Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249 (1/2006) James Heiko brings suit against his former employer, Colombo Savings Bank, alleging a failure to promote and constructive discharge on the basis of disability. At the time of the alleged discrimination, Heiko suffered from end-stage renal disease - near complete kidney failure — and spent three afternoons per week, for a total of twelve hours, attached to a dialysis machine that removed fatal toxins from his blood. The district court granted summary judgment for Colombo, holding that Heiko was not disabled under the Americans with Disabilities Act (ADA) because the elimination of bodily waste is not a "major life activity." See 42 U.S.C. § 12102(2)(A) (2000). It also held in the alternative that even if Heiko was disabled, he had not proffered facts sufficient to support a finding of discrimination. We hold that elimination of bodily waste is a "major life activity" within the meaning of the ADA. With respect to the allegations of discrimination, summary judgment was improper on the claim of failure to promote, because Heiko has presented a strong prima facie case of disability discrimination and considerable evidence of job qualifications superior to those of the person selected in his stead. Summary judgment was proper, however, on the allegation of constructive discharge. We therefore affirm in part, reverse in part, and remand for further proceedings.

Taylor v. Federal Express Corp., 429 F.3d 461, (11/2005) To hold that in the face of such evidence a factfinder could conclude that Taylor was substantially limited in the major life activity of working would be to ignore the Supreme Court's recent directive in Toyota. There the Court emphasized that the terms "substantially limits" and "major life activity" "need to be interpreted strictly to create a demanding standard for qualifying as disabled." Toyota, 534 U.S. at 197; see also Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (holding that evidence that plaintiff's impairment caused a 47 percent loss of access to the job market was insufficient to establish a disability). Given that Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work, or for that reason renders him disabled for purposes of the ADA.

Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474 (6/2005) We conclude that the Eleventh Amendment poses no bar to Constantine's claims because Congress validly abrogated the States' immunity to suit under Title II of the ADA; the State waived its immunity to suit under § 504 of the Rehabilitation Act with respect to GMU; and the Ex parte Young doctrine permits an action for prospective injunctive relief to remedy a violation of § 504. We further conclude that Constantine's complaint adequately alleges claims for disability discrimination in violation of Title II of the ADA and § 504 of the Rehabilitation Act, as well as a First Amendment retaliation claim under § 1983

Laird v. Redwood Trust LLC, 392 F.3d 661 (12/2004) "[i]n alterations, accessibility to . . . dining areas . . . is not required provided that the same services and decor are provided in an accessible space usable by the general public and are not restricted to use by people with disabilities." 28 C.F.R. pt. 36, app. A § 5.4. The term "alteration" is defined as "a change to a building . . . [including] remodeling, renovation, rehabilitation, reconstruction, historical restoration, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions." 28 C.F.R. pt. 36, app. A § 3.5. Though Redwood Trust concedes that the renovations to the building were extensive, they are, nonetheless, renovations. There is no evidence in the record of any new construction; all of the renovations involved changes to the existing structure to allow it to function as a restaurant and night club. We are of opinion that the lengthy set of terms defining alteration were intended to cover renovations, like those to the Redwood Trust building, that are extensive but did not involve new construction. See 28 C.F.R. pt. 36, app.A, § 3.5 Accordingly, we find that the renovations to the Redwood Trust building were "alterations" under guideline §§ 3.5 and 5.4. We also find that the record shows no difference in the services or decor between the first and second floor dining areas. Therefore, we find that the district court's grant of summary judgment was proper.

Rohan v. Networks Presentations LLC, 375 F.3d 266 (7/2004) Because Rohan has failed to demonstrate that she is substantially limited in a major life activity, or that Networks regarded her as substantially limited, she is not within the ADA's protected class. As such, she cannot state a claim under the ADA. An employer "is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton v. United Airlines, Inc., 527 U.S. 471, 490 (1999). On this basis, we affirm the district court's grant of summary judgment to Networks on Rohan's ADA claims.

Freilich v. Upper Chesapeake Health, Inc. 313 F.3d 205 (12/2002)  Dr. Linda Freilich is a physician. Harford Memorial Hospital decided to terminate Dr. Freilich's medical staff privileges after undertaking an extensive review of her application for reappointment. Dr. Freilich then filed a complaint challenging the constitutionality of the federal statute granting immunity to peer review participants and the Maryland physician credentialing statutes. In addition, Dr. Freilich alleged violations of both the Americans with Disabilities Act and the Rehabilitation Act and made various other common law claims. Dr. Freilich's complaint is an attempt to have a federal court supervise what amounts to little more than a physician-hospital dispute over hospital policies and the expenditure of hospital resources. We affirm the judgment of the district court dismissing her claims.

Pollard v. High's of Baltimore, Inc., 281 F.3d 462 (2/2002) Plaintiff Mary Pollard claims that defendant High's of Baltimore, Inc. violated her rights under the Americans with Disabilities Act ("ADA") by failing to accommodate her disability and by constructively discharging her. Pollard also claims that she was wrongfully discharged under Maryland law. The district court granted summary judgment to High's. Because Pollard's impairment during her recovery from back surgery was a temporary one not covered by the ADA, and because High's did not wrongfully discharge her, we affirm the judgment of the district court.

Davis v. University of North Carolina, 263 F.3d 95 (8/2001) In this case, however, we are not required to determine the deference to which UNC-W's decisions might be entitled, because Davis has failed to make a prima facie showing that she is disabled within the meaning of the ADA or the Rehabilitation Act by failing to present any evi- dence from which it could be inferred that UNC-W regarded her as being substantially limited in any major life activity. Accordingly, the district court's order granting summary judgment in favor UNC- W is affirmed.

Rhoads v. F.D.I.C., 257 F.3d 373 (12/2001)  Lori Denise Rhoads appeals from the judgment rendered against her on her claims under the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 ("FMLA"); the employment provisions of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117, 12203 ("ADA"); and Maryland state law. The district court granted summary judgment to the Federal Deposit Insurance Corporation ("FDIC"), in its capacity as representative of Rhoads's former employers, on her ADA claims -- for failure to make reasonable accommodations, dis- criminatory termination, and retaliation -- as well as the state law claims. See Rhoads v. FDIC, 956 F. Supp. 1239 (D. Md. 1997). A jury subsequently found in the FDIC's favor on the FMLA claim, see Order of Judgment, No. B-94-1548 (D. Md. Mar. 4, 1998), and the court denied Rhoads's motion for judgment as a matter of law or, alternatively, for a new trial, see Order, No. B-94-1548 (D. Md. Aug. 12, 1998). As explained below, we affirm the district court in every respect except for its award of summary judgment on the ADA retali- ation claim, which we vacate and remand for further proceedings.

Haulbrook v. Michelin North America, 252 F.3d 696 (5/2001)  In this case, William Haulbrook appeals from the district court's grant of summary judgment rejecting his claims under the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 et seq. (West 1995), against defendant-appellees Michelin North America, Inc. ("MNA") and Michelin Americas Research & Development Corp. ("MARC"). Haulbrook argues that disputed issues of material fact precluded the district court from granting summary judgment in favor of MARC and MNA on his discriminatory termination and retaliation claims under the ADA. For the reasons set forth below, we affirm.

Hooven-Lewis v. Caldera, 249 F.3d 259 (5/2001)  The Court affirms the district court's Opinion granting summary judgment on all of Hooven-Lewis' claims. Hooven-Lewis does not have a disability under the RA because her hand tremor does not sub- stantially limit her in any major life activity. Hooven-Lewis' ability to work in laboratories handling non-infectious and non-hazardous materials, and her ability to do administrative work, demonstrate that she can still do work in her field. Therefore, Hooven-Lewis is not lim- ited from work in general or in the class of jobs for which she is trained. The evidence also demonstrates that the Army did not regard Hooven-Lewis as disabled, because it believed that Hooven-Lewis could do the particular work that she asserted that she could not do. Moreover, the Army did not regard Hooven-Lewis as being unable to perform the life activity of doing work in general because the Army placed Hooven-Lewis in positions in the Logistics Division, the library, and the Gastroenterology Department. Therefore, Hooven- Lewis cannot make out a prima facie case of discrimination under the Rehabilitation Act.   In addition, Hooven-Lewis has not made out a prima facie case of retaliation for protected activities under the Rehabilitation Act. Hooven-Lewis has not demonstrated a causal connection between any protected activity and her transfer out of Retrovirology, or between her protected activity and her removal from civil employment with the Army.

Fox v. General Motors Corp., 247 F.3d 169 (4/2001)  Moreover, the harassment Fox suffered was far more severe and pervasive than the harassment experienced by the plaintiffs in the cases cited by GM. In each of those cases, the court noted that the incidents relied on by the plaintiffs to create a hostile work environ- ment were too "isolated," Wallin, 153 F.3d at 688, or amounted to no more than "a few harsh words." McConathy , 131 F.3d at 564; see also Cannice, 189 F.3d at 726 (harassment not severe or pervasive where only two incidents "could even colorably be connected" to plaintiff's disability). Here, we are presented with evidence not of a few isolated incidents of harsh language, teasing, or insensitivity, but rather of regular verbal harassment and occasional physical harassment over a period of nearly ten months directed at Fox because of his disability.   In sum, Fox presented evidence of objectively severe and pervasive workplace harassment. We, therefore, cannot disturb the jury's finding in his favor.   Given Fox's testimony as to the specific nature of his "emotional pain, suffering, inconvenience, mental anguish, [and] loss of enjoyment of life," 42 U.S.C. § 1981a(b)(3), and the corroboration of his claim by medical professionals, we cannot conclude that the $200,000 award was "grossly excessive or shocking to the conscience". O'Rourke, 235 F.3d at 733. See also Hogan v. Bangor & Aroostook R.R. Co., 61 F.3d 1034, 1037-38 (1st Cir. 1995) (upholding $200,000 compensatory damages award to ADA plaintiff who"became depressed, withdrawn, and gave up his usual activities" due to employer's refusal to allow him to return to work after work-related injury).

Brinn v. Tidewater Transp. Dist. Com'n, 242 F.3d 227 (3/2001)  After L. Douglas Brinn, Ken Jessup, Steven Jackson, and Joyce Williams, obtained an advantageous settlement of their claims against Tidewater Transportation District Commission under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, they sought attorney's fees. The district court awarded them $29,506.24 in attorney's fees. Tidewater appeals, not disputing the reasonableness of the amount of the fee award, but contending that the award of any attorney's fees in this case violates state and federal law. For the reasons set forth below, we affirm.

E.E.O.C. v. Sara Lee Corp., 237 F.3d 349 (2000)  The Equal Employment Opportunity Commission (EEOC) appeals a decision holding that Vanessa Turpin was not disabled under the Americans with Disabilities Act. The EEOC further appeals the holding that if Turpin was disabled, Sara Lee Corporation satisfied its duty of reasonable accommodation under the ADA. Because the facts of this case show that Turpin was not substantially limited in a major life activity, and because the ADA does not require an employer to devi- ate from its nondiscriminatory seniority policy in order to accommo- date a worker, we affirm the judgment of the district court.

Rowe v. Marley, Co., 233 F.3d 825 (2000)  In sum, Reeves does not assist Rowe because he failed to demonstrate, with respect to any of his federal claims, that Marley's proffered non-discriminatory reasons for discharging him were pretextual. Because Rowe did not demonstrate that Marley's explanation for his discharge was pretextual, there is no evidence from which to infer that the real reason for his termination was illegal discrimination. Given this, the rule announced in Reeves, 120 S. Ct. at 2109 -- that a court cannot always require "additional, independent evidence of discrimination" -- does not affect the outcome of this case. Rather, it is Rowe's failure to demonstrate pretext on Marley's part that dooms his federal claims.

E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (2000)  The Equal Employment Opportunity Commission (EEOC) sued Stowe-Pharr Mills, Inc. (Stowe-Pharr) under Title I of the Americans with Disabilities Act (ADA) and Title I of the Civil Rights Act of 1991, alleging that Stowe-Pharr had taken discriminatory employment action against its former employee, Catherine Treece. The district court granted summary judgment to Stowe-Pharr, concluding that Treece's statement ("I [am] unable to work") in her Social Security Disability Insurance (SSDI) application judicially estopped the EEOC from asserting that Treece was a "qualified individual with a disability" under the ADA. A new Supreme Court case, decided after the district court ruled, requires a different approach: under Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), a plaintiff is permitted to explain an apparent conflict between her SSDI and ADA claims. After considering the parties' briefs and arguments, which take Cleveland into account, we conclude that the EEOC has made a sufficient explanation and proffer on Treece's behalf to avoid summary judgment on the "qualified individual" element of the ADA claim. Accordingly, we reverse the award of summary judgment to Stowe-Pharr and remand for further proceedings.

Lewis v. Kmart Corp., 180 F.3d 166 (1999) In Rogers v. DHEC , No. 97-2780, 1999 WL 193895 (4th Cir. April 8, 1999), we held that Title II, § 202 of the Americans With Disabilities Act of 1990 (the ADA), 42 U.S.C. § 12132, does not require a long-term disability plan that is sponsored by a public entity to provide the same level of benefits for mental and physical disabilities. In the present appeal, this court is called upon to decide whether the same holds true under Title I, § 102(a) of the ADA, 42 U.S.C. § 12112(a), when the plan's sponsor is a private employer. We hold it does.

Rogers v. Department of Health and Environmental Control, 174 F.3d 431 (1999)  The key question in this case is whether Title II of the Americans With Disabilities Act of 1990 (ADA or Act), 42 U.S.C. §§ 12132- 12134 (1994), requires a state's long-term disability plan to provide equal benefits for mental and physical disabilities. We hold that it does not.

Jones v. American Postal Workers Union, 192 F.3d 417 (1999)  Although Jones wins the battle over subject matter jurisdiction, he ultimately loses the war. The district court should have granted the Defendants' motion for summary judgment. The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee's misconduct, even if the misconduct is related to a disability. See Martinson v. Kinney Shoe Corp. , 104 F.3d 683, 686 n.3 (4th Cir. 1997); Collings v. Longview Fibre Co. , 63 F.3d 828, 832-33 (9th Cir. 1995); Despears v. Milwaukee County , 63 F.3d 635, 637 (7th Cir. 1995); Maddox v. University of Tenn. , 62 F.3d 843, 846-48 (6th Cir. 1995); cf. Little v. FBI , 1 F.3d 255, 259 (4th Cir. 1993) (finding no liability under the Rehabilitation Act of 1973 when firing for disability related intoxication on duty). Assuming Butts made the alleged discriminatory comments at issue to Postal Service officials and she represented the Defendants in doing so, there is absolutely no evidence to suggest that the Postal Service discharged Jones for any reason other than the fact that he threatened the life of his supervisor. Because the ADA does not require an employer to ignore such egregious misconduct by one of its employees, even if the misconduct was caused by the employee's disability, we remand this case to the district court for entry of judgment in favor of the Defen- dants.

Montalvo v. Radcliffe, 167 F.3d 873 (1999).   Court held that a traditional Japanese style martial arts school could deny admission to a minor who carried HIV because his condition would pose a direct threat to health or safety of others within meaning f exception to ADA and neither softening teaching style nor enhancing safety precautions were reasonable modifications required under the ADA.