHILLIPS, LLP, Charlotte, North
Carolina, for Appellee/Cross-Appellant. ON BRIEF: Margaret M.
Kingston, FISHER & PHILLIPS, LLP, Charlotte, North Carolina, for
Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
Appellant/Cross-Appellee Paula Crabill, a former high
school guidance counselor for Appellee/Cross-Appellant Charlotte
Mecklenburg Board of Education (“School Board”), filed this
action asserting that the School Board failed to offer her
reasonable accommodations for her disability, resulting in her
premature retirement from employment, and thereby violated the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et
seq. After the parties filed cross-motions for summary judgment,
the district court applied the doctrine of equitable tolling to
deem Crabill’s lawsuit timely-filed even though Crabill filed
suit beyond the 90-day period provided by the ADA. The district
court concluded on the merits, however, that Crabill could not
persuade a reasonable jury to find in her favor on all the
elements of her ADA claims and therefore granted summary
judgment to the School Board. We hold, for the reasons set forth
within, that the district court properly applied the doctrine of
equitable tolling but erred in granting summary judgment to the
School Board for Crabill’s post-April 2007 ADA claim.
Accordingly, we affirm in part and vacate in part the district
court’s judgment, and remand the case for further proceedings.
3
I.
We review the grant of summary judgment de novo. Waller v.
City of Danville, 556 F.3d 171, 174 (4th Cir. 2009). Summary
judgment is appropriate only if, taking the evidence and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party, “no material facts are
disputed and the moving party is entitled to judgment as a
matter of law.” Ausherman v. Bank of Am. Corp., 352 F.3d 896,
899 (4th Cir. 2003); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).
A.
In September 1998 Crabill commenced work as a guidance
counselor at Myers Park High School. Her job duties included,
but were not limited to, assisting students with their course
selections and typing recommendation letters for college
applicants. Generally, the school divided the students
alphabetically in order to distribute students to specific
counselors but certain students, such as the International
Baccalaureate (“IB”) students, or students for whom English was
a second language, were assigned to a counselor without regard
to the alphabet. Myers Park had one of the largest student
populations in the Charlotte-Mecklenburg area. Consequently, the
school had the highest average number of students assigned to
any one counselor.
4
In July 2002, Dr. William Anderson became the principal at
Myers Park. When Anderson started, there were only three
counselors at the high school, including Crabill, for a student
population of more than 2500. During Anderson’s first year as
principal, Crabill served as the interim department chair of the
school’s guidance department.
Due to the additional duties assigned to her as department
chair and then-undiagnosed medical problems, Crabill requested
of Anderson that he reduce her caseload. Anderson declined to
institute any changes in the manner in which students were
assigned to counselors. Anderson did, however, hire an
additional three counselors, bringing the total number to six.
In April 2003 Crabill asked to be relieved of department chair
duties the following school year.
In May 2003 Crabill was diagnosed with Chari Malformation
(“Chari I”). Chari I is a malformation of the brain stem that
impedes the flow of cerebral-spinal fluid. Crabill’s symptoms
included weakness, tingling and numbness in her arms and legs,
sensations of electric shock and burning, dizziness, memory
problems, and vertigo. In particular, when Crabill typed, her
arms would become weak and her vertigo increased.
After Crabill was diagnosed with Chari I, she met with
Anderson to again request an adjustment in her caseload for the
following school year. Crabill also requested that she not be
5
required to carry heavy items and be excused from activities
that would require her to drive at night. Anderson agreed to
provide Crabill with accommodations to address her difficulties
with driving and carrying heavy items but did not agree to
reduce Crabill’s case load. The day after meeting with Crabill,
and with Crabill’s support, Anderson named two other counselors
as the guidance department co-chairs. Anderson reduced their
caseloads because of their new responsibilities.
In July 2003, Crabill wrote Anderson an e-mail explaining
that she needed a reduced caseload “because the work demands
exasperated [sic] [her] condition.” J.A. 222. Crabill told
Anderson that it was “medically necessary” for her caseload to
be reduced. Id. Anderson responded the next day that he would
not make any decisions until he had the chance to discuss the
request with the new department co-chairs. The following day,
Anderson “yelled” at Crabill for asking about her caseload. J.A.
604. He wrote a follow-up e-mail:
I was very frustrated with you today and continue to
be frustrated by your continued obsession/perseverance
over [the department co-chair’s] caseload and the
fairness of her numbers. It seems that is [sic] it is
very difficult for you to move past last year and
accept the fact that [the co-chairs] and I made the
decisions regarding the caseload for the guidance
department.
Paula, you must be a team player and accept the fact
that [the co-chairs] will be the department chairs
this year. I cannot have you second guessing their
6
decisions, the intent of their decisions, and
revisiting issues that are in the past tense . . . .
I hope that in the future you will spend your precious
time and energy serving our students, parents and
staff members more efficiently and effectively.
J.A. 224.
The following month, Crabill obtained a note from her
treating neurologist stating that her caseload needed to be kept
between 250 and 300 students. This range reflected the school
district’s average workload for high school counselors. However,
at Myers Park, the average caseload was 422 students per
counselor. Anderson declined to reduce Crabill’s caseload,
citing the increase to other counselors’ caseloads it would
cause. As a result, Crabill had approximately 310 students for
the 2003-2004 school year.
In July 2004, the department chair told Crabill that she
would have 460 students for the 2004-2005 school year. Crabill
wrote to Anderson and the assistant principal that she did not
believe she could manage 460 students, especially with her
problems with typing due to her Chari I diagnosis. As a
substitute, Crabill proposed that she take the IB students,
which would reduce the number of letters she would need to type.
Anderson responded that he found “frustrating” all the “conflict
and angst” she was causing and how “[s]mall tasks and requests
become mountains.” J.A. 131. Anderson also stated that Crabill
7
needed to work in the “best interest of our students and school
instead of comparisons as to who works the hardest or has the
heaviest load.” J.A. 131. After receiving Anderson’s e-mail,
Crabill helped make the caseload divisions among the counselors.
In spring 2005, Crabill applied for counseling openings at
two middle schools and asked the School Board’s human resources
department to assist her. Crabill told Anderson that she was
seeking a transfer and asked Anderson not to disclose her
medical diagnosis. Crabill did not receive either position.
During the summer of 2005, Lyn Shropshire became the
counseling department chair at Myers Park. Crabill spoke with
Shropshire about Anderson and her medical problems. For the
2005-2006 school year, Crabill was responsible for the
additional duties of “Future Center” and “Summer Ventures.”
These additional responsibilities were considered less time-
consuming than those of other counselors. Consequently, Crabill
was assigned even more students, the highest of all of the
counselors. After Crabill questioned her caseload, she was
called into a meeting with Anderson, the vice-principal and
Shropshire and admonished for questioning the work distribution.
In November 2005, Crabill again sent Anderson a medical
note from her doctor requesting between 250-300 students.
Anderson responded by asking Crabill if she wanted him to begin
searching for a transfer to a middle school for her. Crabill
8
told Anderson that she did not want to transfer. Anderson also
sent Crabill the so-called “matrix” that was used to assign
students and other tasks to counselors. In addition, Shropshire
sent Crabill an e-mail on November 16, 2005 admonishing Crabill
for questioning her caseload.
Shortly thereafter, Principal Anderson was promoted to a
position outside of Myers Park. Before he left the school,
Anderson e-mailed his replacement, Tom Spivey, about Crabill
because he wanted to give Spivey a “heads up on this counselor
problem.” J.A. 255. Anderson warned Spivey that “[Crabill] will
probably come to you asking for consideration to reduce her
caseload (329) because of her so called ‘medical’ problems,” and
“strongly recommend[ed]” that Spivey “not reduce her caseload.”
J.A. 255. Anderson also forwarded Crabill’s earlier question
about her doctor’s note and stated,
I just wanted you [to] have a greater understanding of
how Paula Crabill operates. She has very selective
memory and will try to make you believe that she
doesn’t really care about caseloads, but her
recollection of certain issues is very Disneyland
like, Lin [sic] is a good dept. chair and she, like
me, is fed up with paula’s [sic] whining and end runs.
J.A. 250.
Several hours later, Anderson wrote to Crabill, with a copy
to Spivey:
You seem obsessed with someone else having a bigger
caseload than you. If you feel the high caseload is
too extreme for you, I would suggest that you
9
seriously consider a transfer to a middle school or
elementary school for 2006-07. There is too much
energy and precious work time being wasted by you and
other counselors addressing this issue.
J.A. 253.
Crabill approached Spivey in March 2006. She explained to
Spivey her condition and her prior requests for a reduced
caseload. Crabill requested he consider her request for the
following school year. Two weeks later, Crabill received an
envelope through the school system’s courier system with no
return address or cover letter, containing a brochure about a
seminar on managing emotional problems. Crabill was upset by the
brochure and believed Anderson had sent it. Anderson denied
having anything to do with the brochure.
On July 26, 2006, Crabill wrote Spivey requesting three
specific accommodations: (1) a flexible work schedule; (2) a cap
on her caseload as close to 300 students as possible; and (3)
voice recognition software for typing. Crabill was aware that
Spivey would be on vacation the week he received the letter.
Shortly thereafter, Crabill was assigned 20 more students than
the department average.
On August 9, 2006, Crabill sent Spivey an e-mail and
delivered another copy of the letter. In mid-September 2006,
Shropshire requested a meeting with Crabill, the vice principal,
Spivey and another counselor to discuss “departmental concerns.”
10
J.A. 283. In addition, Spivey attended a guidance department
meeting on September 20, 2006 and took notes that showed some
members of the department were upset at the way the
administration was treating Crabill.
On October 9, 2006, Spivey wrote to human resources that he
had a counselor with documented health-related issues, including
a doctor’s note that she would benefit from a workload
reduction. He asked that human resources review the matter and
provide feedback. Spivey also told human resources that he
thought Crabill should be transferred to a middle or elementary
school.
Shortly thereafter, Crabill slipped and fell at school,
causing her to miss work for several weeks. After learning of
rumors that Crabill was going to be transferred, Crabill’s
counsel wrote a letter to human resources, warning the School
Board that a forced job relocation due to a workplace injury
violated North Carolina’s workers’ compensation laws.
The parties dispute the extent to which Crabill and Spivey
spoke to discuss the possibility of her moving to a middle
school position as an accommodation to address her medical
concerns. The School Board contends that Spivey and Crabill had
several informal conversations about Crabill moving to a middle
school position. Appellee Br. at 13. Crabill asserts, to the
contrary, that she never had a conversation with Spivey about
11
moving to a middle school as an accommodation. Appellant Br. at
21.
In November 2006, two human resources employees, Kathy
Augar and Regina George, began inquiring into accommodations for
Crabill. George asked Spivey if the alphabetic distribution of
caseloads could be rotated so that no one counselor had the
largest caseload every year. Spivey responded that it could
work, but that the school preferred keeping counselors with the
same students for multiple years.
On April 12, 2007, Regina George met with Crabill and
Crabill told George she was willing to transfer, and in
particular to a middle school, where the typing task of
counselors was considerably lighter. George learned of several
vacancies for the following school year including two middle
schools, five or six high schools, and a new high school that
did not yet have a senior class. Nevertheless, George told
Crabill only about the opening at the new high school. Crabill
went to interview for the position but learned upon arriving
that the position had already been filled.
In a follow up meeting with Crabill, George requested
additional medical documentation, which Crabill obtained.
Crabill did not meet with George again until June 11, 2007. The
two discussed several accommodations: (1) a flexible work
schedule; (2) regular work breaks; (3) a cap on student
12
caseload; (4) a strict limit on additional duties assigned; and
(5) voice recognition software. The School Board did not respond
to any of Crabill’s proposals for a redistribution of the
caseload.
For the 2007-08 school year, Crabill received 379 students
in her caseload, the average number of students as other
counselors. Feeling overwhelmed by her job duties, Crabill
retired on disability in January 2008.
B.
Crabill filed her charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) on February 20, 2007.
On February 26, 2007, the EEOC mailed the charge to the School
Board. More than a year later, on April 3, 2008, an EEOC
investigator met with Crabill’s counsel.
On April 22, 2008, the EEOC mailed Crabill a right-to-sue
notice. As discussed below, the district court found that
neither Crabill nor her counsel ever received the notice. On
August 19, 2008, Crabill’s counsel wrote a letter to the EEOC
referring to the prior meeting and asking to meet with the EEOC
legal staff about the case. The EEOC responded by calling
Crabill’s counsel to inform him that the EEOC had dismissed the
charge and issued the right-to-sue letter on April 22, 2008.
This conversation was the first time Crabill’s counsel learned
the letter had been mailed in April. After requesting the EEOC
13
resend a copy of the letter, Crabill received the EEOC dismissal
and notice of her right-to-sue in September 2008. The EEOC
authenticated its file of Crabill’s charge and it does not
contain records indicating the right-to-sue letter sent to
Crabill was returned, unable to be delivered or otherwise not
received by Crabill. This action was filed on November 12, 2008.
II.
A.
We first address the School Board’s appeal from the
district court’s application of equitable tolling. The School
Board contends that Crabill’s suit was untimely and that the
district court erred in applying equitable tolling to excuse
Crabill’s delay in filing suit. In the non-habeas context, we
review the district court’s decision to utilize equitable
tolling for an abuse of discretion. Rouse v. Lee, 339 F.3d 238,
247 n.6 (4th Cir. 2003) (en banc); see also Chao v. Va. Dept. of
Transp., 291 F.3d 276, 279-80 (4th Cir. 2002) (“We review the
district court’s ruling on equitable tolling for abuse of
discretion.”). While the School Board urges us to review the
district court’s decision de novo, utilizing an abuse of
discretion standard of review is in accord with our sister
circuits. See Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d
1, 23 (1st Cir. 2007) (reviewing for abuse of discretion the
14
district court’s decision whether to apply equitable tolling);
Alli-Balogun v. U.S., 281 F.3d 362, 367-68 (2d Cir. 2002)
(same); Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002)
(same); Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003)
(same); Harms v. I.R.S., 321 F.3d 1001, 1006 (10th Cir. 2003)
(same). But see Seay v. Tenn. Valley Auth., 339 F.3d 454, 469
(6th Cir. 2003) (“We review a district court’s decision to grant
or deny equitable tolling de novo when the facts are undisputed
or the district court rules, as a matter of law, that equitable
tolling is not available; in all other circumstances we review
for an abuse of discretion.”).
B.
After a complainant files a charge with the EEOC, the ADA
requires the EEOC to “notify the person aggrieved and within
ninety days after the giving of such notice a civil action may
be brought against the respondent.” 42 U.S.C. § 2000e-5(f)(1).
The 90-day filing requirement is “not a jurisdictional
prerequisite to suit in federal court, but a requirement that,
like a statute of limitations, is subject to waiver, estoppel,
and equitable tolling.” Laber v. Harvey, 438 F.3d 404, 429 n.25
(4th Cir. 2006) (quoting Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982)). Here, the right-to-sue notice was
mailed to Crabill on April 22, 2008, and the law presumes its
receipt on April 25, 2008. Baldwin County Welcome Ctr. v. Brown,
15
466 U.S. 147, 148 n.1 (1984) (for constructive receipt purposes,
courts presume a mailing reaches the intended recipient within
three days). Thus, the 90-day period ended on July 24, 2008, and
Crabill’s complaint was therefore untimely filed. Having
determined that Crabill’s filing was untimely, the district
court concluded that equitable tolling of the filing period was
appropriate.
Equitable tolling applies in two general kinds of
situations. In the first, the complainant has been induced or
tricked by his adversary’s misconduct into allowing the filing
deadline to pass. Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 96 (1990); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000). In the second, “extraordinary circumstances beyond the
plaintiffs’ control made it impossible to file the claims on
time.” Harris, 209 F.3d at 330 (quoting Alvarez-Machain v.
United States, 107 F.3d 696, 700 (9th Cir. 1996)).
Equitable tolling is a discretionary doctrine that “turns
on the facts and circumstances of a particular case.” Harris,
209 F.3d at 330 (quoting Fisher v. Johnson, 174 F.3d 710, 713
(5th Cir. 1999)). Federal courts have typically extended
equitable relief only sparingly. Irwin, 498 U.S. at 96; see also
Harris, 209 F.3d at 330. Consequently, “any resort to equity
must be reserved for those rare instances where—due to
circumstances external to the party’s own conduct—it would be
16
unconscionable to enforce the limitation period against the
party and gross injustice would result.” Harris, 209 F.3d at
330.
Here, the district court concluded that reasonable grounds
existed such that equitable tolling of the filing period is
appropriate. Crabill v. Charlotte-Mecklenburg Bd. of Educ., 708
F. Supp. 2d 542, 554-55 (W.D.N.C. 2010). In particular, the
court relied on Crabill’s sworn statement that she was home the
entire week of April 21, 2008, and checked the mail every day of
that week; that she routinely checks her mailbox everyday; and
that she always asked the post office to hold her mail when she
went out of town. Id. On this showing, the district court
concluded that Crabill’s testimony established that she was
“extremely diligent in checking her mail for any correspondence
from the EEOC.” Id. at 554. In addition, the court concluded
that Crabill was diligent in maintaining contact with her
counsel regarding the status of her case. Consequently, the
district court concluded that Crabill “presented sufficient
evidence of circumstances ‘beyond [her] control or external to
[her] own conduct . . . that prevented [her] from filing on
time.” Id. at 555 (quoting United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004)).
On this record, we cannot say that the district court
abused its discretion in holding Crabill successfully rebutted
17
the presumption of actual receipt of the right-to-sue notice.
The court found that Crabill was diligent in watching her mail
and staying in contact with her counsel regarding her case; we
have no warrant in deeming these findings clearly erroneous. We
are persuaded that Crabill’s failure to receive the letter was
the result of circumstances external to her own conduct. In
affirming the application of equitable tolling, we agree with
the Seventh Circuit that a “plaintiff should not lose the right
to sue because of fortuitous circumstances or events beyond
[her] control which delay receipt of the EEOC’s notice.” DeTata
v. Rollprint Packaging Products, 632 F.3d 962, 969 (7th Cir.
2011) (quotation omitted). 1
III.
Having concluded the district court did not err in applying
equitable tolling to excuse Crabill’s untimely filing of this
action, we examine the propriety of the district court’s
rejection of Crabill’s reasonable accommodation claim as a
matter of law.
1
In so concluding, we echo the sentiment of our sister
circuit and “note that if the EEOC had followed its former
practice of sending right-to-sue letters by certified mail, this
dispute would, in all likelihood, have never arisen.” Duron v.
Albertson’s LLC, 560 F.3d 288, 291 (5th Cir. 2009).
18
The ADA prohibits discrimination against a “qualified
individual with a disability” with respect to “job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C.A. §
12112(a).
One form of discrimination prohibited by the ADA is a
failure to make a reasonable accommodation. See 42 U.S.C.A. §
12112(b)(5). In a failure-to-accommodate case, an employee
establishes a prima facie case by showing “(1) that he was an
individual who had a disability within the meaning of the
statute; (2) that the [employer] had notice of his disability;
(3) that with reasonable accommodation he could perform the
essential functions of the position . . . ; and (4) that the
[employer] refused to make such accommodations.” Rhoads v.
F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001). The ADA
provides a definition of the term “reason accommodation”:
The term “reasonable accommodation” may include-
(A) making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities; and
(B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices,
appropriate adjustment or modifications of
examinations, training materials or policies, the
provision of qualified readers or interpreters, and
19
other similar accommodations for individuals with
disabilities.
42 U.S.C.A. § 12111(9).
Once an employer’s responsibility to provide a reasonable
accommodation is triggered, it may be necessary for the employer
to engage in an “interactive process” to determine the
appropriate accommodation under the circumstances. 29 C.F.R. §
1630.2(o)(3). See also Taylor v. Phoenixville School Dist., 184
F.3d 296, 311-12 (3d Cir. 1999) (finding that “both parties have
a duty to assist in the search for appropriate reasonable
accommodation and to act in good faith”); Haneke v. Mid-Atlantic
Capital Mgmt., 131 Fed. Appx. 399, *1 (4th Cir. 2005)
(unpublished) (finding that “[i]mplicit in the fourth element is
the ADA requirement that the employer and employee engage in an
interactive process to identify a reasonable accommodation”);
Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.
1996) (explaining that “the employee’s initial request for an
accommodation . . . triggers the employer’s obligation to
participate in the interactive process of determining one”);
Jakubowski v. Christ Hosp., 627 F.3d 195, 202 (6th Cir. 2010).
As the Seventh Circuit has noted:
No hard and fast rule will suffice, because neither
party should be able to cause a breakdown in the
process for the purpose of either avoiding or
inflicting liability. Rather, courts should look for
signs of failure to participate in good faith or
failure by one of the parties to make reasonable
20
efforts to help the other party determine what
specific accommodations are necessary. A party that
obstructs or delays the interactive process is not
acting in good faith. A party that fails to
communicate, by way of initiation or response, may
also be acting in bad faith. In essence, courts should
attempt to isolate the cause of the breakdown and then
assign responsibility.
Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135-36
(7th Cir. 1996).
To be sure, and contrary to Crabill’s contentions, an
employee cannot base a reasonable accommodation claim solely on
the allegation that the employer failed to engage in an
interactive process. See Rehling v. City of Chicago, 207 F.3d
1009, 1016 (7th Cir. 2000). Rather, the employee must
demonstrate that the employer’s failure to engage in the
interactive process resulted in the failure to identify an
appropriate accommodation for the disabled employee. See id. In
addition, “[a]n employer is not obligated to provide an employee
the accommodation he or she requests or prefers; the employer
need only provide some reasonable accommodation.” Crawford v.
Union Carbide Corp., 202 F.3d 257 (4th Cir. 1999) (unpublished)
(quoting Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th
Cir. 1998)).
Here, the district court correctly concluded that the ADA
does not require an employer to reallocate essential job
functions or assign an employee “permanent light duty”. Crabill,
21
708 F. Supp. 2d at 556 (quoting Carter v. Tisch, 822 F.2d 465,
467 (4th Cir. 1987)). In particular, reducing Crabill’s caseload
would have shifted her duties to other counselors in the
department, thereby increasing their workload. As the district
court noted, “an accommodation that would require other
employees to work harder is unreasonable.” Crabill, 708 F. Supp.
2d at 556 (quoting Mason v. Avaya Communications, Inc., 357 F.3d
1114, 1121 n.3 (10th Cir. 2004)). See also Rehrs v. Iams Co.,
486 F.3d 353, 357 (8th Cir. 2007); 29 C.F.R. § 1630.2(p)(2)(v)
(impact to other employees on their ability to perform their
duties is a relevant factor in determining the reasonableness of
an accommodation).
More persuasively, Crabill also argues that the School
Board could have accommodated her disability by transferring her
to another school, especially a middle school, where she could
have had a reduced caseload with different responsibilities.
Acknowledging the validity of this assertion, the district court
concluded, in rejecting the claim, that no reasonable jury could
conclude that the School Board failed to offer Crabill the
accommodation of a transfer to a different school. Crabill, 708
F. Supp. 2d at 557. The court reasoned that Crabill’s refusal of
22
a medical transfer in 2005 supported its conclusion. 2 While the
district court was surely correct in its legal assessment as to
the period before the spring of 2007, we disagree with its
conclusion that Crabill failed to generate a genuine dispute of
material fact as to the availability of a reasonable
accommodation by transfer for the period starting with the 2007-
2008 school year.
On April 12, 2007, Crabill told Regina George that she
would accept a transfer as a reasonable accommodation, including
transferring to a middle school. After meeting with Crabill,
George sought assistance in reassigning Crabill “to a middle
school in an effort to meet her medical accommodation request.”
J.A. 309-10. George learned of vacancies at two middle schools
and five or six high schools, including a new school that did
not yet have a senior class. Despite learning of vacancies at
two middle schools, George only told Crabill about one of the
2
In addition, the court reasoned that when Crabill’s
counsel wrote to the School Board in November 2006 warning she
would seek an injunction if a transfer was attempted, Crabill
was expressly rejecting a transfer as a reasonable
accommodation. The School Board’s contention that the November
2006 letter “blocked” any effort to accommodate Crabill with a
transfer to another school is certainly a plausible view of the
record, but it does not foreclose Crabill’s claim as a matter of
law. Crabill contends, equally plausibly, that the letter was
written in regards to Crabill’s rights under the state workers’
compensation law, not the ADA. We agree with Crabill that this
dispute is genuine and material and is proper grist for a jury.
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high school vacancies. For these reasons, we are persuaded that
a reasonable jury could conclude that the School Board failed to
offer Crabill the accommodation of a transfer to a different
school after her April 12, 2007 request.
Finally, Crabill asserted a separate count in her complaint
to contend that the School Board intentionally discriminated
against her in violation of the ADA, namely, that she was
constructively discharged from her position by virtue of her
forced disability retirement in the absence of a reasonable
accommodation. We have held that 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).
We are persuaded that Crabill has generated a genuine
dispute of material fact as to whether her alleged premature
retirement is causally related to the School Board’s failure to
provide a reasonable accommodation – a transfer. Contrary to the
district court’s legal conclusion, a reasonable jury could
conclude that the School Board’s culpable failure to accommodate
Crabill’s transfer amounted to an adverse employment action
proximately prompting her early retirement. As with all elements
of her claim, Crabill bears the risk of non-persuasion as to
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proof of any damages flowing from her allegedly premature
retirement from employment.
IV.
In conclusion, we hold that: (1) the district court did not
abuse its discretion in applying equitable tolling to allow
Crabill’s belated filing of her ADA claim; (2) the district
court erred in granting the School Board’s motion for summary
judgment in regard to Crabill’s post-April 12, 2007 reasonable
accommodation claim; and (3) the district court erred insofar as
it precluded Crabill from seeking to show that her alleged
premature retirement was a proximate consequence of the School
Board’s failure to offer a reasonable accommodation in the form
of a transfer to another school for school year 2007-2008.
Accordingly, we affirm in part and vacate in part the district
court’s judgment and we remand the case for further proceedings
consistent with this opinion.
No. 10-1539 AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
No. 10-1553 AFFIRMED
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NIEMEYER, Circuit Judge, dissenting:
The record in this case shows that Crabill’s action was
untimely filed. The EEOC issued a right-to-sue letter on April
22, 2008, and mailed it to Crabill at her given address. The
evidence also shows that the EEOC did not receive any return of
the mail or any indication that the U.S. Postal Service was
unable to deliver it. Crabill did not file suit until November
12, 2008, more than 90 days after the EEOC sent its right-to-sue
letter. To justify her untimely filing of suit, Crabill states
that she did not receive the right-to-sue letter, although she
checked her mail regularly. In this circumstance, I would find
it an abuse of discretion to conclude that the simple denial of
receipt of a letter tolls the statute of limitations. This
conclusion, I am afraid, too readily undermines the requirements
established by Congress in 42 U.S.C. § 2000e-5(f)(1), where it
fixed the limitations period at 90 days.
On the merits, I would find summary judgment appropriate
because Crabill did not establish a prima facie case that the
School Board failed to provide her with a reasonable
accommodation for her disability. The Americans with
Disabilities Act requires employers to make reasonable
accommodations for employees with disabilities, 42 U.S.C. §
12112(b)(5)(A), and reassignment to a vacant position may be a
reasonable accommodation, 29 C.F.R. § 1630.2(o)(2)(ii). Because
26
the employee has the burden of proving that an accommodation is
reasonable, U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02
(2002), I would hold, in line with the Second and Third
Circuits, that an employee has the burden of showing that a
vacancy existed at the time a transfer was needed. See Jackan
v. New York State Dept. of Labor, 205 F.3d 562, 567 (2d Cir.
2000); Shapiro v. Township of Lakewood, 292 F.3d 356 (3d Cir.
2002). Here, the only evidence Crabill presented tended to show
that vacancies may have existed at a previous time, but did not
show that those vacancies existed at the time she wanted to
transfer. Therefore, I would affirm the judgment of the
district court.
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