             REPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND

               No. 712

        September Term, 2014



        TRACEY L. ADKINS

                  v.

 PENINSULA REGIONAL MEDICAL
           CENTER




   Leahy,
   Friedman,
   Thieme, Raymond G., Jr.
          Ret’d, Specially Assigned

                JJ.


         Opinion by Leahy, J.


         Filed: July 30, 2015
      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 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 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

       1
       The court granted PRMC’s Motion for Summary Judgment in an order entered
on May 20, 2014, and Ms. Adkins filed her notice of appeal on June 11, 2014.


                                            2
“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 (2001).




                                            3
   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 23 she received a steroid

injection in her hip, which alleviated the pain, and she returned to her post the next day.


                                            4
Ms. Adkins’s superiors, Scott Phillips (director of materials management services) and

Pat Stevenson (control stores inventory control coordinator), were apprised of these

events.

       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 acetabuloplasty,

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


       2
        Ms. Adkins began applying for other positions at PRMC during the months
(continued . . . )

                                             5
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 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.”


leading up to her surgery, including: Aide – Physical Therapy; CNA Trainee; Code
Abstractor II; Coordinator – Emergency Admitting; Parking Attendant; Patient Service
Rep – Medical Group; Registrar – Outpatient; Representative – Billing/Collection –
Medical Group (two positions); Representative – Patient Account; and Service Desk IT-
Technician (two positions).


                                            6
       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 “[s]edentary [w]ork: [l]ifting 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 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


                                             7
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 PMRC’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 positions: Registrar-Emergency

Admittance;    Receptionist;   Representative–Billing/Collection-Medical    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


       3
         It appears that during her initial 12-week FMLA leave, a temporary employee
filled Ms. Adkins’s storekeeper position. The position was permanently filled following
the expiration of her 12-week leave.
       4
         The date on this note reflected the year of 2011, but all parties agreed that the
actual year was 2012. On the medical report form, the doctor had checked both the box
indicating that Ms. Adkins “may return to pre-injury job without restriction” and the box
indicating there was a restriction; namely, that she was still limited to performing
sedentary work, as reflected by the November 10, 2011, medical report. Ms. Adkins
understood this note to mean that she was still limited to sedentary work.


                                            8
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; and deposition excerpts of PRMC

employees, including Ms. Adkins’s supervisors, human resources personnel, and benefits


       5
         Ms. Adkins had also filed a complaint with the United States Equal Employment
Opportunity Commission on July 27, 2012. As explained further infra, Ms. Adkins, as an
employee alleging disability discrimination in the workplace, had the option of filing a
civil action in the circuit court following her filing of a complaint with the EEOC. See
SG § 20-1013.


                                            9
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 (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


                                            10
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 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.

       6
        The court stated that it would “dismiss Count # 2 with prejudice”; however, the
order simply entered judgment in favor of PRMC. In any event, Ms. Adkins does not
challenge the court’s ruling as to Count 2 on appeal.


                                            11
                                      DISCUSSION

                                             I.

   A. Standard of Review

       Ms. Adkins contends that the circuit court erred in granting PRMC’s motion for

summary judgment. Maryland Rule 2-501 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 (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 (2003)

(citing Green v. H & R Block, Inc., 355 Md. 488, 502 (1999); Heat & Power v. Air

Prods., 320 Md. 584, 590-92 (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


                                            12
correct result as a matter of law.” Id. (citing Tyma v. Montgomery Co., 369 Md. 497, 504

(2002); Murphy v. Merzbacher, 346 Md. 525, 530-31 (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.

   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 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



                                            13
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 broadened 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 (2012)


      7
         The ADA Amendments Act is commonly referred to as the “ADAA.” To the
extent that we reference the ADA as well as the ADAA in this opinion, we refer to both
enactments collectively as the “ADA” unless otherwise noted.
      8
        Under the federal definition, disability means “a physical or mental impairment
that substantially limits one or more major life activities”; “a record of such an
impairment”; or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1).
“Major life activities” include, but are not limited to, “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.” § 12102(2)(A). They also include “the operation of a major bodily function,
including but not limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
(continued . . . )

                                           14
(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 (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).

       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


reproductive functions.” § 12102(2)(B). The provision explicitly provides that the
definition of disability “shall be construed in favor of broad coverage of individuals
under this chapter” and that “[t]he term ‘substantially limits’ shall be interpreted
consistently with the findings and purposes of the ADA Amendments Act of 2008.” §
12102(4)(A)-(B).


                                            15
employment practice occurred. Md. Code (1957, 2003 Repl. Vol), 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


       9
          An employee must exhaust the administrative remedies found in SG § 20-
1013(a), which provides that the employee may bring a civil action in his or her own
right so long as: (1) he or she “initially filed a timely administrative charge or a complaint
under federal, State, or local law alleging an unlawful employment practice”; (2) “at least
180 days have elapsed since the filing of the administrative charge or complaint”; and (3)
“the civil action is filed within 2 years after the alleged unlawful employment practice
occurred.”


                                             16
separate ground for an illegal employment practice. Id. The 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




       10
            See 42 U.S.C. § 12112.


                                            17
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)(1)(i); see also COMAR §

14.03.02.04(A)(2) (establishing various forms of unlawful employment discrimination

against “a qualified individual with a disability,” including “[h]iring, 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)(1) 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



                                             18
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.” COMAR § 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 (2009); Gaither v.

Anne Arundel Cnty., 94 Md. App. 569, 583 (1993); Md. Comm’n on Human Relations v.

Mayor & City Council of Balt., 86 Md. App. 167, 176 (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 uncontroverted 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


                                            19
Md. App. at 583 (“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)); cf. Zei v. Md. Transit Admin., 433 Md. 254, 271 (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, 134 S. Ct. 942 (2014). Under Maryland law, a “reasonable accommodation” may

include “job restructuring”; “[r]eassigning 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).

       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


       11
          Ms. Adkins also argues that PRMC could have provided her additional leave.
There is no evidence in the record, however, to demonstrate that Ms. Adkins knew when
she could return to work with fewer restrictions; in fact, at the time of her deposition, she
still had not been released for full duty. See Wilson v. Dollar Gen. Corp., 717 F.3d 337,
346 (4th Cir. 2013) (rejecting plaintiff’s argument that leave was a reasonable
accommodation, because although the plaintiff requested a definite amount of leave, he
failed to present evidence that the leave would have permitted him to perform the
essential functions of his position at the time of his requested return date). Moreover, at
the time Ms. Adkins’s extended FMLA leave expired, she did not hold a position at
(continued . . . )

                                             20
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



PRMC, thereby leaving her unable to show that she could have performed the essential
functions of a potential, unknown vacant position available at the time her leave would
have expired. We note that PRMC suggests that it afforded Ms. Adkins a “reasonable
accommodation” in the form of extended leave under the FMLA, but extended leave
permitted under the FMLA does not necessarily satisfy the reasonable accommodation
requirement under the MFEPA, especially where PRMC arguably had notice that Ms.
Adkins still could not perform the essential functions of her position following that
additional FMLA leave.
       12
          The ADA’s definition of a “qualified individual with a disability” is “an
individual who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.” 42 U.S.C. §
12111(8). The distinction between the MFEPA and the ADA definition lies in the
description of “employment position” for which the employee must perform the essential
functions. Under Maryland law, the regulation refers to “the job in question,” COMAR §
14.03.02.02(B)(10), whereas under federal law, the statute refers to the “position that
such individual holds or desires.” 42 U.S.C. § 12111(8). But the courts have considered
the two definitions “nearly identical.” See Caire, 982 F. Supp. 2d at 599. As well, the
ADA’s definition of a “reasonable accommodation” is consistent with the definition in
(continued . . . )

                                             21
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 [c]ompany 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 disability discrimination and failure to accommodate, we focus our

the MFEPA in so far as it provides that an accommodation includes “reassignment to a
vacant position.” 42 U.S.C. § 12111(9)(B).


                                          22
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 (citing Md.

Comm’n on Human Relations, 86 Md. App. at 178; Jasany v. U.S. Postal Serv., 755 F.2d


                                            23
1244, 1249-51 (6th Cir. 1985)); see also Reyazuddin v. Montgomery Cnty., Md., ___ F.3d

___, ___, No. 14-1299, slip op. at 15 (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 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 Educ., 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., ___ F. Supp. 3d ___, ___ Civil No. CCB-13-3075, slip op. at 16 (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


                                           24
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] 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


                                           25
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; 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


                                           26
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:

       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



                                             27
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 346-67. 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
       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


                                            28
       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)), 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 (explaining that using federal cases to construe

similar Maryland statutes is appropriate, but not when the statutes are different and could

be construed to have different meanings); Haas, 396 Md. at 492 (“While it certainly is

permissible to have recourse to federal law similar to our own as an aid in construction of


                                              29
Maryland statutory law, it should not be a substitute for the pre-eminent plain meaning

inquiry of the statutory language under examination.” (citation omitted)). Thus, because

of the difference between the federal and Maryland regulations, we cannot simply adopt

the federal judicial and regulatory approaches to the interactive process, as advocated by

Ms. Adkins.

      Rather, we agree that COMAR § 14.03.02.04(B)(3) requires action akin to the

interactive process; that is, an individualized assessment by the employer of the

employee’s abilities to perform the essential functions of a job.        In our view, the

“individualized assessment” provides stronger protection for the employee than the

federal “interactive process” regulation because it explicitly provides that failure to

conduct an individualized assessment constitutes an unlawful employment practice.

Indeed, this provision necessarily imposes a clear, unambiguous obligation on the

employer, which, in turn, extends protection to the disabled employee.

      Moreover, because the COMAR regulation refers to “a job,” not simply the job

that the employee held, we do not interpret the individualized assessment requirement to

be constrained to mean the job previously held by the employee; instead, we read it to

require an employee-specific evaluation and a consideration of the essential functions of

a job. In this case, the individualized assessment would include considering the vacant

positions to which Ms. Adkins applied or, alternatively, another position available during

the relevant time period in which PRMC could have transferred Ms. Adkins. Thus, when

viewed in conjunction with the statutory requirement that an employer must provide a

reasonable accommodation to an “otherwise qualified” employee with a known disability


                                           30
absent undue hardship to the employer, SG § 20-606(a)(4), the “individualized

assessment” requires an employer to assess the capabilities of the disabled employee to

determine whether the employee is “otherwise qualified” for a vacant position and what

reasonable accommodation may be made, including reassignment. In addition, in order to

make an “individualized assessment,” the employer would need to acquire an

understanding of the employee’s capabilities to perform various tasks as well as any

impediments of the job that can be accommodated.

       When viewed in the light most favorable to Ms. Adkins, we conclude that the

record generates a genuine dispute of material fact regarding whether PRMC conducted

an individualized assessment of Ms. Adkins. On one hand, according to PRMC, its

Human Resources Department attempted to contact Ms. Adkins without success. Sara

“Mitzi” Scott, Director of Human Resources, attested in an affidavit that “[w]hile Ms.

Adkins was on leave, PRMC 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.” She similarly testified in her deposition that the “recruitment team tried to reach

[Ms. Adkins] to see what she could do.” From this information, a jury could determine

that Ms. Adkins refused to participate in the requisite individualized assessment process.

       On the other hand, according to Ms. Adkins, PRMC did not assist her with finding

an accommodation. She testified in her deposition that PRMC advised that she should

start applying to vacant positions, but did not help her in identifying any specific position.

She further averred in her affidavit, “I recall speaking with Nikki Morris [with Human

Resources] about the Core Tech position [to which I applied], but do not recall her


                                             31
bringing up any other jobs I could do.”

      It also unclear whether any of Ms. Adkins’s PRMC supervisors made any

assessment of her capabilities. Mr. Phillips, director of the Materials Management

Department, explained that because Ms. Adkins’s surgery was a “personal choice”

instead of a work-related injury, “[he] didn’t take into consideration any legal

requirements to consider her with a disability.” He also testified that Ms. Adkins would

not be able to satisfy the physical requirements of lifting and walking for the inventory

control position to which she applied based on her restrictions, although he conceded that

he did not consider whether the position could be modified to accommodate her.        Mr.

Bunk similarly testified that there were no sedentary positions in the Central Stores

Department and, therefore, he did consider whether Ms. Adkins could be accommodated.

Whether PRMC engaged in an individualized inquiry is a question of fact on which this

record contains conflicting evidence. Thus, it was inappropriate for the trial court to

grant summary judgment.

      c.     Qualified Individual with a Disability: The Existence of Vacant Positions
             for which Ms. Adkins Was Qualified

      Even if a fact-finder were to conclude that PRMC failed to conduct an

individualized assessment of Ms. Adkins, an employee does not automatically have a

cause of action for failure to accommodate under the MFEPA based simply on this

finding. Analogously, in the federal context, an employee does not have a cause of action

under the ADA simply because the employer failed to engage in the interactive process.

See, e.g., Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir. 2015).



                                           32
Rather, under both state and federal law, the employee still must identify a reasonable

accommodation that could have been possible. Cf. Wilson, 717 F.3d at 346-47; cf. U.S.

Airways, supra, 535 U.S. at 401 (reiterating that the ADA does not “demand action

beyond the realm of the reasonable”).

      “Nearly every circuit court, including the Fourth Circuit, has held or strongly

suggested that the Plaintiff bears the initial burden of requesting, identifying, or

proposing a reasonable accommodation.” Bennett v. Kaiser Permanente, 931 F. Supp. 2d

697, 716 n.4 (D. Md. 2013) (citations omitted); see also Duvall v. Georgia-Pacific

Consumer Prods., L.P., 607 F.3d 1255, 1263 (10th Cir. 2010) (“[A]t the summary

judgment stage, the plaintiff-employee bears the burden of specifically identifying a

vacant position, reassignment to which would serve as a reasonable accommodation.”

(citing Taylor, 196 F.3d at 1110)); Cravens, 214 F.3d at 1019-20 (stating that in order to

be transferred to a different position, the employee “must ‘satisfy the legitimate

prerequisites for that alternative position, and . . . be able to perform the essential

functions of that position with or without reasonable accommodations’” (quoting Dalton

v. Subaru-Isuzu Auto., Inc., 141 F.3d 677, 678 (7th Cir. 1998))).        We consider an

equivalent burden to be contemplated by Maryland disability discrimination law; indeed,

the plaintiff’s overall case cannot prevail at trial absent facts capable of supporting a

rational jury’s finding that a reasonable accommodation existed. Thus, we hold that a

plaintiff must identify a vacant position to which he or she could have been reassigned as

a reasonable accommodation.

      To that end, Ms. Adkins argues that she identified and in fact applied for


                                           33
numerous vacant positions both during her FMLA leave and following her termination

for which she was qualified. Alternatively, she argues that the circuit court erred in

denying her motion to compel PRMC to produce a list of all vacancies available at

PRMC at the time she requested an accommodation, which we discuss infra in Part II of

our discussion.   At this juncture, we forecast our wariness of a grant of summary

judgment on a failure-to-accommodate claim in lieu of permitting a plaintiff to access, if

sought, information about all available vacancies during the relevant time period, as it is

the plaintiff’s burden to identify a vacant position constituting a reasonable

accommodation. Indeed, although the employee may not have discovered and applied to

the vacant position, the employer, upon receiving adequate notice of the need for an

accommodation, is in a far better position than the employee to determine whether a

position exists that the employee with a disability could perform.

       As described earlier, Ms. Adkins applied for at least ten separate jobs before her

termination and then submitted applications for another four positions after her

termination. The circuit court concluded that Ms. Adkins was not qualified to perform

the essential functions of any of these positions. We agree that it is beyond factual

dispute that many positions required a requisite number of years of experience or skills

beyond which Ms. Adkins had demonstrated that she possessed.13 However, it is not


       13
          For example, Ms. Adkins has not established that she had the requisite
experience for the following: Code Abstractor I (one to two years of experience in
computer entry and Microsoft Windows); Patient Service Rep–Medical Group (minimum
of three years of experience in secretarial work and experience with Microsoft Office
preferred); or Monitor Technician (successful completion of basic cardiac rhythm
(continued . . . )

                                            34
immediately clear that Ms. Adkins could not perform the essential functions of all the

jobs to which she applied.

       Although neither the Maryland Code nor COMAR define the meaning of

“essential functions” of a job, this Court has established that job descriptions and

testimony from the employer are relevant to that determination. See Gaither, 94 Md.

App. at 579-82 (citing Guinn v. Bolger, 598 F. Supp. 196, 202 (D.D.C. 1984); Hall v.

U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988)). Federal regulations provide us

with further insight, identifying, for example, factors relevant to this analysis: written job

descriptions; “[t]he employer’s judgment as to which functions are essential”; “[t]he

amount of time spent on the job performing the function”; “[t]he consequences of not

requiring the incumbent to perform the function”; “[t]he work experience of past

incumbents in the job”; and “[t]he current work experience of incumbents in similar

jobs.” 29 C.F.R. § 1630.2(n)(3). “Although the issue of whether a function is essential

requires the weighing of evidence and is generally a question for the jury, it can be

decided on summary judgment if no reasonable jury could find that a certain function is

or is not essential.” Fleetwood, 380 F. Supp. 2d at 699; cf. Gaither, 94 Md. App. at 590

(stating that “determination of whether ‘legitimate physical qualifications may be

essential to the performance of certain jobs’ and ‘determination of whether

accommodation is possible are fact specific issues.’” (emphasis in original) (quoting Hall

v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988))). Thus, on the record before

recognition course required; successful completion of medical terminology course
preferred; and six months experience with cardiac monitoring preferred).


                                             35
us, we examine more closely the essential functions of the core technician and inventory

control coordinator positions to which Ms. Adkins applied.

                i.   Core Technician

       Ms. Adkins specifically argues that the evidence generates a factual dispute as to

whether she could perform the essential functions of the “core technician” position with

an accommodation. In considering the above-cited factors, we disagree for the reasons

explained below, and hold that there was no genuine dispute of material facts and that the

trial court was correct in determining that Ms. Adkins could not perform the essential

functions of the core technician position.

       PRMC’s job description for this opportunity reflected the following requisites and

descriptions:

        Job Summary: “The primary function of the Core Tech is to provide
         both product support and information to the clinical staff of the
         [Operating Room], Central Processing and Cath Lab. Customer service
         is the focus to provide products, instrumentation and information
         necessary to meet supply needs in surgical services, central processing
         and the cath lab.”

        Education: “Minimum - High School diploma or equivalent required.”

        Experience: “Prior Central Processing or [Operating Room] experience
         desirable”; “Basic computer skills with Data Entry capability required.”

        Physical Activities: 2/3 of the time standing, 2/3 of the time walking,
         under 1/3 of the time sitting; 2/3 of the time stooping, kneeling,
         crouching or crawling; 2/3 of the time computer use; 2/3 of the time
         lifting up to 24 lbs, and 1/3 of the time lifting up to 50 lbs. Must be able
         to lift up to 50 lbs. unassisted.

PRMC considered the position to be physically demanding.             Laura McIntyre, the

Operating Room Materials Manager (and supervisor of the core technicians), explained

                                             36
that a core technician is responsible for taking inventory, organizing, maintaining

paperwork, and putting orders away, which entails lifting instrumentation sets of 25-30

pounds apiece. A former core technician testified in her deposition that she would lift

and handle various items ranging from 10 to 50 lbs. She stated that she and her co-

workers would handle 15 items of this weight daily, and that she would handle five to ten

50-pound items herself on average daily. In her affidavit, Ms. Scott averred that the

position “cannot be performed with the sedentary restrictions” and that “[n]o

accommodation could be made permitting Ms. Adkins to perform those positions without

removing essential job functions from the position[].”

       Ms. Adkins, however, believed she could have performed the position’s

responsibilities. In her affidavit, Ms. Adkins averred:

       I could have performed [t]he Core Technician position because I could have
       obtained assistance from other Core Technicians with the lifting. By
       January I was getting better and would have been able to do the walking
       part of the position when the restrictions expired.

Ms. Adkins further explained in her deposition that although the job requirements

involved functions with which she was having trouble, she applied anyway because these

tasks were not as continuously demanding as her former storekeeper position and that she

needed to remain employed, even if she was in pain while doing her job. Moreover, Ms.

Adkins had knowledge that Justine Custis, another core technician, had the lifting

requirement “waived.” Ms. Custis testified in her deposition that when she is faced with

an object weighing more than 20 lbs., she receives assistance from another employee.




                                            37
       Ms. Adkins interviewed with Ms. McIntyre on November 22, 2011, for this

position and advised she thought she would be able to perform the physical tasks of the

position, just not constantly all day long.       According to Ms. Adkins, Ms. McIntyre

responded that she could not extend a job offer because of her hip condition and the risk

of her needing more surgeries. Ms. McIntyre, on the other hand, stated that Ms. Adkins

was not hired because she “needed a body at that time” and Ms. Adkins had not yet been

released for full duty.

       Even viewing the evidence in the light most favorable to Ms. Adkins, we conclude

that there is no genuine dispute of material fact that lifting is an essential function of the

core technician position. The job description provides that 2/3 of the time is spent lifting

items up to 24 lbs. and that 1/3 of the time is spent lifting items up to 50 lbs. The former

core technician testified that the position required daily lifting, and Ms. McIntyre testified

similarly. Moreover, Ms. Adkins believed she could perform the position if she could

receive help with the lifting from another employee, as Ms. Custis did. First, we note that

an employee’s subjective belief that he or she could have fulfilled the essential functions

of the job is not dispositive. See Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir.

2003). But more importantly, an employer is not required to transfer job responsibilities

to another employee to satisfy its obligation to reassign.14 See, e.g., Martinson v. Kinney


       14
         Other limitations on the employer’s duty to reassign a disabled employee to a
vacant position may include: (1) an employer is not required to create a new position for
the employee; (2) the position must actually be vacant, in that the employer does not have
to “bump” another employee from the position to reassign the disabled employee; (3) a
position may not be considered vacant if, under a collective bargaining agreement,
(continued . . . )

                                             38
Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997) (“The ADA simply does not require an

employer to hire an additional person to perform an essential function of a disabled

employee’s position.” (citing 29 C.F.R. Pt. 1630, App. at § 1630.2(o))); Champ v.

Baltimore Cnty., 884 F. Supp. 991, 999 (D. Md. 1995) (stating that an employer is not

required to eliminate the essential functions of a job), aff'd sub nom. Champ v. Baltimore

Cnty., Md., 91 F.3d 129 (4th Cir. 1996); see also Fjellestad v. Pizza Hut of Am., Inc., 188

F.3d 944, 950 (8th Cir. 1999) (“While job restructuring is a possible accommodation

under the ADA, . . . an employer need not reallocate or eliminate the essential functions

of a job to accommodate a disabled employee.”). Ms. Adkins’s request for assistance

with lifting would excuse her from performing that essential function; it would not enable

her to perform it. See Moore v. Jackson Cnty. Bd. of Educ., 979 F. Supp. 2d 1251, 1265

(N.D. Ala. 2013) (“[P]laintiff's request would not allow her to perform the essential

functions of her job; instead, it would exempt her from performing those functions.”).

Although the foregoing cases are all federal cases interpreting the federal ADA, we know

of no reason why an employer should be required to transfer job responsibilities to

another employee to satisfy its obligation to reassign under Maryland law.

      In addition, there is nothing in the record to support Ms. Adkins’s bald allegation

that PRMC sanctioned Ms. Custis’s request for assistance from her coworkers as an

another employee has a vested priority right to the vacant position; and (4) the employer
is not required to promote the employee in order to reassign. Midland Brake, Inc., 180
F.3d at 1174-78. The Supreme Court in U.S. Airways v. Barnett, 535 U.S. 391, 403
(2002), established, for example, that an employee’s request for reassignment to a
particular position conflicted with seniority rules and, therefore, was not “reasonable” as
a matter of law.


                                            39
accommodation or waiver. This distinguishes the instant case from, for example, Iowa

Beer & Liquor Control Dep’t Store 1023 v. Iowa Civil Rights Commission, 337 N.W.2d

896, 899 (Iowa Ct. App. 1983), cited by Ms. Adkins, where the employer’s testimony

provided support for the conclusion that the employer-store could have accommodated

the disabled employee unable to do heavy lifting. Thus, the evidence on summary

judgment reflects that no reasonable jury could find that Ms. Adkins was “otherwise

qualified” for the core technician position, because she was unable to perform the

essential function of lifting.

                ii.   Inventory Control Coordinator

       Ms. Adkins argues that the evidence reflects, at least a factual dispute, as to

whether she could perform the essential functions of the “inventory control coordinator”

position. In considering the aforementioned factors, we agree that there is a dispute of

material fact on this point.

       PRMC’s job description for this position reflected the following requisites and

descriptions:

        Job Summary: “Responsible for maintaining control of the inventory
         asset account in the Cardiac Catheterization and Electrophysiology labs.
         This includes overseeing the daily ordering, receiving, and issuing
         functions. It also includes completing all adjustments, physical
         inventories, cycle counts, and par level distributions. Must work closely
         with finance to maintain integrity between physical and perpetual
         inventory. Assists where necessary in the ordering of inventory items.
         Recommends and supports goals and objective[s] that are consistent
         with the mission statement of Peninsula Regional Medical Center.
         Delivers exceptional quality and service to all patients and other
         customers.”

        Education: “High School graduate preferred, College graduate


                                           40
          preferred”

       Experience: “Bachelor’s Degree or 4 years Medical/Surgical Supply or
        Logistic experience required. Valid driver’s license and verification of
        insurability under Peninsula Regional Medical Center’s automobile
        insurance plan.”

       Physical Activities: 1/3 of the time standing, 1/3 of the time walking,
        1/3 of the time sitting. 2/3 of the time using computers. 1/3 of the time
        using equipment. 1/3 of the time stooping, kneeling, crouching or
        crawling. Under 1/3 of the time lifting up to 10-50 lbs. Must be able to
        lift up to 50 lbs. unassisted.

      In her affidavit, Ms. Adkins demonstrated that she had previous experience

working in Inventory Control:

              I was an assistant to Sherry Pruitt in the Heart Center Inventory
      Control, commonly referred to as the “Cath Lab,” from about 2005 through
      2010, and am familiar with the work. . . . I heard about the Inventory
      Control Coordinator position and on January 17, 2012 sent an email to
      Scott Phillips, Director of Materials Management and Laura McIntyre, OR
      Materials Manager (Ex. 19, 22) to be considered for the position . . . . I
      know I could have performed the work because, having worked there for
      four years, there is very little heavy lifting. The primary heavy item which
      needed to be handled by the Inventory Control Coordinator on a regular
      basis were boxes with Intra Venous (IV) fluid bags, weighing more than
      20lbs, which had to be received and stored. I could have easily handled
      these boxes by opening the boxes and taking out the IV bags individually.
      Each of the bags weighed less than 5 lbs. There was generally about one
      hour of walking during the course of a day to the Cath and EP labs to take
      inventory every day and put the supplies out where they belonged. The
      supplies that were received were usually brought up by some one else from
      Central Stores. The position was mentally demanding because of the need
      to track inventory and computer input required for the position.

Ms. Adkins further testified during her deposition that she was familiar with the physical

requirements of the position; that such requirements were “a lot less than when I was up

there”; and that from her experience, she felt she would be able to do the actual job but

perhaps not exactly what PRMC had described the job to entail in its description.


                                           41
       According to PRMC, however, the position was physically demanding. PRMC

points to deposition testimony from Sherry Pruitt, who formerly worked as an inventory

control coordinator. She affirmed that the position was physically demanding; that she

was on her feet often; and that she did a lot of walking. Mr. Phillips also testified in his

deposition that Ms. Adkins would not be able to satisfy the physical requirements of

lifting and walking based on her restrictions. Ms. Scott testified in her deposition that

Ms. Adkins could not fulfill the position because of the lifting and walking and that she

remembered that the job is physical; “[i]t’s not sedentary. It’s not sitting at a desk.” In

her affidavit, she also averred that the position “cannot be performed with the sedentary

restrictions” and that “[n]o accommodation could be made[.]”

       In an e-mail dated January 17, 2012, Ms. Adkins contacted Mr. Phillips and Ms.

McIntyre, asserting that she had learned about the inventory control coordinator position

opening. She stated,

       With my prior position in the Cath Lab as the assistant I was wondering if I
       would be considered for the position. I am still released under Doctors
       orders under sedentary work but [from] prior knowledge of the job I know
       that the job is mostly sedentary and I do have the experience and know how
       for the position.

Upon receiving this e-mail, Mr. Phillips contacted Ms. Scott, who advised that

“[e]mployees that are on extended leave are encouraged to apply for positions” but asked

whether Ms. Adkins “worked in the cath lab in the past and was moved to a different

position.” Mr. Phillips responded that Ms. Adkins did formerly work there, but queried,

“How can she apply when she cannot physically do the job? Just curious. The position is

not conducive to being sedentary.” The e-mails indicate (and a jury might well infer) that


                                            42
Mr. Phillips and Ms. Scott likely thereafter met in person to discuss Ms. Adkins’s interest

in the position. On January 18, 2012, Mr. Phillips responded to Ms. Adkins:

              I spoke to Mitzi about your interest in the Cath Lab position and we
       would need to have a full release from our doctor before you would be able
       to apply for a position.

               Do you have an idea as to when you will have a full release without
       restrictions?

During her deposition, Ms. Adkins testified that she did not respond to the e-mail because

she did not know the answer to the question posed and that no one from PRMC followed-

up with her regarding the position either.

       When viewing the evidence in the light most favorable and drawing all inferences

in favor of Ms. Adkins, we conclude that there is a genuine dispute of material fact

regarding whether Ms. Adkins could perform the essential functions of this position. We

have explained that the employee “need not be able to perform all the duties of the job at

issue—rather, he must only be able to perform the essential duties of the job.” Gaither,

supra, 94 Md. App. at 578 (emphasis added) (citations omitted). There is no doubt that

the inventory control coordinator position entails some physical tasks, but neither the job

description nor the deposition testimony conclusively establish that the walking and

lifting requirements are “essential” to the functionality of the position, such that judgment

should be entered as a matter of law instead of submitted to a jury to fulfill its fact-

finding endeavor. The job description provides that 1/3 of the time is spent standing and

walking, and less than 1/3 of the time is spent lifting—that the position involves

standing/lifting does not necessarily mean, on this record, that those duties are essential.



                                             43
       Moreover, Ms. Adkins’s assertions regarding her capacity to fulfill the duties of

the position do not constitute an unfounded belief that would be immaterial to our

analysis. Ms. Adkins had first-hand knowledge from working in the Cath Lab for over

four years. Her affidavit and deposition testimony relate to “[t]he work experience of

past incumbents in the job,” and are evidence of the essential functions of a job under 29

C.F.R. § 1630.2(n). Her alternative method of breaking down heavier items for lifting

also could have been feasible if considered. Therefore, what the essential functions of the

inventory control coordinator included, as well as whether Ms. Adkins could perform

those functions, are questions of fact.

       We disagree with Ms. Adkins’s contention that Mr. Phillips’s statement in his e-

mail that she would have to be returned to full duty constituted a “100% healed”

requirement amounting to per se disability discrimination. An employer’s obligation to

provide an accommodation is limited to providing a reasonable accommodation, and it

was PRMC’s position that Ms. Adkins would need to be released to full duty. It did not

require her to be completely healed, but rather, to be sufficiently healed to perform the

essential functions of the job.

       PRMC emphasizes that Ms. Adkins failed to formally apply for the position. 15 For


       15
          A fact-finder could reasonably conclude that Ms. Adkins did not formally apply
because Mr. Phillips affirmatively stated in his e-mail that she could not be hired until she
could be released to full duty. Moreover, she did request to be considered. It could also
be reasonably found that Ms. Adkins did not respond to the e-mail because she did not
know the answer to Mr. Phillips’s question, or, equally so, that she neglected to engage in
a conversation with PRMC regarding her qualification for the position at all. These
issues are ripe for fact-finding.


                                             44
a failure-to-accommodate claim, where the employee provided adequate notice that he or

she has a disability and needs an accommodation, we do not consider a formal

application to a particular position to be necessary. Indeed, many federal courts have

even reached the broader conclusion that the obligation to reassign in the context of a

failure to accommodate claim is not even limited to reassigning the employee to an actual

vacant position, but also those that may soon become vacant—positions to which the

employee could not have even applied. See, e.g., Cravens, 214 F.3d at 1019 n.5.

       d.     PRMC’s Refusal to Make a Reasonable Accommodation

       The last element of the prima facie case for failure-to-accommodate is whether

PRMC refused to make the reasonable accommodation. We have concluded that there

were genuine disputes of material fact regarding whether Ms. Adkins was a qualified

individual with a disability, i.e., whether she requested an accommodation and could have

performed the essential functions of the inventory control coordinator position as to make

that reassignment a “reasonable accommodation.” Whether PRMC refused to make a

reasonable accommodation based on the foregoing is also an issue requiring factual

resolution.

       As noted, once an employee identifies a reasonable accommodation, the burden

shifts to the employer—here PRMC—to show that the accommodation would be

unreasonable or would constitute an undue hardship.         PRMC does not make these

arguments on appeal, although they may be raised on remand. PRMC does, however,

refer to a light duty policy that precludes light duty work for injured employees unless

there is a significant need for the work. Ms. Scott testified in her deposition that before


                                            45
2013, light duty was only provided “under extreme circumstances, when we had a dire

need for staffing and for functions to be performed for patient care.” This policy applied

to both work-related injuries and personal injuries.16      Melissa Mattox of PRMC’s

Employee Health Office testified that in 2011, light duty was “discouraged,” but

available. We consider such a blanket “no light duty” policy without some justification

to teeter on the edge of per se disability discrimination, as it could prevent the employer

from considering a reasonable accommodation to facilitate the disabled employee’s

ability to perform the essential functions of a particular position, as required by the

MFEPA.      Indeed, as the Supreme Court has stated, “[t]he simple fact that an

accommodation would provide a ‘preference’—in the sense that it would permit the

worker with a disability to violate a [neutral] rule that others must obey—cannot, in and

of itself, automatically show that the accommodation is not ‘reasonable.’” U.S. Airways,

535 U.S. at 398.

      Here, PRMC did not frame the policy as necessary for the department to operate

or for a safe work environment. As noted, PRMC could show, if it is the case, on remand

that light duty work in the Materials Management Department was unreasonable or

would cause an undue hardship on its business. But PRMC has not cast the policy in this

light. Thus, to the extent that this policy is raised to support PRMC’s actions in not

providing an accommodation to Ms. Adkins, we reject it at this juncture.


      16
          In 2013, PRMC changed its policy to only afford the light-duty option to
employees who were injured on the job; this policy change occurred after the instant
lawsuit commenced.


                                            46
   2. Disability Discrimination

       We next turn to the “disability discrimination” claim based on actual disability.

To assert a prima facie case for disability discrimination, a plaintiff must show three

elements: (1) that he or she has a disability; (2) that notwithstanding that disability, he or

she was otherwise qualified for the employment with or without reasonable

accommodation; and (3) he or she was excluded from employment on the basis of his or

her disability. See Ridgely, supra, 164 Md. App. at 232 (citations omitted). As noted

supra, PRMC does not challenge the court’s conclusion that Ms. Adkins is disabled. It

also does not argue that Ms. Adkins was terminated for some independent reason other

than her disability, aside from its argument that she was not qualified17 or that her FMLA

leave had been exhausted.18 Thus, the element in dispute is whether Ms. Adkins was a

qualified individual with a disability.


       17
          There is evidence in the record, which is mentioned in the briefing, that Ms.
Adkins was involved in a substance abuse program pursuant to an agreement with
PRMC. Specifically, there was evidence that Ms. Adkins failed to comply with this
program, which was a ground for termination. However, PRMC did not learn that Ms.
Adkins failed to complete the program until after her termination.
       18
          In its briefing, PRMC consistently notes that its termination of Ms. Adkins’s
employment was consistent with the FMLA. Although PRMC does appear to have acted
consistently with FMLA requirements, we note that this does not obviate PRMC’s
obligations to comply with the MFEPA or the ADA. Indeed, regarding reinstatement, the
FMLA regulations provide:

       If the employee is unable to perform an essential function of the position
       because of a physical or mental condition, including the continuation of a
       serious health condition or an injury or illness also covered by workers’
       compensation, the employee has no right to restoration to another position
       under the FMLA. The employer’s obligations may, however, be governed
       by the Americans with Disabilities Act (ADA), as amended. See §
(continued . . . )

                                             47
       Based on our analysis of Ms. Adkins’s failure-to-accommodate claim, we

concluded that a genuine dispute of material fact existed regarding whether she was a

qualified individual with a disability. The same conclusion applies here. Thus, we hold

that there is a genuine dispute of material fact regarding whether PRMC’s failure to hire

Ms. Adkins for the inventory control coordinator position constituted disability

discrimination.

                                            II.

                                    Motion to Compel

       Ms. Adkins next contends that the circuit court erred in denying her motion to

compel.19 Ms. Adkins filed a motion to compel on December 26, 2013, requesting that

the court compel production of certain documents not produced in discovery, namely, the

personnel files of Quinnie McBride, Kim Horsey, Patrick Ritchie, Justine Custis, Ethyl

Harper, and Brenda Phippin, all of whom worked as or were hired as core technicians in

the months following Ms. Adkins’s surgery. She sought these documents in order to

support her position that she was as qualified for the core technician position, as were the

hired employees, and to determine whether any accommodations were afforded to these

individuals. PRMC responded on July 8, 2014, arguing that Mr. McBride and Ms.

       825.702, state leave laws, or workers’ compensation laws.

29 C.F.R. § 825.216(c).
       19
          At the hearing held on April 30, 2013, the circuit court ruled on the record that
the motion to compel was denied outright, and the docket entry reflected the same. Thus,
we reject Ms. Adkins’s characterization of the court’s ruling on motion to compel as a
denial based on being “moot.”


                                            48
Phillips possessed core technician positions in Central Processing, a different position

from the OR core technician position at issue; that Ms. Adkins failed to engage in

discovery in good faith and that PRMC offered to produce various documents; and that

her requests were overly broad. On January 21, 2014, Ms. Adkins amended the motion

to compel to add a request for “[a]ll documents relating to all non-professional jobs or

positions that became vacant and non-professional jobs or positions for which

applications were sought between September 1, 2011 and May 1, 2012.” She sought

these documents to determine whether there were other vacant positions, beyond those to

which she applied, that she could have been qualified for and thus those to which PRMC

failed to transfer her. PRMC did not respond.

       Maryland Rule 2-402(a) provides that a party may obtain discovery “if the matter

sought is relevant to the subject matter involved in the action, whether it relates to the

claim or defense of the party seeking discovery or to the claim or defense of any other

party.” Maryland Rule 2-431 requires a proponent of a motion seeking to resolve a

discovery dispute to have acted in good faith to resolve the dispute:

       A dispute pertaining to discovery need not be considered by the court
       unless the attorney seeking action by the court has filed a certificate
       describing the good faith attempts to discuss with the opposing attorney the
       resolution of the dispute and certifying that they are unable to reach
       agreement on the disputed issues. The certificate shall include the date,
       time, and circumstances of each discussion or attempted discussion.

(Emphasis added); see also Rodriguez v. Clarke, 400 Md. 39, 65 (2007) (stating that

parties must engage in a “sincere” attempt to resolve a discovery dispute). “Trial courts

are vested with a reasonable, sound discretion in applying [the discovery rules], which



                                            49
discretion will not be disturbed in the absence of a showing of its abuse.” Falik v.

Hornage, 413 Md. 163, 182 (2010) (internal quotation marks and citation omitted).

       As to the personnel files, we cannot find that the circuit court abused its discretion

in declining to compel production of these documents.          First, although Ms. Adkins

included a certificate of good faith along with her first motion to compel, it is unclear

whether her counsel ever responded to PRMC’s communications. PRMC argued to the

circuit court that an e-mail from PRMC’s counsel to Ms. Adkins’s counsel (contained in

the record) reflects that PRMC agreed to provide Ms. Adkins with portions of the

personnel files relating to accommodations, if any, afforded to other core technicians, and

that no response was made by Ms. Adkins’s counsel. More importantly, Ms. Adkins has

not demonstrated that the personnel records requested were relevant to the issues to be

decided at trial. As we concluded supra, there was no genuine dispute of material fact

regarding whether Ms. Adkins was a qualified individual with a disability for the core

technician position, because she was physically unable to perform the essential function

of lifting, and because PRMC is not required to reallocate this task to another employee

or waive this essential function. Moreover, we also concluded that even if PRMC waived

the lifting function or sanctioned help from other employees for Ms. Custis, PRMC is not

required to provide that same accommodation to Ms. Adkins. Therefore, at this juncture,

we cannot say the court erred in denying the motion to compel production of these files.

       As to the production of all documents concerning vacancies during the 9-month

period at issue, we conclude that the circuit court abused its discretion in denying the




                                             50
motion to compel.20 On its merits, this discovery request was relevant to the failure to

accommodate claim, in that the information about vacancies could have revealed a

position for which Ms. Adkins was qualified and to which she could have been assigned

as a reasonable accommodation. Indeed, as explained supra, Ms. Adkins, as the plaintiff,

bears the burden of identifying a vacant position for which she was qualified and to

which PRMC could have reassigned her, and the court’s failure to permit access to this

information could have precluded Ms. Adkins from satisfying her prima facie case, if in

fact such a vacancy existed. In other words, the information requested fell within the

ambit of discoverable, admissible evidence. Thus, on remand, the circuit court must

order PRMC to produce a list of all vacancies available during the time period requested.

                                         AFFIRMED IN PART AND REVERSED IN
                                         PART.    DENIAL OF MOTION TO
                                         COMPEL     AFFIRMED     AS     TO
                                         PERSONNEL FILES, REVERSED AS TO
                                         PRODUCTION OF VACANCIES; GRANT
                                         OF    APPELLEE’S   MOTION     FOR
                                         SUMMARY JUDGMENT REVERSED.
                                         CASE REMANDED FOR PROCEEDINGS
                                         CONSISTENT WITH THIS OPINION.

                                         COSTS ASSESSED TO APPELLEE.




      20
          At the hearing, PRMC's counsel argued that the motion was not accompanied by
a certificate demonstrating a good faith attempt to resolve this dispute; however, the
motion was “an amendment to” the prior motion to compel, not a new motion in its own
right. As an amendment, the certificate of good faith compliance was sufficient for the
production of the vacancies as well, and nothing in the record, aside from PRMC’s
proffer, reflects a failure to engage in discovery in good faith.


                                           51
