Cohen v. Montgomery County Department of Health & Human Services

KRAUSER, Judge. The principal issue before us is whether an accommodation for a disabled employee is reasonable if it is granted after an unreasonable delay. In other words, is an accommodation delayed, an accommodation denied? Holding that it was not, the Circuit Court for Montgomery County dismissed the disability discrimination complaint of appellant Susan Cohen, a disabled Montgomery County employee, for failing to allege a cause of action against her employer, appellee the Montgomery County Department of Health and Human Services (“County”), and two departmental supervisors, John Kenney and Judith Unger.

In doing so, the circuit court reasoned that the accommodation provided by the County, late or not, rendered appellant’s complaint moot. It further found no factual basis for allowing appellant to proceed against either Kenney or Unger. From that decision, appellant noted this appeal, claiming that the County’s alleged seventeen month delay in granting her an accommodation denied her a “reasonable” accommodation and thus gave rise to a cause of action for disability ⁵⁸¹ discrimination against the County. She further maintains that her complaint provides a sufficient basis for holding both Kenney and Unger individually responsible for that discrimination.

For the reasons that follow, we shall vacate the judgment of the circuit court and remand this case to that court for further proceedings consistent with this opinion. Facts In reviewing the dismissal of a complaint, we must “presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom.” Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 72 , 716 A.2d 258 (1998). Consequently, the only facts relevant to this appeal are those presented by appellant’s complaint. That complaint states that, for over 20 years, appellant has been employed full-time as a social worker by the Montgomery County Department of Health and Human Services (“HHS”).

In 1995, however, she was diagnosed with multiple sclerosis. Three years later, in 1998, she informed the County “of the precise nature of her disability and the fact that her condition resulted in weakness in both her upper and lower extremities.” In the spring of 1998, as “her illness was affecting her ability to perform some of the physical tasks required by her job,” appellant applied “for a half-time position which became available with the Group Home Licensing Program of HHS’s Public Health Services department that required no field work.” She was told by a Public Health Services supervisor that “they were offering her the position because of her superior qualifications.” In other words, the job was not offered as a reasonable accommodation. She accepted that position but, as it was only part-time, continued working with the “Assisted Living Services program, within Aging & Disabilities Services,” a position that did require field work. The field work required by her position with the Assisted Living Services program (“ALS”) included: ⁵⁸² “commuting to various adult foster care and group homes throughout the County, walking up flights of stairs to visit the residents and perform inspections of assisted living facilities, and taking clients to medical and other various appointments.” After learning that, because of “staff shortages,” her duties at the ALS section were going to increase and include the “assignment of ‘on-call’ emergency coverage,” appellant spoke to her supervisor as to whether she “could be exempted from this additional work assignment because of her condition.” When no such assurances were forthcoming, she sought the advice of counsel.

On July 14, 1998, appellant, through counsel, notified the County “that she was concerned that some of the additional work demands ‘may present an obstacle’ if her legs ‘continue to weaken due to her disease.’ ” Appellant “also advised the County that ‘in the next few months, [she might] need a reasonable accommodation to enable her to continue to perform the essential functions of her job.’ ” A month later she provided a letter from her physician in support of that request. On August 26, 1998, Judith Unger, “the administrator for Human Resources with the Department of Health and Human Services,” asked Dr. Gawin Flynn, the County’s occupational medical examiner, to evaluate appellant’s “ ‘ability to perform the full range of duties of her position’ based on her request to be exempted from any ‘on-call’ assignments.” After performing a “fitness for duty evaluation,” Dr. Flynn stated, in a memorandum to Unger, that appellant was “ ‘fit for duty as a Social Worker III with some restrictions.’ ” An accommodation later proved to be unnecessary as the department ultimately “decided not to implement any on-call assignments at that time.” By October 1998, appellant “was beginning to have serious problems driving due to lower-extremity weakness and sensory loss, as her attorney and physician predicted in their letters.... ” “These problems” affected her ability to conduct field visits for ALS. She told her supervisor “of the safety ⁵⁸³ concerns for herself and others” and requested “reassignment or the restructuring of her job duties to lessen her field work responsibilities.” Appellant’s request for this accommodation was forwarded to Unger, “who had the authority to grant an accommodation.” But, as appellant points out in her complaint, “a year and a half would pass before [the County] would accommodate” her. The next month Unger requested a letter from appellant, listing which duties she could perform in her Assisted Living Services job.

In a letter dated November 27, 1999, appellant responded by stating: “[T]he only aspect of my job that is increasingly difficult for me to perform is physically driving myself to visits.” Two months after receiving that letter, in January 1999, Unger requested a letter from appellant’s physician confirming her inability to drive. Responding to Unger’s request, appellant’s physician, in a letter, dated January 15, 1999, explained that “ ‘increased fatigability as well as weakness of upper and lower extremities’... made it ‘impossible’ for [appellant] to drive. . .. ” Still unable to obtain an accommodation from the County, appellant retained private counsel to assist her. But that did not produce the results she had hoped for. For then “the efforts by [appellant] and her attorney were blocked” by John Kenney, the chief of the County’s Aging and Disability Services.

According to appellant, Kenney “delayed and prevented [her] from obtaining a reasonable accommodation by using a mistake by a union staff attorney as a pretext to avoid negotiating an accommodation.” That mistake was made by Mary Kay Cañarte, a union staff attorney. On February 11, 1999, Cañarte wrote to appellant regarding appellant’s decision to retain outside counsel. In that letter, Cañarte informed appellant that she could help her file a grievance with respect to the denial of her request for a reasonable accommodation but she could not “negotiate with outside counsel in this regard due to the potential conflict of interest.” Cañarte advised appellant to “continue to apply for positions ‘at or below the grade you hold’ ” and further stated ⁵⁸⁴ that “the County’s disability manager, Brenda Williams, could ‘assist [appellant] in this regard.’ ” But, ultimately, appellant’s counsel learned that Cañarte had misinterpreted the collective bargaining agreement and that the collective bargaining agreement did not prevent the union’s counsel from meeting with an employee’s private counsel to discuss an accommodation. Consequently, in a letter dated February 23, 1999, appellant’s counsel informed Kenney that the collective bargaining agreement did not forbid “ ‘direct communication between management and an employee (and an employee’s chosen counsel) in an effort to resolve an issue informally.’ ” But attempts by appellant’s counsel to arrange a meeting with Kenney to discuss a reasonable accommodation proved unsuccessful.

In March 1999, as Cañarte had suggested, appellant contacted Brenda Williams in the County’s Occupational Medical Services Management Program for assistance. After appellant described her physical limitations, Williams, according to appellant, agreed with her proposal that her part-time Group Home Licensing position be turned into a full-time position. On March 3, 1999, the union’s outside general counsel wrote a letter to appellant advising her that she could either pursue her rights under the statute or under the contract’s grievance procedure, and stating: “ ‘As long as the working conditions of [appellant] are affected, via your representation, in ways which do not violate the MCGEO collective bargaining agreement, the union has no objection to your representation.’ ” He added, “ ‘[n]either do we have any desire to be included in your discussions with the County.’ ” That day, appellant’s counsel sent a copy of that letter to Kenney and again requested a meeting to discuss a reasonable accommodation. Nonetheless, the next day, Kenney informed appellant’s counsel that he had not returned his calls because “he thought the union was exercising its right to represent [her]” and concluded: “ ‘[Tjherefore ...

I cannot meet with you without the Union being present.’ ” Kenney also said “that the County was already doing ‘everything possible to make an accom ⁵⁸⁵ modation for [appellant]’ so a ‘meeting with you to make that happen is really not necessary,....’” On March 22,1999, appellant learned that she was to submit to another “fitness for duty evaluation” by Dr. Flynn. Following that examination, Dr. Flynn reported that appellant “ ‘does meet the criteria eligibility of the Americans With Disabilities Act’ ”... [and] ‘that there is a medical necessity for the requested accommodations of job restructuring and or job re-assignment.’ ” On April 14, 1999, six months after appellant had requested an accommodation, appellant and her counsel finally met with Williams, Anderson, and Anne Windle, an assistant county attorney, to discuss appellant’s difficulties with her job. Appellant clarified that, in addition to having difficulty driving, she was also unable “to write for prolonged periods of time.” Williams described the “alternative options she had discussed with [appellant], including converting [appellant’s] part-time job with Group Home Licensing into a full-time job.” But Windle “incorrectly” informed them “that under the EEOC regulations, accommodations are decided by the employer and the employee has to accept whatever is offered.” Her request to either modify or replace her part-time job was denied. Instead, the County told her “to use County vouchers from a ‘Call and Ride’ program to use taxi cabs to take her to home visits and to continue her field work as a ‘temporary’ solution.” Not only did the County’s “temporary solution” not accommodate appellant’s disability, it actually exacerbated it.

For the next ten months, in “cold winter months” and “hot summer months,” appellant did as she was told and used taxi cabs to conduct her field work. Frequently having to wait an hour or two for the cabs to arrive, appellant endured “additional physical hardship,” which compounded her fatigue. Even though she notified her supervisor of the problem and explained that the “temporary solution” was making things worse, no change was made in her duties for almost a year. In April 1999, the same month the County provided the “temporary solution,” appellant learned of a supervisory posi ⁵⁸⁶ tion, requiring minimal field visits, in the Information and Assistance Unit (“IAU”).

But when she inquired about the position, she was told it would be advertised in July. In late June, appellant learned that the position had been filled before it was ever advertised. At that time, appellant’s supervisor suggested that “she seriously consider giving up full-time employment and only continue with the half-day Group Home Licensing job.” Almost a year had passed and appellant was still, according to her complaint, without a reasonable accommodation. Consequently, on September 13, 1999, appellant filed an administrative complaint with the Montgomery County Human Relations Commission (“the Commission”).

About a week later, appellant learned from a co-worker that she was being transferred to a different position in the Information and Assistance Unit. After expressing concern to her supervisor about the suitability of the transfer, she was told that a meeting would be held later that month. On October 12, 1999, appellant and her counsel again met with Kenney, Anderson, and Windle to discuss appellant’s transfer to IAU. Having previously worked in that unit, appellant was familiar with what the job entailed and felt that the position was unsuitable because it required “extensive writing and computer entry and she was suffering from weakness in her arms in addition to the weakness in her legs.” 1 In addition, appellant’s counsel repeatedly stressed that the County was legally obligated “to discuss what job an employee with a disability is able to perform in a two-way dialogue with that employee, in order to determine how to reasonably accommodate the employee’s disability.” After that meeting, in a memorandum to the County, appellant reiterated her concern that the IAU position would not accommodate her special needs.

She did express, however, a ⁵⁸⁷ willingness to discuss the situation further with Unger or any appropriate person. Two additional meetings followed but no resolution was reached. Then, on November 8, 1999, in a memorandum to Dr. Flynn, Unger suggested that appellant’s condition had changed and requested that Dr. Flynn conduct another “fitness for duty evaluation” and make a recommendation on appellant’s “ ‘ability to perform the essential functions of a Social Worker III.’ ” Appellant sent an email to Kenney informing him that she found the memorandum to Dr. Flynn to be “one-sided” and that the County had been “ ‘consistently hostile’ ” to every attempt she had made to obtain a reasonable accommodation. Kenney responded that the examination was scheduled for November 17th and that it “was needed,” he explained, “ ‘to determine your ability to perform the duties of the proposed position [in IAU] and make the specific accommodations that you will need in order for you to be successful in this new position.’ ” In an email, appellant informed Kenney that the medical examination was the County’s attempt to “cover-up for its delay and refusal to act.” She did not show up for the scheduled examination.

On November 22, appellant’s treating physician sent a letter to the County “reiterating [appellant’s] continued need for accommodations and stressing that [appellant] was able to perform her work if given an appropriate accommodation.” On December 7, 1999, Windle, the assistant county attorney, advised appellant’s counsel that by not submitting to the medical examination, appellant could be fired for insubordination. Windle explained that appellant’s difficulty in writing was the change in condition justifying the examination. But appellant’s counsel responded that there was no significant change in appellant’s disability. Unger sent the letters from appellant and her physician to Dr. Flynn and asked if he could assess her fitness for duty without another examination.

He could not. Kenney sent an email to appellant directing her to “attend a new appointment with Dr. Flynn on December 29.” Appellant responded that “because of ‘the threats of termination or disciplinary action’ ” in Windle’s letter, she “felt ⁵⁸⁸ forced to keep her appointment with Dr. Flynn.” On December 29, 1999, appellant submitted to another “fitness for duty evaluation” by Dr. Flynn. Following that examination, Dr. Flynn concluded that appellant could not perform the duties of the position in IAU and he “supported her request that her half-time Group Home Licensing position, which did not require field work, be converted into a full-time job.” Finally, on February 22, 2000, appellant was told that she could perform her half-time Group Home Licensing position on a full-time basis. Appellant nonetheless continued to press her claim before the Commission.

The parties “engaged in conciliation using Commission-appointed mediators, but were unable to reach an agreement.” On August 28, 2001, appellant filed a complaint in the Circuit Court for Montgomery County alleging disability discrimination by the Montgomery County Department of Health and Human Services, John Kenney and Judith Unger. The complaint contained two counts: the first alleged a violation of § 27-9 of the Montgomery County Code and the second a violation of § 42 of Article 49B of the Maryland Code Annotated. The complaint requested that the circuit court: 72. Declare that [the County’s] action and inaction with regard to [appellant] violates Article 49B of the Annotated Code of Maryland, and Chapter 27, Article 1 of the Montgomery County Code. 73.

Enjoin [the County] from continuing to violate Maryland Code Article 49B and Chapter 27, Article 1 of the Montgomery County Code, and prohibit them from refusing to provide reasonable accommodations to persons with disabilities, including causing an unreasonable delay in providing such accommodations. 74. Order [the County] to participate in a flexible, interactive and cooperative consultation with persons with disabilities, such as [appellant], when determining reasonable accommodations as required by the [EEOC] regulations, which are followed by Montgomery County. ⁵⁸⁹ 75. Grant [appellant] damages, including punitive damages, attorneys’ fees and costs, and any other relief the Court deems just, equitable and appropriate. In response, the County filed a motion to dismiss, claiming that appellant’s complaint failed to state a claim upon which relief could be granted because the issue was now moot: appellant had received the requested accommodation.

The circuit court granted that motion, holding that the case against the County was moot and that there was no basis for a case against either Kenney or Unger. This appeal followed. I. Appellant contends that the circuit court erred in dismissing her complaint for failing to state a claim upon which relief can be