In Townes v. Md. Dep’t of Juvenile Svcs., the plaintiff alleged that her employer, the Maryland Department of Juvenile Services, violated her rights under the Maryland Fair Employment Practices Act (“MFEPA”), by not providing a reasonable accommodation for her disability.
It is an unlawful employment practice in Maryland for an employer to “fail or refuse to make a reasonable accommodation for the known disability of an otherwise qualified employee.” Md. Code Ann., State Gov’t § 20-606(a)(4) (LexisNexis 2014).
This statutory provision is expanded upon in state regulations, which require that a covered employer
(1) Shall make a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability;
(2) Is 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) May 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.
Further, the regulations indicate that an employer commits an unlawful employment practice if it fails
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.
The Maryland Court of Appeals has interpreted the latter provision as requiring “action akin to an interactive process to identify a reasonable accommodation,” as is required in federal law, 29 C.F.R. § 1630.2(o)(3), for compliance with the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12112(a) et seq. See Peninsula Reg’l Med. Ctr. v. Adkins, 137 A.3d 211, 220 (Md. 2016). Thus, the “individualized assessment” required by COMAR 14.03.02.04(B)(3) should be similar to what federal law requires: the employer is to “initiate an informal, interactive process with the individual with a disability in need of the accommodation” to identify a reasonable accommodation. Adkins, 137 A.3d at 219 (quoting 29 C.F.R. § 1630.2(o)(3)).
The plaintiff was diagnosed with bipolar disorder in January 2012. Between September 2012 and April 2013 the plaintiff’s bipolar disorder was exacerbated by work-related stress. On March 27, 2013, plaintiff was provided a doctor’s note indicating that she was medically unable to work and that her condition would be reevaluated in two weeks. On April 4, 2013, plaintiff’s doctor completed a Leave Bank medical request form, indicating plaintiff could work in a modified capacity and stating, “She needs an office with a less than 30 minute commute somewhere other than the current office where there is an allegation of a hostile work environment.” The next day, plaintiff’s doctor wrote the Department’s Human Resources office, saying, “Once the job modifications I recommended are implemented I believe Ms. Townes can return to work full duties. I believe when implemented she will be ready for full duties by May 6th, 2013.”
The Plaintiff’s doctor concluded she was medically unable to work because of the combination of bipolar disorder and the adjustment disorder; the date of disability began March 22, 2013, and he did not anticipate her return until at least May 6, 2013.
The Regional Director for Baltimore City Region, Dwain Johnson, testified that several positions were open in Baltimore City during the relevant time period.
Plaintiff’s doctor made an additional request for reasonable accommodations on July 1, 2013, indicating in addition to his earlier requested accommodations that “community casework that requires her to drive from place to place is too stressful . . . and that she therefore, needs to work in a school or intake so that she won’t be traveling from place to place”; he also indicated it is medically necessary for her to work the day shift. The Department requested Townes submit to an independent psychological evaluation, which was completed on August 26, 2013.
Approximately one week later, Robert Toney, M.D., completed a “follow-up workability evaluation” in which he indicated Dr. Ballard had concluded “that Ms. Townes was unable to effectively perform her job duties with or without reasonable accommodations.”
Plaintiff’s doctor reviewed the list of job vacancies in 2013 when he had requested reasonable accommodations for Townes, and he opined she could have filled several of these positions, including the one in Intake in Baltimore City. He believed these positions met the restriction on driving distance and also noted they were positions she successfully performed in the past. Other than receiving a Task Analysis form to complete and return to the Department, plaintiff’s doctor was never contacted by anyone at the Department to ascertain what he meant by the particular accommodations he requested for Townes. With no other option available to her, Townes took disability retirement effective October 1, 2013.
From this evidence, the Court concluded a genuine dispute of material fact existed as to whether the Department engaged in the necessary, interactive process to conduct an individualized assessment of Townes’s ability to perform the duties required of a job, not necessarily the job she held, which necessitated her cross-state travel and which seems to have been the only job considered by the Department in response to her request for reasonable accommodation. The Court further noted that a dispute existed as to whether Townes could have been reasonably accommodated by transfer to another position. For those reasons, the court allowed this claim to proceed to trial.