Adkins v. Peninsula Regional Medical Center

LEAHY, J. In this appeal, we address an employer’s duty under the Maryland Fair Employment Practices Act (“MFEPA”), Maryland Code (1984, 2014 Repl.Vol.), State Government Article (“SG”) §§ 20-601 to 20-609, to reasonably accommodate a disabled employee seeking reassignment to another position for which he or she is otherwise qualified. In 2011, the employee in this case, Appellant Tracey L. Adkins, learned that she needed surgery to remedy a tear and deformation in her left hip. At the time, Ms. Adkins was employed by Appellee Peninsula Regional Medical Center (“PRMC”) as a storekeeper. Following her surgery, Ms. Adkins could no longer perform the largely physical tasks of the storekeeper position because her surgeon placed her on a sedentary work restriction.

Ms. Adkins exhausted her initial leave to which she was entitled under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. PRMC then granted Ms. Adkins 14 weeks of additional FMLA leave, and advised her to begin applying for other positions. Meanwhile, PRMC filled Ms. Adkins’s storekeeper position, and Ms. Adkins began applying to numerous vacant positions at PRMC. She was rejected from each one.

In February 2012, following expiration of her extended leave, PRMC terminated Ms. Adkins’s employment. PRMC also rejected Ms. Adkins from additional positions to which she applied following termination. Ms. Adkins then filed a lawsuit against PRMC in February 2013 in the Circuit Court ¹²¹ for Wicomico County, alleging disability discrimination and failure to accommodate under the MFEPA. The case did not proceed to trial because the circuit court granted PRMC’s motion for summary judgment based on its conclusion that although Ms. Adkins had a disability within the meaning of the MFEPA, she was not otherwise qualified for any of the vacant positions to which she applied and did not request an accommodation from PRMC.

Ms. Adkins filed a timely appeal, 1 presenting seven questions for our review, which we have consolidated and rephrased for clarity: I. Did the circuit court err in granting summary judgment in favor of PRMC based on its conclusion that there was no genuine dispute of material fact regarding whether Ms. Adkins was an otherwise “qualified individual with a disability” or whether she requested an accommodation?

II

Did the circuit court err by failing to address Ms. Adkins’s argument that PRMC failed to engage Ms. Adkins in an “interactive process” to determine a reasonable accommodation for her disability?

III

Did the circuit court err in failing to conclude that the demand by PRMC’s Director of Materials Management, Scott Phillips, that Ms. Adkins be returned to full duty constituted a “100 percent healed” requirement that amounted to per se disability discrimination?

IV

Did the circuit court err when it denied Ms. Adkins’s motion to compel and the amendment thereto? We hold that when an employee with a disability is no longer able to perform the essential functions of a formerly-held position, the employee may still be a “qualified individual with a disability” under MFEPA entitled to reassignment to a vacant position if the employee can establish that he or she ¹²² can perform the essential functions of that position, with or without reasonable accommodation. We also hold that once an employer is on notice that an employee has become disabled, the employer is required to assess the capabilities of the disabled employee to determine whether the employee is “otherwise qualified” for the same or another vacant position, and to determine what reasonable accommodation may be made without undue hardship to the employer, including reassignment. We conclude that when viewed in the light most favorable to Ms. Adkins, the evidence contained in the record on motion for summary judgment reflected genuine disputes of material fact regarding whether Ms. Adkins: (1) provided adequate notice to PRMC of her disability and need for an accommodation; (2) was assessed by PRMC to determine whether she could perform the essential functions of another vacant job; (3) could perform the essential functions of the inventory control coordinator position for which she applied; and (4) could perform the essential functions of another vacant job at PRMC.

In addition, although we hold the circuit court did not abuse its discretion in denying Ms. Adkins’s motion to compel the personnel files she requested, we conclude that the court did abuse its discretion by denying Ms. Adkins’s motion to compel production of relevant vacant positions at PRMC available during the time period in question, as this information was directly relevant to Ms. Adkins’s prima facie case alleging failure to accommodate. We reverse in part and affirm in part. BACKGROUND The instant case arrives in this Court following the circuit court’s grant of summary judgment; therefore, the following facts are assembled from the pleadings and documents attached to the summary judgment motion and response. We view the evidence in the light most favorable to Ms. Adkins as the nonmoving party.

Jones v. Mid-Atl. Funding Co., 362 Md. 661, 676 , 766 A.2d 617 (2001). ¹²³ A. Ms. Adkins’s Employment at PRMC Located in Salisbury, Maryland, PRMC is an advanced tertiary care facility that houses 288 licensed beds and is staffed by approximately 2,669 individuals. Ms. Adkins began her career at PRMC in March 2005 as a storekeeper in the Materials Management Department, which is, in part, responsible for inventorying and stocking medical supplies and equipment. In this role, Ms. Adkins was responsible for delivering supplies to various floors of the hospital, organizing supplies in the supply room, and checking expiration dates of materials.

Six months later, she was transferred to the Heart Center Inventory Control, more commonly known as the “Cath Lab,” as an inventory control assistant. This position was also in the Materials Management Department. Ms. Adkins held this position for several years, until September 2010, when the position was “cut,” and she was transferred back to the storekeeper position. She retained this position until her termination on February 25, 2012—the event which spawned the underlying lawsuit.

B. The Events Leading up to Surgery At some point during her tenure as storekeeper, Ms. Adkins began to experience pain in her hip. This pain intensified in early April 2011, when Ms. Adkins, while at her home, stood up and felt a painful pull in her groin area. She sought treatment at PRMC’s emergency room and took a few days off from work. When she returned to work, Ms. Adkins continued to experience significant pain, but still managed to complete her tasks.

After a return trip to the emergency room on May 10, 2011, her doctor advised that she should stop working. Determined to keep working, on May 28 she received a steroid injection in her hip, which alleviated the pain, and she returned to her post the next day. Ms. Adkins’s superiors, Scott Phillips (director of materials management services) and Pat Stevenson (control stores inventory control coordinator), were apprised of these events. ¹²⁴ Despite the steroid treatments, Ms. Adkins’s pain did not subside. She was ultimately diagnosed with a tear in the joint of her left hip as well as a hip deformation in her hip socket.

She was scheduled to have surgery—an arthroscopic aeetabu-loplasty, labral repair, and femoroplasty—by orthopedic surgeon Jason Scopp, M.D., on August 25, 2011. In anticipation of her surgery, Ms. Adkins notified her supervisors and filled out paperwork (dated July 21, 2011, but received by PRMC on August 11, 2011) to obtain leave under the FMLA. Her paperwork indicated that her leave would begin on August 25, 2011, and that she would return to work on or about October 6, 2011. In a letter dated August 11, 2011, PRMC approved Ms. Adkins’s FMLA leave request.

The letter further explicated Ms. Adkins’s rights under the FMLA. The letter explained that her approved 12-week leave under the FMLA would expire on November 17, 2011, and that so long as she returned by that date, she would be returned to her job or an equivalent one. The letter also advised that she would have to obtain a work evaluation from the Employee Health Office before resuming work. C. Ms. Adkins Undergoes Surgery and Begins 12-Week FMLA Leave Ms. Adkins continued working full-time until she underwent surgery in August 2011 and began her 12-week FMLA leave. 2 Unfortunately, her pain intensified following the surgery, and her doctors advised that the time for recovery could range from six months up to a year.

On October 3, 2011, while still out on FMLA leave, Ms. Adkins met with James Bunk, another superior, who was the ¹²⁵ supply chain operations manager of the Materials Management Department. She advised him that she was meeting her surgeon on October 10 for a follow-up and that she hoped to learn, at that time, when she could return to work. Following the appointment, Ms. Adkins received a letter from her surgeon advising that she would be unable to return to work until November 7, 2011. Ms. Adkins delivered this documentation to PRMC’s Employee Health Office and Mr. Bunk.

On November 7, 2011, Ms. Adkins returned to work as scheduled and met with a nurse at the Employee Health Office. There, Ms. Adkins advised that she would be unable to fulfill her job responsibilities on that day. She explained that she experienced increased pain when bending, lifting, and squatting, and that she would not be able to stand for long periods of time. PRMC, in turn, did not clear Ms. Adkins for work.

The “Employee Charting Note” for this date confirmed that “all parties” agreed that Ms. Adkins could not return to work. It also reflected that Ms. Adkins had “been educated on FMLA and to start looking at job postings” and that Ms. Adkins reported having applied to the “core tech position.” Three days later, on November 10th, Ms. Adkins returned to her doctor and received a medical report form indicating she could return to work under “light duty,” meaning that she was capable of performing “[sjedentary [w]ork: [ljifting 10 pounds maximum and occasionally lifting and/or carrying small articles and occasional walking or standing.” That same day, she brought the form to the Employee Health Office, which advised her that “the unit could not accommodate her restrictions.” Ms. Adkins testified during her deposition that Employee Health informed her that she would “need[ ] to be released [for] full duty [in order] to be able to do [her] position not sedentary.” Ms. Adkins admitted to her supervisors that she could not do her current storekeeper job with sedentary restrictions, and advised that she was unable to be released for work in that job. After this meeting, Ms. Adkins began applying for different jobs that she believed were sedentary. Following her surgery ¹²⁶ and before her termination, Ms. Adkins applied to the following positions: Clerk-Postal; Monitor Technician; Patient Service Rep-Medical Group; Operating Room Core Technician; CNA-Trainee; Code Abstractor I; Patient Service Rep-Medical Group (several vacancies); Representative-Billing/Collection-Medical Group; and Technician-Core.

She also e-mailed Mr. Phillips asking to be considered for an inventory control coordinator position. She was not hired for any of these positions. D. Ms. Adkins’s Leave Expires, and She Is Terminated On or around November 17, 2011—the day Ms. Adkins’s 12-week FMLA leave was set to run out—PRMC extended her another 14 weeks of FMLA leave until February 2012. At the same time, PRMC encouraged her to apply for other positions, although specific positions were not identified.

Ms. Adkins also learned that her storekeeper position had been filled. 3 On January 12, 2012, Ms. Adkins went back to her doctor for an appointment and received a doctor’s note that maintained the “light duty” work restrictions. 4 On February 14, 2012, PRMC’s Benefits Manager notified Ms. Adkins in a letter that she was only entitled, under PRMC’s policy, to a leave of absence for six months per year, and that her leave would expire on February 25, 2012. In response, Ms. Adkins inquired about her pension but did not ask about employment. Ms. Adkins was ultimately terminated on February 25, 2012. Following termination, Ms. Adkins applied to four more posi ¹²⁷ tions: Registrar-Emergency Admittance; Receptionist; Representative-Billing/Collection-Medieal Group; and Representative-Patient Account.

She was not hired for any of these positions. E. Ms. Adkins Sues PRMC for Disability Discrimination and Failure to Accommodate On February 1, 2013, Ms. Adkins filed a three-count complaint against PRMC in the Circuit Court for Wicomico County under the MFEPA, alleging disability discrimination based on an actual disability, disability discrimination based on being regarded by the defendant as having a physical impairment, and failure to accommodate disability. 5 PRMC filed an answer on May 3, 2013. During the ensuing discovery process, Ms. Adkins sought production of various documents—including all job vacancies at the time she was looking for a position and the personnel files of core technician employees—and PRMC objected. This prompted Ms. Adkins to file a motion to compel on December 25, 2013 (as well as an amendment thereto on January 21, 2014).

PRMC filed a motion for summary judgment on January 6, 2014. Several days later, on January 9, 2014, Ms. Adkins filed an amended complaint, and PRMC filed an answer on January 24, 2014. In light of Ms. Adkins’s amended complaint, PRMC filed an amended motion for summary judgment on March 21, 2014, which is the subject of the instant appeal. In its motion, PRMC argued, inter alia, that Ms. Adkins did not have a disability; that she was not qualified to perform the essential functions of her last job or the positions to which she applied; and that no reasonable accommodation was available.

PRMC attached a number of exhibits, including Ms. Adkins’s deposition; job descriptions for positions to which she applied; ¹²⁸ and deposition excerpts of PRMC employees, including Ms. Adkins’s supervisors, human resources personnel, and benefits personnel. In her response filed on April 7, 2014, Ms. Adkins maintained, inter alia, that she had a disability; that she was a qualified individual with a disability; and that PRMC failed to engage in an interactive process to assist her in finding a proper accommodation following her sufficient notice that she needed an accommodation. She attached a number of exhibits, including her own affidavit, medical documents, and various deposition excerpts from PRMC employees. The circuit court held a hearing on April 30, 2014, with three motions before it: (1) PRMC’s motion to strike Ms. Adkins’s amended complaint, (2) Ms. Adkins’s motion to compel, and (3) PRMC’s motion for summary judgment.

On the record at the hearing, PRMC withdrew its motion to strike Ms. Adkins’s amended complaint, and, at the close of the hearing, the court denied Ms. Adkins’s motion to compel. The court held the motion for summary judgment sub curia. In an order and opinion dated May 19, 2014 (entered May 20), the court granted summary judgment in favor of PRMC. As to Count 1 (discrimination based on actual disability), the court concluded that there was no genuine dispute of material fact that Ms. Adkins failed to demonstrate a prima facie case under the three prong test enunciated in Ridgely v. Montgomery County, 164 Md.App. 214, 232 , 883 A.2d 182 (2005): (1) that she had a disability; (2) that notwithstanding the disability, she was otherwise qualified for the employment, with or without reasonable accommodation; and (3) that PRMC excluded her from employment solely due to her disability.

The court concluded that Ms. Adkins’s hip injury was a “physical impairment” that substantially limited her performance of major life activities, thereby meeting the definition of disability, and that no reasonable trier of fact could conclude that she was not disabled. However, the court ruled that no rational trier of fact could conclude that Ms. Adkins was “otherwise qualified”: The essential functions of the Storekeeper position, as well as the various other opportunities for which the Plaintiff ¹²⁹ applied, involved physical demands beyond her capabilities. The Plaintiff could not execute the jobs’ requirements, including protracted standing, walking, bending, and lifting. The court further concluded that “no reasonable accommodation was available for her” and that it was “undisputed that [Ms. Adkins] never approached [PRMC] about any specific reasonable accommodations that would enable her to perform the essential duties of her employment.” The court hypothesized that even if it was PRMC’s duty to initiate implementation of a reasonable accommodation, Ms. Adkins failed to identify one that could have been available.

Based on its conclusions as to the first and second prongs, the court did not address the third prong. The court also did not find any genuine dispute of material fact regarding Count 2 (being “regarded as” disabled) given its conclusion that the evidence demonstrated that Ms. Adkins was, in fact, disabled. 6 As to Count 3 (failure to accommodate), the court reiterated that it is the employee’s burden to request an accommodation and emphasized that “neither party has shown a specific reasonable accommodation that would allow [Ms. Adkins] to fulfill her essential duties of employment.” Accordingly, the court granted summary judgment in favor of PRMC. This appeal ensued. We include additional facts in the discussion relevant to the issues there examined.

DISCUSSION I. A. Standard of Review Ms. Adkins contends that the circuit court erred in granting PRMC’s motion for summary judgment. Maryland Rule 2- ¹³⁰ 501 governs motions for summary judgment and provides that summary judgment is proper “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(a). The nonmoving party’s written response must “(1) identify with particularity each material fact as to which it is contended that there is a genuine dispute and (2) as to each such fact, identify and attach the relevant portion of the specific document, discovery response, transcript of testimony ..., or other statement under oath that demonstrates the dispute.” Md. Rule 2-501(b). “The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried.” Mid-Atl. Funding Co., 362 Md. at 675 , 766 A.2d 617 (citations omitted).

Thus, “[i]n reviewing the grant of a summary judgment motion, we are concerned with whether a dispute of material fact exists,” id. (citations omitted), and our review is de novo, MAMSI Life & Health Ins. Co. v. Callaway, 375 Md. 261, 278 , 825 A.2d 995 (2003) (citing Green v. H & R Block, Inc., 355 Md. 488, 502 , 735 A.2d 1039 (1999); Heat & Power v. Air Prods., 320 Md. 584, 590-92 , 578 A.2d 1202 (1990)). We review the same record and issues of law as the circuit court and are “tasked with determining whether the trial court reached the correct result as a matter of law.” Id.

(citing Tyma v. Montgomery Co., 369 Md. 497, 504 , 801 A.2d 148 (2002); Murphy v. Merzbacher, 346 Md. 525, 530-31 , 697 A.2d 861 (1997)). We view the evidence in the light most favorable to, and draw all inferences in favor of, Ms. Adkins as the nonmoving party. Mid-Atl. Funding Co., 362 Md. at 676 , 766 A.2d 617 .

B. The Development of Legislation Banning Disability Discrimination in the Workplace Title VII of the Civil Rights Act of 1964 established a broad prohibition of workplace discrimination on the grounds of race, color, religion, sex, and national origin. Pub.L. No. 88-352, 78 ¹³¹ Stat. 253 (1964) (codified as amended at 42 U.S.C. §§ 2000e et seq.). Although Title VII did not encompass disability within its scope, Congress thereafter extended Title VII’s ban of discriminatory workplace practices to include disability with its enactment of the Rehabilitation Act of 1973. Pub.L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at 29 U.S.C. § 790 et seq.).

This Act protects federal executive branch employees, see 29 U.S.C. § 791 , and employees of federal contractors and subcontractors with contracts exceeding $10,000, see 29 U.S.C. § 793 . It also prohibits discrimination in programs or activities that receive federal financial assistance or are conducted by an executive federal agency or the U.S. Postal Service. See 29 U.S.C. § 794 . Less than three decades later, Congress enacted the Americans with Disabilities Act of 1990 (“ADA”), which became effective on July 26, 1992.

Pub.L. No. 101-336, § 108 , 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. § 12101 et seq.). The ADA expanded the applicability of anti-discrimination laws regarding disability to more employers than were covered by the Rehabilitation Act, including employers that employ 15 or more individuals over a 20-week period, labor organizations, and joint labor-management committees as “covered entities.” See 42 U.S.C. §§ 12111 (2), (5), & 12212(a). Specifically, the ADA establishes that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard 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. § 12112 (a). In light of the case law that began to shape the application of the ADA, Congress made significant changes with its enactment of the ADA Amendments Act of 2008, 7 which became effective on January 1, 2009.

Pub.L. No. 110-325, 122 Stat. 3553 (2008) (codified at 42 U.S.C. § 12101 ). Most notably, the amendments broad ¹³² ened the definition of “disabled” and broadened the scope of protection under the ADA to include not only those persons with actual disabilities, but also those perceived or “regarded as” being disabled. 8 See Meade v. Shangri-La P’ship, 424 Md. 476, 489-91 , 36 A.3d 483 (2012) (recognizing that Congress explicitly repudiated a prior, narrow definition of “disability” by passing the ADAA in 2008). Following Congress’s lead, the Maryland General Assembly enacted laws prohibiting discrimination on the basis of disability. Beginning in 1965, Maryland passed the Maryland Fair Employment Practices Law, codified at Article 49B, patterned after federal law, and amended it to comport with federal law as it was updated.

Haas v. Lockheed Martin Corp., 396 Md. 469, 503-04 , 914 A.2d 735 (2007) (Battaglia, J., dissenting). Thus, like the federal Civil Rights Act of 1964, Maryland law did not initially cover disability discrimination. It was not until 1974, around the time Congress enacted the Rehabilitation Act, that the General Assembly amended Article 49B’s ban on discrimination to include “physically or mentally handicapped persons.” 1974 Md. Laws, ch. 601. The General Assembly changed the “handicap” terminology to “disability,” without substantive change in the definition thereof, in 1999. 1999 Md. Laws, ch. 60 (H.B.59). ¹³³ Initially, employees who alleged disability discrimination in the workplace were required to file a complaint with the Maryland Commission on Human Relations, which would, in turn, investigate the complaint and ultimately decide whether to bring a civil action on the employee’s behalf upon a finding of probable cause that an unlawful employment practice occurred.

Md.Code (1957, 2003 Repl. Yol), Art. 49B, §§ 9A-12. In 2007, however, the General Assembly amended the enforcement provisions to give these employees the option of filing a civil action against the employer themselves after exhausting their administrative remedies. 9 2007 Md. Laws, chs. 177, 176. In 2009, the disability provisions that were formerly contained in Article 49B (§§ 14-18) were re-codified in Title 20, the Human Relations Title of the State Government Article without substantive change.

Revisor’s Note to 2009 Md. Laws, ch. 120, § 2; SG §§ 20-601 to 20-609. Later that year, however, the General Assembly made various substantive amendments to the Code. For example, just as the ADAA. expanded the ADA’s definition of “disability”, the General Assembly also expanded the definition to include those persons having a record of a physical or mental impairment as well as those who are “regarded as” having a physical or mental impairment. 2009 Md. Laws, ch. 299, § 1 (S.B.670). The Code of Maryland Regulations (“COMAR”) § 14.03.02 et seq. further explicates the statutory scheme.

Also in 2009, and most relevant to the matter before us, the General Assembly added explicit language making an employer’s failure or refusal to make a reasonable accommodation for an otherwise qualified employee known to have a disability, a separate ground for an illegal employment practice. Id. The ¹³⁴ General Assembly carefully qualified this obligation, as did Congress under the ADAA, 10 to say that an employer is not required “to reasonably accommodate an employee’s ... disability if the accommodation would cause undue hardship on the conduct of the employer’s business.” SG § 20-603(2); 2009 Md. Laws, ch. 299, § 1. (S.B.670).

To determine whether an undue hardship exists, factors to be considered include: “(1) The nature and cost of the accommodation needed; (2) The financial resources of the covered entity, and any parent corporation if applicable; (3) The size of the business with respect to the number and type of facilities; (4) The type of business or program, including the composition and structure of the work force; (5) The ability of the covered entity to conduct business or operate programs with the accommodation; (6) The effect of the accommodation on other employees’ performance; and (7) Legitimate safety concerns.” COMAR § 14.03.02.06(B). C. Ms. Adkins’s Disability Discrimination Claims Ms. Adkins asserted three counts in her complaint: (1) disability discrimination based on actual disability; (2) disability discrimination based on being “regarded as” having a physical impairment; and (3) failure to accommodate. The circuit court granted summary judgment in favor of PRMC as to all three counts, but Ms. Adkins only disputes the rulings as to disability discrimination based on an actual disability (Count 1), and failure to accommodate (Count 3). Notably, PRMC does not challenge the court’s conclusion that Ms. Adkins is an individual with a disability on appeal.

In Maryland, it is unlawful for a covered employer to “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment” based on his or her “disability [that is] unrelated in nature and extent so as to reasonably preclude the performance of the employment.” SG § 20-606(a)(l)(i); see also COMAR § 14.03.02.04(A)(2) (es ¹³⁵ tablishing various forms of unlawful employment discrimination against “a qualified individual with a disability,” including “[hjiring, upgrading, promotion, tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring”). COMAR expounds on the “reasonable accommodation” requirement: [a] covered entity (1) [s]hall make a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability; (2) [i]s not required to provide an accommodation, if it demonstrates that the accommodation would impose undue hardship on the operation of its business or program; and (3) [m]ay not deny an employment opportunity to a qualified individual with a disability, if the basis for the denial is the need to accommodate the individual’s physical or mental limitations, and this accommodation, if attempted, would be reasonable. COMAR § 14.03.02.05(A). As made plain by the language of these provisions, an employee must be “a qualified individual with a disability” to prevail in either a disability discrimination claim under SG § 20-606(a)(l) or a failure-to-accommodate claim under SG § 20-606(a)(4).

Thus, before turning to the specific elements for each of Ms. Adkins’s two claims, we consider the meaning of a “qualified individual with a disability” in the context of this case. Qualified Individual with a Disability A “qualified individual with a disability” is “an individual with a disability who: (a) [w]ith or without reasonable accommodation can perform the essential functions of the job in question; or (b) [i]s otherwise qualified for the benefit, term, condition, or privilege of employment at issue.” CO-MAR § 14.03.02.02(B)(10) (emphasis added). As the party needing to present a prima facie case, the employee-plaintiff bears the initial burden of showing that he or she is a “qualified individual with a disability.” See Hawkins v. Rockville Printing & Graphics, Inc., 189 Md.App. 1, 11 , 983 A.2d 531 (2009); Gaither v. Anne Arundel Cnty., 94 Md.App. 569 , ¹³⁶ 583, 618 A.2d 244 (1993); Md. Comm’n on Human Relations v. Mayor & City Council of Balt., 86 Md.App. 167, 176 , 586 A.2d 37 (1991); see also Caire v. Conifer Value Based Care, LLC, 982 F.Supp.2d 582, 599 (D.Md.2013). In the case sub judice, it is undisputed that, without a reasonable accommodation, Ms. Adkins was no longer capable of performing the essential functions of “the job in question”— her then-current position of storekeeper.

In her deposition, Ms. Adkins ranked the position as a ten on a scale from one to ten regarding its level of physical demand, and the uncontro-verted evidence in the record reflects that Ms. Adkins confirmed she was unable to perform her storekeeper duties following surgery and expiration of FMLA leave. Whether Ms. Adkins could “perform the essential functions of the job” with a reasonable accommodation, however, is the subject of dispute in this case. Gaither, 94 Md.App. at 583 , 618 A.2d 244 (“Establishing that one is ‘otherwise qualified’ for a job necessarily entails a consideration of whether one would be qualified if his [disability] were accommodated by the employer.” (citing Md. Comm’n on Human Relations, 86 Md.App. at 174 , 586 A.2d 37 )); cf. Zei v. Md. Transit Admin., 433 Md. 254, 271 , 71 A.3d 1 (2013) (considering whether employee could be a qualified individual with a disability under the ADA by being offered a reasonable accommodation that could permit him to perform his job), cert. denied, — U.S. —, 134 S.Ct. 942 , 187 L.Ed.2d 785 (2014). Under Maryland law, a “reasonable accommodation” may include “job restructuring”; “[Reassigning or transferring an employee to a vacant position, light duty job, different work location, or other alternative employment opportunity which is available under the employer’s existing policies or practices”; or “[m]aking reasonable modifications in the covered entity’s rules, policies, and practices if the modification may enable an applicant or employee with a disability to perform the essential functions of the job.” COMAR § 14.03.02.05(B)(3), (5), (11). ¹³⁷ Here, Ms. Adkins does not contend that PRMC could have altered or restructured her storekeeper position to accommodate her disability; instead, she contends that PRMC could have reassigned her to a vacant position. 11 When reassignment or transfer is requested, and the employee is unable to perform the essential functions of the formerly held position even if an alteration to that position is made, the “job in question” subject to evaluation under COMAR § 14.03.02.02(B)(10) is not the formerly-held job, but the vacant position to which the employee sought reassignment or transfer.

Indeed, by their plain meaning, the words “reassignment” and “transfer” used in the regulation necessarily presume that the disabled individual seeking this accommodation is a present employee and that the possibility of a reasonable accommodation for that employee exists beyond simply altering the individual’s existing job. The regulations expressly contemplate transfer to a vacant job. In addressing similar ADA provisions concerning the transfer or reassignment of a “qualified individual with a disability,” 12 numerous United States Courts of Appeals have ¹³⁸ reached a similar conclusion on this issue. See, e.g., Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257-58 (6th Cir.2000) (holding that “an employer has a duty under the ADA to consider transferring a disabled employee who can no longer perform his old job even with accommodation to a new position within the [cjompany for which that employee is otherwise qualified”); Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1018 (8th Cir.2000) (“[W]e conclude that the definition of ‘qualified individual with a disability’ includes a disabled employee who cannot do his or her current job, but who desires and can perform, with or without reasonable accommodation, the essential functions of a vacant job within the company to which he or she could be reassigned.”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1162 (10th Cir.1999) (en banc) (holding that “a qualified individual with a disability” includes “individuals who can perform an appropriate reassignment job within the company, with or without reasonable accommodation, even though they cannot perform their existing job no matter how much accommodation is extended” (citations omitted)).

Ms. Adkins concedes she could not perform the essential functions of her storekeeper position; even so, she could have been considered a “qualified individual with a disability” if she had carried her burden of establishing that she was able to perform the essential functions of a vacant position at PRMC, with or without a reasonable accommodation, to which she could be reassigned. As we turn to Ms. Adkins’s claims of ¹³⁹ disability discrimination and failure to accommodate, we focus our enquiry on whether there was any material fact that remained in dispute before the circuit court as to whether Ms. Adkins was a “qualified individual with a disability.” As noted supra, PRMC does not challenge the court’s conclusion that Ms. Adkins is disabled, nor does PRMC argue that Ms. Adkins was terminated for some independent reason other than her disability. Therefore, we address Ms. Adkins’s failure to accommodate claim first, as it is really the core of her challenge on appeal. Moreover, as we shall see, our analysis of her accommodation claim foreordains our decision regarding her disability discrimination claim. 1.

Failure to Accommodate To establish a prima facie case for a failure-to-accommodate claim, the employee-plaintiff must show: (1) that he or she was an individual with a disability; (2) that the employer had notice of his or her disability; (3) that with reasonable accommodation, he or she could perform the essential functions of the position (in other words, that he or she was a “qualified individual with a disability”); and (4) the employer failed or refused to make such accommodations. Wilson, 717 F.3d at 345 (citing Rhoads v. FDIC, 257 F.3d 373 , 387 n. 11 (4th Cir.2001)). These elements are found directly in SG § 20-606(a)(4) establishing that it is unlawful for an employer to “fail or refuse to make a reasonable accommodation for the known disability of an otherwise qualified employee.” “Although the duty to accommodate rests on the employer, the burden of proving that an employer could not have reasonably accommodated a handicapped employee does not arise until the employee presents his prima facie case.” Gaither, 94 Md.App. at 583 , 618 A.2d 244 (citing Md. Comm’n on Human Relations, 86 Md.App. at 178 , 586 A.2d 37 ; Jasany v. U.S. Postal Serv., 755 F.2d 1244, 1249-51 (6th Cir.1985)); see also Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir.2015) (stating that upon satisfaction of employee’s prima facie case, the employer may defend against the claim by showing that the accommodation is unreasonable or that it ¹⁴⁰ imposes an undue hardship). Because, as we noted supra, PRMC does not challenge the court’s ruling that Ms. Adkins has a “disability” as defined by the MFEPA, we consider the remaining elements of Ms. Adkins’s prima facie case. a.

Adequate Notice to Employer of the Disability and Need for Accommodation To receive an accommodation, the employee must “communicate[ ] to his employer his disability and his desire for an accommodation for that disability.” Wilson, 717 F.3d at 346-47 (citations omitted). The employee need not submit a formal request for an accommodation, nor must the employee use “magic phrases”; instead, the employee must provide the employer with “adequate notice” of his disability and need for an accommodation. Pollard v. Balt. Cnty.

Bd. of Edue., 65 F.Supp.3d 449, 456 (D.Md.2014) (quoting Rock v. McHugh, 819 F.Supp.2d 456, 473 (D.Md.2011)); see Allen v. Balt. Cnty., 91 F.Supp.3d 722, 733 , 2015 WL 1260705 (D.Md.2015) (citation omitted); see also Cassidy v. Detroit Edison Co., 138 F.3d 629, 635 (6th Cir.1998) (stating that the employee’s request for an accommodation cannot be vague). This requirement exists for the obvious reason that “[a]n employer simply cannot be expected to accommodate disabilities of which it is unaware.” Pollard, 65 F.Supp.3d at 456 -57 (citing Adamczyk v. Balt. Cnty.

Police Dep’t, 952 F.Supp. 259, 264 (D.Md.1997)). In determining whether the employee provided adequate notice of his or her disability and need for an accommodation, the totality of the circumstances must be considered. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir.1999) (“What matters ... [is] whether the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.”), abrogated on other grounds as stated in Rocco v. Gordon Food Serv., 998 F.Supp.2d 422 , 426 n. 1 (2014).

In the instant case, the circuit court stated that it was “undisputed that [Ms. Adkins] never approached [PRMC] ¹⁴¹ about any specific reasonable accommodations that would enable her to perform the essential duties of her employment.” We disagree, and, as described below, conclude that the record reflects a genuine dispute of material fact regarding whether Ms. Adkins provided adequate notice to PRMC of her disability and need for an accommodation. The summary judgment record discloses that, following her surgery and while on FMLA leave, Ms. Adkins updated her supervisor, James Bunk, as to her follow-up appointment and delivered a letter from her surgeon to him and PRMC’s Employee Health Office. After she returned from her FMLA leave in November 2011, Ms. Adkins met with a nurse with the Employee Health Office and advised that she was no longer able to perform the essential duties of her storekeeper position due to her hip injury and her sedentary work restrictions. The Employee Health Office could not accommodate her restrictions.

Ms. Adkins then took extended leave under the FMLA, and PRMC filled Ms. Adkins’s storekeeper position. PRMC encouraged Ms. Adkins to apply for vacant positions at PRMC, and Ms. Adkins did so. She applied for at least 14 separate positions and contacted PRMC to follow-up on some of the positions, but was not hired for any position. PRMC claimed to have reached out to Ms. Adkins to “discuss with her what positions she might be able to perform” and that “Ms. Adkins did not return PRMC’s call.” Some of PRMC’s employees, however, like Mr. Bunk, did not even consider Ms. Adkins to have a disability (giving rise to a reasonable inference, without further evidence in the record, that these employees did not try to accommodate her disability).

Based on the foregoing, a reasonable jury could conclude that PRMC had notice that Ms. Adkins was no longer able to perform the essential functions of her storekeeper position and, considering the totality of the circumstances, that she adequately notified PRMC that she needed assistance in locating a position that she could physically perform. PRMC knew that Ms. Adkins could not perform the storekeeper function; ¹⁴² knew that the position had been filled; and knew that Ms. Adkins had been submitting applications for other vacant positions within the company to remain employed. We hasten to note that the mere submission of job applications by an employee following surgery or FMLA leave does not, alone, constitute an adequate request for an accommodation. An employer could logically assume that an employee applying for another job simply wants a new position.

Standing alone, a job application does not automatically suggest a request for another position necessitated by a disability. However, in the instant case, Ms. Adkins’s job applications were submitted in the context of PRMC’s full knowledge, through its HR department and Ms. Adkins’s supervisors, that Ms. Adkins could no longer perform her former storekeeper position because of her disability. PRMC knew that Ms. Adkins had been placed on light-duty restriction and that Ms. Adkins would become unemployed, due to her disability and absent assistance, if she was unable to obtain a new position. Certainly there are also facts in the record upon which PRMC may rely in its favor; including, for example, that Ms. Adkins began submitting applications for alternative employment before her surgery and wanted to leave the storekeeper position.

As well, PRMC emphasizes the limited extent of Ms. Adkins’s efforts to keep in contact with PRMC during her job application process. But taken together, these particulars demonstrate that whether Ms. Adkins provided “adequate notice” of her disability and her need for assistance is a factual dispute left unresolved by the record. The record here is accordingly unsuitable for summary judgment. b. The Federal Interactive Process and Maryland’s “Individualized Assessment ” Ms. Adkins further argues that following her adequate notice to PRMC that she needed an accommodation, PRMC failed to engage in an “interactive process” with her to help her identify a reasonable accommodation.

The phrase “interactive process” is a feature of federal regulatory disability discrimination law: ¹⁴³ To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2 (o)(3) (emphasis added). Although the regulation is phrased as permissive with the use of “may” rather than “shall,” the employer’s duty to engage an employee in an interactive process is often construed as mandatory. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 778 (6th Cir.2015) (“We, along with many other circuits, have held that the employer’s duty to participate in the interactive process in good faith is mandatory.” (citation omitted)); Fleetwood v. Harford Sys.

Inc., 380 F.Supp.2d 688, 701 (D.Md.2005) (“[I]f it is not immediately obvious what accommodation would be appropriate, the ADA requires that the employer and employee engage in an interactive process to identify a reasonable accommodation.” (citing Bryant v. Better Bus. Bureau of Greater Md., 923 F.Supp. 720, 737 (D.Md.1996); 29 C.F.R. § 1630.2 (o)(3))). The “interactive process” is generally triggered by an employee’s adequate request for an accommodation. Wilson, 717 F. 3d at 346-47.

The United States District Court for the District of Maryland has explained the interactive process as follows: The EEOC suggests that the employer should take the following steps to accomplish th[e] goal [of the interactive process]: (1) analyze the particular job involved and determine its purpose and essential functions; (2) consult with the employee to ascertain the precise job-related limitations imposed by the disability and how they could be overcome; (3) in consultation with the employee, identify potential accommodations and assess the effectiveness of each in enabling the employee to perform his functions; and (4) consider the preference of the employee and implement the ¹⁴⁴ accommodation that is most appropriate for both the employee and employer. Bryant, 923 F.Supp. at 737 . Responsibility for identifying an accommodation, however, is shared between the employer and employee. See May v. Roadway Express, Inc., 221 F.Supp.2d. 623, 627-28 (D.Md.2002).

A party that obstructs or delays the interactive process, or simply fails to communicate, is not acting in good faith to find a solution. See Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir.1996). Nevertheless, an employer cannot escape liability simply because the employee does not suggest a particular reasonable accommodation that would assist him.

See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir.1999). The employer must work with the employee to determine what accommodation would help. Similarly, an employee cannot prevail simply by demonstrating that his employer failed to engage in the interactive process; he also must show that this failure to engage in the process resulted in the failure to find an appropriate accommodation.

See Scott v. Montgomery County Gov’t, 164 F.Supp.2d 502, 508 (D.Md.2001). Fleetwood, 380 F.Supp.2d at 701 . Ms. Adkins argues that the obligatory “interactive process” under federal law is implicit in COMAR § 14.03.02.04(B)(3), which provides that it is an unlawful employment practice for a covered entity to fail to make an individualized assessment of a qualified individual with a disability’s ability to perform the essential functions of a job, unless the qualification standard, employment test, or other selection criteria under which the individual was disqualified meet the requirements of a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or program. (Emphasis added).

As reflected by the plain language of this regulation, and unlike the federal regulation establishing the “interactive process” requirement ( 29 C.F.R. § 1630.2 (o)(3)), ¹⁴⁵ Maryland law does not explicitly require an employer to engage in an “interactive process” to identify a reasonable accommodation. Although Maryland courts may rely on federal disability discrimination law to the extent that the federal statutes and regulations being analyzed are sufficiently similar to those of Maryland as to lend persuasive authority, we cannot supplant federal standards in place of Maryland standards. Meade, supra, 424 Md. at 489 , 36 A.3d 483 (explaining that using federal cases to construe