It is a shame for the development of the law when useful opinions like this one go unpublished. A 2-1 panel of the Fourth Circuit wades into two EEO issues that divide the circuits, holding in this ADA case that (1) appellate review of a district court order granting equitable tolling of the 90-day limitations period is only for abuse of discretion, not de novo; and (2) reasonable accommodation of an employee's disability may require advising the employee of available opportunities to transfer.
Crabill v. Charlotte Mecklenburg Board of Education, No. 10-1539 (4th Cir. Apr. 20, 2011): The employee, a high school counselor, was diagnosed in 2003 with Chari Malformation, a brain stem defect that can cause weakness, dizziness, pain, memory problems and vertigo. The employee accordingly sought accommodations that she not be required to carry heavy items or drive at night, and that her caseload be reduced. The principal granted the first two accommodations, but not the caseload reduction, despite that it was indicated as a medical restriction in her treating doctor's report.
The employee requested - but did not receive - transfers to middle schools in the school years that followed. The defendant's HR representatives allegedly failed to advise Crabill of available vacancies in middle schools (this fact is disputed), although they did mention one transfer opportunity to another high school that nevertheless would have presented the same workload problem. By 2008, the employee (whose workload was never reduced) took disability retirement.
The panel majority reverses summary judgment on the employee's ADA discrimination and reasonable accommodation claims.
There was a threshhold limitations issue on which the school board took a cross-appeal, arguing that the employee's civil action was filed more than 90 days following that date on which the employee presumptively received her EEOC right-to-sue letter. The notice was sent by the EEOC on April 22, 2008; the Fourth Circuit presumes receipt three days after mailing; and the case commenced July 24, 2008.
The district court held that the 90-day period was equitably tolled under the following circumstances:
"[T]he 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."
The school district claimed that this finding was subject to de novo review, but the panel majority holds (in line with the majority of the circuits) that a lower court decision to equitably toll limitations is only subject to lesser "abuse of discretion" appellate review. It affirms the district court ruling on this basis.
On the merits, the panel majority holds that the employee presented a genuine issue of material fact about whether the school district deprived her of reasonable accommodations (and discriminated against her) by not advising her of transfer opportunities to middle schools and -- as a result -- essentially forcing her to take disability retirement to protect her health:
"On April 12, 2007, Crabill told [HR representative] 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 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."
Dissenting, Judge Niemeyer would have held (1) that the district court abused its discretion by equitably tolling the 90-day limitations period, and (2) in any event, summary judgment was appropriate on the merits because the employee failed to prove, as part of her prima facie case, that there were vacancies available at the time she sought the accommodation.