                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-1539


PAULA CRABILL,

                 Plaintiff - Appellant,

           v.

CHARLOTTE MECKLENBURG BOARD OF EDUCATION,

                 Defendant - Appellee.



                             No. 10-1553


PAULA CRABILL,

                 Plaintiff - Appellee,

           v.

CHARLOTTE MECKLENBURG BOARD OF EDUCATION,

                 Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cv-00598-MR-DSC)


Argued:   March 23, 2011                    Decided:   April 20, 2011


Before NIEMEYER and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 10-1539 affirmed in part, vacated in part, and remanded; No.
10-1553 affirmed by unpublished opinion. Judge Davis wrote the
majority opinion, in which Senior Judge Hamilton joined. Judge
Niemeyer wrote a dissenting opinion.


ARGUED: S. Luke Largess, TIN, FULTON, WALKER & OWEN, PLLC,
Charlotte, North Carolina, for Appellant/Cross-Appellee.   Mason
Gardner Alexander, Jr., FISHER & PHILLIPS, LLP, Charlotte, North
Carolina, for Appellee/Cross-Appellant.   ON BRIEF: Margaret M.
Kingston, FISHER & PHILLIPS, LLP, Charlotte, North Carolina, for
Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

     Appellant/Cross-Appellee               Paula    Crabill,    a      former      high

school guidance counselor for Appellee/Cross-Appellant Charlotte

Mecklenburg      Board     of    Education      (“School     Board”),      filed    this

action   asserting       that     the   School      Board   failed    to    offer    her

reasonable accommodations for her disability, resulting in her

premature retirement from employment, and thereby violated the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et

seq. After the parties filed cross-motions for summary judgment,

the district court applied the doctrine of equitable tolling to

deem Crabill’s lawsuit timely-filed even though Crabill filed

suit beyond the 90-day period provided by the ADA. The district

court concluded on the merits, however, that Crabill could not

persuade a reasonable jury to find in her favor on all the

elements    of     her   ADA      claims     and    therefore    granted      summary

judgment to the School Board. We hold, for the reasons set forth

within, that the district court properly applied the doctrine of

equitable tolling but erred in granting summary judgment to the

School     Board     for        Crabill’s       post-April     2007     ADA      claim.

Accordingly, we affirm in part and vacate in part the district

court’s judgment, and remand the case for further proceedings.




                                            3
                                          I.

      We review the grant of summary judgment de novo. Waller v.

City of Danville, 556 F.3d 171, 174 (4th Cir. 2009). Summary

judgment is appropriate only if, taking the evidence and all

reasonable     inferences         drawn      therefrom           in     the       light     most

favorable     to    the    nonmoving      party,           “no    material          facts    are

disputed    and    the    moving    party       is    entitled        to    judgment        as   a

matter of law.” Ausherman v. Bank of Am. Corp., 352 F.3d 896,

899 (4th Cir. 2003); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986).

                                          A.

      In   September      1998     Crabill      commenced         work      as      a   guidance

counselor at Myers Park High School. Her job duties included,

but were not limited to, assisting students with their course

selections     and       typing     recommendation               letters         for     college

applicants.        Generally,       the      school         divided           the       students

alphabetically       in    order    to    distribute             students        to     specific

counselors    but     certain      students,         such        as   the     International

Baccalaureate (“IB”) students, or students for whom English was

a second language, were assigned to a counselor without regard

to   the   alphabet.      Myers    Park   had        one    of    the      largest       student

populations in the Charlotte-Mecklenburg area. Consequently, the

school had the highest average number of students assigned to

any one counselor.

                                            4
     In July 2002, Dr. William Anderson became the principal at

Myers     Park.       When   Anderson     started,         there    were    only      three

counselors at the high school, including Crabill, for a student

population of more than 2500. During Anderson’s first year as

principal, Crabill served as the interim department chair of the

school’s guidance department.

     Due to the additional duties assigned to her as department

chair and then-undiagnosed medical problems, Crabill requested

of Anderson that he reduce her caseload. Anderson declined to

institute       any    changes     in   the   manner       in   which     students     were

assigned        to    counselors.       Anderson       did,        however,     hire     an

additional three counselors, bringing the total number to six.

In April 2003 Crabill asked to be relieved of department chair

duties the following school year.

        In May 2003 Crabill was diagnosed with Chari Malformation

(“Chari I”). Chari I is a malformation of the brain stem that

impedes the flow of cerebral-spinal fluid. Crabill’s symptoms

included weakness, tingling and numbness in her arms and legs,

sensations       of    electric     shock     and    burning,       dizziness,     memory

problems, and vertigo. In particular, when Crabill typed, her

arms would become weak and her vertigo increased.

        After    Crabill     was   diagnosed        with   Chari     I,   she   met    with

Anderson to again request an adjustment in her caseload for the

following school year. Crabill also requested that she not be

                                              5
required to carry heavy items and be excused from activities

that would require her to drive at night. Anderson agreed to

provide Crabill with accommodations to address her difficulties

with   driving    and    carrying     heavy   items   but   did    not   agree   to

reduce Crabill’s case load. The day after meeting with Crabill,

and with Crabill’s support, Anderson named two other counselors

as   the   guidance      department    co-chairs.     Anderson     reduced   their

caseloads because of their new responsibilities.

       In July 2003, Crabill wrote Anderson an e-mail explaining

that she needed a reduced caseload “because the work demands

exasperated      [sic]    [her]   condition.”       J.A.    222.   Crabill   told

Anderson that it was “medically necessary” for her caseload to

be reduced. Id. Anderson responded the next day that he would

not make any decisions until he had the chance to discuss the

request with the new department co-chairs. The following day,

Anderson “yelled” at Crabill for asking about her caseload. J.A.

604. He wrote a follow-up e-mail:

       I was very frustrated with you today and continue to
       be frustrated by your continued obsession/perseverance
       over [the department co-chair’s] caseload and the
       fairness of her numbers. It seems that is [sic] it is
       very difficult for you to move past last year and
       accept the fact that [the co-chairs] and I made the
       decisions regarding the caseload for the guidance
       department.

       Paula, you must be a team player and accept the fact
       that [the co-chairs] will be the department chairs
       this year. I cannot have you second guessing their


                                         6
     decisions,   the  intent   of   their  decisions,    and
     revisiting issues that are in the past tense . . . .

     I hope that in the future you will spend your precious
     time and energy serving our students, parents and
     staff members more efficiently and effectively.

J.A. 224.

     The     following      month,      Crabill       obtained       a     note   from   her

treating neurologist stating that her caseload needed to be kept

between 250 and 300 students. This range reflected the school

district’s average workload for high school counselors. However,

at   Myers      Park,     the    average      caseload     was       422    students     per

counselor.       Anderson        declined      to    reduce   Crabill’s           caseload,

citing    the    increase        to   other    counselors’       caseloads        it   would

cause. As a result, Crabill had approximately 310 students for

the 2003-2004 school year.

     In July 2004, the department chair told Crabill that she

would have 460 students for the 2004-2005 school year. Crabill

wrote to Anderson and the assistant principal that she did not

believe    she    could     manage      460       students,   especially          with   her

problems     with       typing    due    to    her    Chari      I    diagnosis.       As   a

substitute,      Crabill        proposed      that   she   take      the     IB   students,

which would reduce the number of letters she would need to type.

Anderson responded that he found “frustrating” all the “conflict

and angst” she was causing and how “[s]mall tasks and requests

become mountains.” J.A. 131. Anderson also stated that Crabill


                                              7
needed to work in the “best interest of our students and school

instead of comparisons as to who works the hardest or has the

heaviest    load.”       J.A.    131.       After       receiving      Anderson’s       e-mail,

Crabill helped make the caseload divisions among the counselors.

       In spring 2005, Crabill applied for counseling openings at

two middle schools and asked the School Board’s human resources

department to assist her. Crabill told Anderson that she was

seeking    a     transfer       and    asked          Anderson    not     to    disclose      her

medical diagnosis. Crabill did not receive either position.

       During     the     summer       of     2005,      Lyn     Shropshire       became      the

counseling department chair at Myers Park. Crabill spoke with

Shropshire       about    Anderson          and   her     medical       problems.      For    the

2005-2006       school      year,       Crabill          was      responsible       for       the

additional       duties    of     “Future         Center”       and    “Summer     Ventures.”

These    additional       responsibilities               were    considered       less    time-

consuming than those of other counselors. Consequently, Crabill

was    assigned    even     more      students,          the    highest    of    all     of   the

counselors.       After     Crabill          questioned         her    caseload,       she    was

called    into    a     meeting       with    Anderson,          the   vice-principal         and

Shropshire and admonished for questioning the work distribution.

       In November 2005, Crabill again sent Anderson a medical

note     from    her     doctor       requesting          between       250-300     students.

Anderson responded by asking Crabill if she wanted him to begin

searching for a transfer to a middle school for her. Crabill

                                                  8
told Anderson that she did not want to transfer. Anderson also

sent   Crabill     the   so-called       “matrix”    that    was    used     to   assign

students and other tasks to counselors. In addition, Shropshire

sent Crabill an e-mail on November 16, 2005 admonishing Crabill

for questioning her caseload.

       Shortly thereafter, Principal Anderson was promoted to a

position      outside    of    Myers   Park.     Before     he   left     the     school,

Anderson    e-mailed     his     replacement,       Tom   Spivey,     about       Crabill

because he wanted to give Spivey a “heads up on this counselor

problem.” J.A. 255. Anderson warned Spivey that “[Crabill] will

probably    come    to   you    asking    for    consideration       to    reduce    her

caseload (329) because of her so called ‘medical’ problems,” and

“strongly recommend[ed]” that Spivey “not reduce her caseload.”

J.A.   255.    Anderson       also   forwarded    Crabill’s        earlier      question

about her doctor’s note and stated,

       I just wanted you [to] have a greater understanding of
       how Paula Crabill operates. She has very selective
       memory and will try to make you believe that she
       doesn’t   really   care   about  caseloads,   but   her
       recollection of certain issues is very Disneyland
       like, Lin [sic] is a good dept. chair and she, like
       me, is fed up with paula’s [sic] whining and end runs.

J.A. 250.

       Several hours later, Anderson wrote to Crabill, with a copy

to Spivey:

       You seem obsessed with someone else having a bigger
       caseload than you. If you feel the high caseload is
       too extreme for you, I would suggest that you

                                           9
     seriously consider a transfer to a middle school or
     elementary school for 2006-07. There is too much
     energy and precious work time being wasted by you and
     other counselors addressing this issue.

J.A. 253.

     Crabill approached Spivey in March 2006. She explained to

Spivey    her     condition    and     her   prior    requests     for    a   reduced

caseload.    Crabill       requested    he    consider      her   request     for    the

following    school    year.    Two     weeks   later,      Crabill      received     an

envelope    through    the    school     system’s      courier     system     with    no

return address or cover letter, containing a brochure about a

seminar on managing emotional problems. Crabill was upset by the

brochure    and    believed    Anderson       had    sent   it.   Anderson     denied

having anything to do with the brochure.

     On July 26, 2006, Crabill wrote Spivey requesting three

specific accommodations: (1) a flexible work schedule; (2) a cap

on her caseload as close to 300 students as possible; and (3)

voice recognition software for typing. Crabill was aware that

Spivey would be on vacation the week he received the letter.

Shortly thereafter, Crabill was assigned 20 more students than

the department average.

     On    August     9,    2006,    Crabill    sent     Spivey    an    e-mail      and

delivered another copy of the letter. In mid-September 2006,

Shropshire requested a meeting with Crabill, the vice principal,

Spivey and another counselor to discuss “departmental concerns.”


                                         10
J.A. 283. In addition, Spivey attended a guidance department

meeting on September 20, 2006 and took notes that showed some

members       of   the     department          were         upset     at      the        way    the

administration was treating Crabill.

     On October 9, 2006, Spivey wrote to human resources that he

had a counselor with documented health-related issues, including

a   doctor’s       note    that        she   would       benefit          from     a     workload

reduction. He asked that human resources review the matter and

provide       feedback.     Spivey      also      told      human     resources          that    he

thought Crabill should be transferred to a middle or elementary

school.

     Shortly       thereafter,         Crabill     slipped          and    fell     at       school,

causing her to miss work for several weeks. After learning of

rumors    that     Crabill       was    going     to     be    transferred,            Crabill’s

counsel wrote a letter to human resources, warning the School

Board that a forced job relocation due to a workplace injury

violated North Carolina’s workers’ compensation laws.

     The parties dispute the extent to which Crabill and Spivey

spoke    to    discuss     the      possibility        of    her     moving       to     a   middle

school    position        as   an    accommodation            to    address       her        medical

concerns. The School Board contends that Spivey and Crabill had

several informal conversations about Crabill moving to a middle

school position. Appellee Br. at 13. Crabill asserts, to the

contrary, that she never had a conversation with Spivey about

                                             11
moving to a middle school as an accommodation. Appellant Br. at

21.

      In    November         2006,     two    human      resources          employees,         Kathy

Augar and Regina George, began inquiring into accommodations for

Crabill. George asked Spivey if the alphabetic distribution of

caseloads could be rotated so that no one counselor had the

largest     caseload         every    year.      Spivey     responded           that      it   could

work, but that the school preferred keeping counselors with the

same students for multiple years.

      On    April      12,    2007,       Regina       George    met       with      Crabill     and

Crabill     told      George        she    was        willing    to        transfer,       and    in

particular       to    a     middle       school,        where     the         typing     task    of

counselors was considerably lighter. George learned of several

vacancies for the following school year including two middle

schools, five or six high schools, and a new high school that

did   not   yet       have    a    senior      class.     Nevertheless,              George      told

Crabill only about the opening at the new high school. Crabill

went to interview for the position but learned upon arriving

that the position had already been filled.

      In    a   follow        up     meeting     with     Crabill,          George        requested

additional        medical          documentation,          which       Crabill            obtained.

Crabill did not meet with George again until June 11, 2007. The

two   discussed        several        accommodations:            (1)       a     flexible        work

schedule;       (2)    regular        work     breaks;       (3)       a       cap   on     student

                                                 12
caseload; (4) a strict limit on additional duties assigned; and

(5) voice recognition software. The School Board did not respond

to   any   of     Crabill’s      proposals         for    a     redistribution          of    the

caseload.

        For the 2007-08 school year, Crabill received 379 students

in   her    caseload,      the       average       number       of   students      as     other

counselors.       Feeling       overwhelmed         by    her     job     duties,    Crabill

retired on disability in January 2008.

                                              B.

        Crabill filed her charge of discrimination with the Equal

Employment Opportunity Commission (EEOC) on February 20, 2007.

On February 26, 2007, the EEOC mailed the charge to the School

Board.     More   than     a    year     later,      on    April     3,    2008,     an      EEOC

investigator met with Crabill’s counsel.

        On April 22, 2008, the EEOC mailed Crabill a right-to-sue

notice.     As    discussed          below,   the     district        court    found         that

neither Crabill nor her counsel ever received the notice. On

August 19, 2008, Crabill’s counsel wrote a letter to the EEOC

referring to the prior meeting and asking to meet with the EEOC

legal    staff     about       the    case.    The       EEOC    responded      by      calling

Crabill’s counsel to inform him that the EEOC had dismissed the

charge and issued the right-to-sue letter on April 22, 2008.

This conversation was the first time Crabill’s counsel learned

the letter had been mailed in April. After requesting the EEOC

                                              13
resend a copy of the letter, Crabill received the EEOC dismissal

and   notice     of    her     right-to-sue           in   September     2008.      The    EEOC

authenticated         its    file     of    Crabill’s        charge   and    it     does    not

contain    records          indicating      the       right-to-sue      letter      sent    to

Crabill was returned, unable to be delivered or otherwise not

received by Crabill. This action was filed on November 12, 2008.



                                             II.

                                                 A.

      We   first       address        the    School        Board’s     appeal      from    the

district court’s application of equitable tolling. The School

Board contends that Crabill’s suit was untimely and that the

district court erred in applying equitable tolling to excuse

Crabill’s delay in filing suit. In the non-habeas context, we

review     the    district       court’s          decision     to     utilize      equitable

tolling for an abuse of discretion. Rouse v. Lee, 339 F.3d 238,

247 n.6 (4th Cir. 2003) (en banc); see also Chao v. Va. Dept. of

Transp., 291 F.3d 276, 279-80 (4th Cir. 2002) (“We review the

district     court’s         ruling    on    equitable         tolling      for    abuse    of

discretion.”). While the School Board urges us to review the

district     court’s         decision       de    novo,      utilizing      an     abuse    of

discretion       standard      of     review      is    in   accord    with       our   sister

circuits. See Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d

1, 23 (1st Cir. 2007) (reviewing for abuse of discretion the

                                                 14
district court’s decision whether to apply equitable tolling);

Alli-Balogun   v.   U.S.,   281   F.3d   362,   367-68       (2d   Cir.   2002)

(same); Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002)

(same); Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003)

(same); Harms v. I.R.S., 321 F.3d 1001, 1006 (10th Cir. 2003)

(same). But see Seay v. Tenn. Valley Auth., 339 F.3d 454, 469

(6th Cir. 2003) (“We review a district court’s decision to grant

or deny equitable tolling de novo when the facts are undisputed

or the district court rules, as a matter of law, that equitable

tolling is not available; in all other circumstances we review

for an abuse of discretion.”).

                                   B.

      After a complainant files a charge with the EEOC, the ADA

requires the EEOC to “notify the person aggrieved and within

ninety days after the giving of such notice a civil action may

be brought against the respondent.” 42 U.S.C. § 2000e-5(f)(1).

The   90-day   filing   requirement      is     “not     a    jurisdictional

prerequisite to suit in federal court, but a requirement that,

like a statute of limitations, is subject to waiver, estoppel,

and equitable tolling.” Laber v. Harvey, 438 F.3d 404, 429 n.25

(4th Cir. 2006) (quoting Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 393 (1982)). Here, the right-to-sue notice was

mailed to Crabill on April 22, 2008, and the law presumes its

receipt on April 25, 2008. Baldwin County Welcome Ctr. v. Brown,

                                   15
466 U.S. 147, 148 n.1 (1984) (for constructive receipt purposes,

courts presume a mailing reaches the intended recipient within

three days). Thus, the 90-day period ended on July 24, 2008, and

Crabill’s       complaint      was     therefore          untimely     filed.     Having

determined       that    Crabill’s     filing       was    untimely,    the     district

court concluded that equitable tolling of the filing period was

appropriate.

       Equitable        tolling      applies       in     two   general       kinds   of

situations. In the first, the complainant has been induced or

tricked by his adversary’s misconduct into allowing the filing

deadline to pass. Irwin v. Dep’t of Veterans Affairs, 498 U.S.

89, 96 (1990); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.

2000). In the second, “extraordinary circumstances beyond the

plaintiffs’ control made it impossible to file the claims on

time.”    Harris,       209   F.3d    at   330      (quoting    Alvarez-Machain       v.

United States, 107 F.3d 696, 700 (9th Cir. 1996)).

       Equitable tolling is a discretionary doctrine that “turns

on the facts and circumstances of a particular case.” Harris,

209 F.3d at 330 (quoting Fisher v. Johnson, 174 F.3d 710, 713

(5th     Cir.    1999)).      Federal      courts        have   typically       extended

equitable relief only sparingly. Irwin, 498 U.S. at 96; see also

Harris, 209 F.3d at 330. Consequently, “any resort to equity

must     be     reserved      for    those        rare    instances     where—due     to

circumstances external to the party’s own conduct—it would be

                                             16
unconscionable        to    enforce         the    limitation         period    against        the

party and gross injustice would result.” Harris, 209 F.3d at

330.

       Here, the district court concluded that reasonable grounds

existed      such   that    equitable         tolling         of   the   filing       period    is

appropriate. Crabill v. Charlotte-Mecklenburg Bd. of Educ., 708

F.   Supp.    2d    542,    554-55      (W.D.N.C.            2010).    In   particular,        the

court relied on Crabill’s sworn statement that she was home the

entire week of April 21, 2008, and checked the mail every day of

that week; that she routinely checks her mailbox everyday; and

that she always asked the post office to hold her mail when she

went   out    of    town.    Id.       On    this      showing,       the   district         court

concluded      that    Crabill’s        testimony            established       that    she     was

“extremely diligent in checking her mail for any correspondence

from the EEOC.” Id. at 554. In addition, the court concluded

that    Crabill       was   diligent         in     maintaining          contact      with     her

counsel      regarding      the    status         of   her     case.     Consequently,         the

district      court     concluded       that        Crabill        “presented      sufficient

evidence of circumstances ‘beyond [her] control or external to

[her] own conduct . . . that prevented [her] from filing on

time.” Id. at 555 (quoting United States v. Sosa, 364 F.3d 507,

512 (4th Cir. 2004)).

       On    this   record,       we    cannot         say    that    the   district         court

abused its discretion in holding Crabill successfully rebutted

                                              17
the presumption of actual receipt of the right-to-sue notice.

The court found that Crabill was diligent in watching her mail

and staying in contact with her counsel regarding her case; we

have no warrant in deeming these findings clearly erroneous. We

are persuaded that Crabill’s failure to receive the letter was

the   result     of   circumstances      external   to    her    own   conduct.      In

affirming the application of equitable tolling, we agree with

the Seventh Circuit that a “plaintiff should not lose the right

to    sue   because     of    fortuitous    circumstances       or   events    beyond

[her] control which delay receipt of the EEOC’s notice.” DeTata

v. Rollprint Packaging Products, 632 F.3d 962, 969 (7th Cir.

2011) (quotation omitted). 1



                                         III.

       Having concluded the district court did not err in applying

equitable tolling to excuse Crabill’s untimely filing of this

action,     we      examine    the    propriety   of     the    district      court’s

rejection      of     Crabill’s      reasonable   accommodation        claim    as    a

matter of law.



       1
       In so concluding, we echo the sentiment of our sister
circuit and “note that if the EEOC had followed its former
practice of sending right-to-sue letters by certified mail, this
dispute would, in all likelihood, have never arisen.” Duron v.
Albertson’s LLC, 560 F.3d 288, 291 (5th Cir. 2009).



                                           18
      The    ADA     prohibits          discrimination         against         a     “qualified

individual with a disability” with respect 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.A.       §

12112(a).

      One    form    of        discrimination        prohibited      by     the      ADA     is    a

failure to make a reasonable accommodation. See 42 U.S.C.A. §

12112(b)(5).        In     a     failure-to-accommodate             case,       an     employee

establishes a prima facie case by showing “(1) that he was an

individual     who       had     a   disability       within    the       meaning       of    the

statute; (2) that the [employer] had notice of his disability;

(3)   that   with        reasonable      accommodation         he    could         perform    the

essential functions of the position . . . ; and (4) that the

[employer]     refused          to   make     such    accommodations.”               Rhoads       v.

F.D.I.C.,     257    F.3d        373,   387    n.11    (4th    Cir.       2001).       The    ADA

provides a definition of the term “reason accommodation”:

      The term “reasonable accommodation” may include-

      (A) making existing facilities used by employees
      readily accessible to and usable by individuals with
      disabilities; and

      (B) job restructuring, part-time or modified work
      schedules,   reassignment  to   a  vacant   position,
      acquisition or modification of equipment or devices,
      appropriate    adjustment    or   modifications    of
      examinations, training materials or policies, the
      provision of qualified readers or interpreters, and


                                              19
       other similar             accommodations          for   individuals     with
       disabilities.

42 U.S.C.A. § 12111(9).

       Once an employer’s responsibility to provide a reasonable

accommodation is triggered, it may be necessary for the employer

to    engage     in       an     “interactive           process”    to    determine     the

appropriate accommodation under the circumstances. 29 C.F.R. §

1630.2(o)(3). See also Taylor v. Phoenixville School Dist., 184

F.3d 296, 311-12 (3d Cir. 1999) (finding that “both parties have

a    duty   to   assist         in    the   search       for   appropriate     reasonable

accommodation and to act in good faith”); Haneke v. Mid-Atlantic

Capital     Mgmt.,         131       Fed.   Appx.       399,   *1     (4th   Cir.     2005)

(unpublished) (finding that “[i]mplicit in the fourth element is

the ADA requirement that the employer and employee engage in an

interactive      process         to   identify      a    reasonable      accommodation”);

Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.

1996) (explaining that “the employee’s initial request for an

accommodation         .    .     .    triggers     the     employer’s      obligation    to

participate      in       the    interactive       process     of   determining     one”);

Jakubowski v. Christ Hosp., 627 F.3d 195, 202 (6th Cir. 2010).

       As the Seventh Circuit has noted:

       No hard and fast rule will suffice, because neither
       party should be able to cause a breakdown in the
       process for the purpose of either avoiding or
       inflicting liability. Rather, courts should look for
       signs of failure to participate in good faith or
       failure by one of the parties to make reasonable

                                              20
       efforts to help the other party determine what
       specific accommodations are necessary. A party that
       obstructs or delays the interactive process is not
       acting   in  good   faith.  A  party  that   fails  to
       communicate, by way of initiation or response, may
       also be acting in bad faith. In essence, courts should
       attempt to isolate the cause of the breakdown and then
       assign responsibility.

Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135-36

(7th Cir. 1996).

       To    be    sure,    and     contrary     to    Crabill’s       contentions,       an

employee cannot base a reasonable accommodation claim solely on

the     allegation        that    the    employer       failed    to    engage     in     an

interactive process. See Rehling v. City of Chicago, 207 F.3d

1009,       1016    (7th     Cir.       2000).    Rather,        the    employee        must

demonstrate        that     the    employer’s         failure    to    engage    in     the

interactive        process       resulted   in    the    failure       to   identify     an

appropriate accommodation for the disabled employee. See id. In

addition, “[a]n employer is not obligated to provide an employee

the accommodation he or she requests or prefers; the employer

need only provide some reasonable accommodation.” Crawford v.

Union Carbide Corp., 202 F.3d 257 (4th Cir. 1999) (unpublished)

(quoting Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th

Cir. 1998)).

       Here, the district court correctly concluded that the ADA

does    not       require    an    employer      to     reallocate      essential       job

functions or assign an employee “permanent light duty”. Crabill,


                                            21
708 F. Supp. 2d at 556 (quoting Carter v. Tisch, 822 F.2d 465,

467 (4th Cir. 1987)). In particular, reducing Crabill’s caseload

would    have     shifted    her     duties   to     other   counselors       in    the

department, thereby increasing their workload. As the district

court    noted,      “an    accommodation       that     would     require         other

employees to work harder is unreasonable.” Crabill, 708 F. Supp.

2d at 556 (quoting Mason v. Avaya Communications, Inc., 357 F.3d

1114, 1121 n.3 (10th Cir. 2004)). See also Rehrs v. Iams Co.,

486 F.3d 353, 357 (8th Cir. 2007); 29 C.F.R. § 1630.2(p)(2)(v)

(impact to other employees on their ability to perform their

duties is a relevant factor in determining the reasonableness of

an accommodation).

       More    persuasively,       Crabill    also    argues     that   the    School

Board could have accommodated her disability by transferring her

to another school, especially a middle school, where she could

have    had   a   reduced    caseload    with      different    responsibilities.

Acknowledging the validity of this assertion, the district court

concluded, in rejecting the claim, that no reasonable jury could

conclude      that   the    School    Board   failed    to     offer    Crabill     the

accommodation of a transfer to a different school. Crabill, 708

F. Supp. 2d at 557. The court reasoned that Crabill’s refusal of




                                         22
a medical transfer in 2005 supported its conclusion. 2                While the

district court was surely correct in its legal assessment as to

the   period   before    the   spring   of   2007,   we   disagree     with   its

conclusion that Crabill failed to generate a genuine dispute of

material    fact    as    to     the    availability      of   a      reasonable

accommodation by transfer for the period starting with the 2007-

2008 school year.

      On   April   12,   2007,   Crabill     told   Regina   George    that   she

would accept a transfer as a reasonable accommodation, including

transferring to a middle school. After meeting with Crabill,

George sought assistance in reassigning Crabill “to a middle

school in an effort to meet her medical accommodation request.”

J.A. 309-10. George learned of vacancies at two middle schools

and five or six high schools, including a new school that did

not yet have a senior class. Despite learning of vacancies at

two middle schools, George only told Crabill about one of the


      2
        In addition, the court reasoned that when Crabill’s
counsel wrote to the School Board in November 2006 warning she
would seek an injunction if a transfer was attempted, Crabill
was   expressly   rejecting   a    transfer   as   a   reasonable
accommodation. The School Board’s contention that the November
2006 letter “blocked” any effort to accommodate Crabill with a
transfer to another school is certainly a plausible view of the
record, but it does not foreclose Crabill’s claim as a matter of
law. Crabill contends, equally plausibly, that the letter was
written in regards to Crabill’s rights under the state workers’
compensation law, not the ADA. We agree with Crabill that this
dispute is genuine and material and is proper grist for a jury.



                                        23
high school vacancies. For these reasons, we are persuaded that

a reasonable jury could conclude that the School Board failed to

offer Crabill the accommodation of a transfer to a different

school after her April 12, 2007 request.

      Finally, Crabill asserted a separate count in her complaint

to   contend      that   the    School       Board       intentionally       discriminated

against     her    in    violation      of    the       ADA,     namely,    that       she   was

constructively discharged from her position by virtue of her

forced     disability        retirement       in    the    absence     of    a     reasonable

accommodation.          We    have     held       that    a      “complete        failure     to

accommodate, in the face of repeated requests, might suffice as

evidence to show the deliberateness necessary for constructive

discharge.”       Johnson      v.    Shalala,      991     F.2d    126,     132    (4th      Cir.

1993).

      We    are    persuaded         that    Crabill       has    generated        a   genuine

dispute of material fact as to whether her alleged premature

retirement is causally related to the School Board’s failure to

provide a reasonable accommodation – a transfer. Contrary to the

district     court’s         legal    conclusion,         a    reasonable         jury    could

conclude that the School Board’s culpable failure to accommodate

Crabill’s      transfer       amounted       to    an     adverse    employment          action

proximately prompting her early retirement. As with all elements

of her claim, Crabill bears the risk of non-persuasion as to



                                              24
proof     of    any    damages    flowing         from     her   allegedly       premature

retirement from employment.



                                           IV.

         In conclusion, we hold that: (1) the district court did not

abuse     its   discretion       in   applying       equitable       tolling     to   allow

Crabill’s       belated     filing    of    her    ADA     claim;    (2)   the    district

court erred in granting the School Board’s motion for summary

judgment in regard to Crabill’s post-April 12, 2007 reasonable

accommodation claim; and (3) the district court erred insofar as

it   precluded        Crabill    from      seeking    to    show    that   her     alleged

premature retirement was a proximate consequence of the School

Board’s failure to offer a reasonable accommodation in the form

of   a    transfer     to   another     school       for    school    year     2007-2008.

Accordingly, we affirm in part and vacate in part the district

court’s judgment and we remand the case for further proceedings

consistent with this opinion.

                                                    No. 10-1539 AFFIRMED IN PART,
                                                    VACATED IN PART, AND REMANDED
                                                             No. 10-1553 AFFIRMED




                                             25
NIEMEYER, Circuit Judge, dissenting:

     The record in this case shows that Crabill’s action was

untimely filed.     The EEOC issued a right-to-sue letter on April

22, 2008, and mailed it to Crabill at her given address.                         The

evidence also shows that the EEOC did not receive any return of

the mail or any indication that the U.S. Postal Service was

unable to deliver it.       Crabill did not file suit until November

12, 2008, more than 90 days after the EEOC sent its right-to-sue

letter.   To justify her untimely filing of suit, Crabill states

that she did not receive the right-to-sue letter, although she

checked her mail regularly.           In this circumstance, I would find

it an abuse of discretion to conclude that the simple denial of

receipt of a letter tolls the statute of limitations.                           This

conclusion, I am afraid, too readily undermines the requirements

established by Congress in 42 U.S.C. § 2000e-5(f)(1), where it

fixed the limitations period at 90 days.

     On the merits, I would find summary judgment appropriate

because Crabill did not establish a prima facie case that the

School    Board    failed      to     provide     her    with     a       reasonable

accommodation     for    her        disability.         The     Americans       with

Disabilities      Act    requires       employers       to    make        reasonable

accommodations     for   employees      with    disabilities,        42    U.S.C.   §

12112(b)(5)(A), and reassignment to a vacant position may be a

reasonable accommodation, 29 C.F.R. § 1630.2(o)(2)(ii).                      Because

                                        26
the employee has the burden of proving that an accommodation is

reasonable, U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02

(2002),   I   would   hold,   in    line   with     the    Second   and    Third

Circuits, that an employee has the burden of showing that a

vacancy existed at the time a transfer was needed.                  See Jackan

v. New York State Dept. of Labor, 205 F.3d 562, 567 (2d Cir.

2000); Shapiro v. Township of Lakewood, 292 F.3d 356 (3d Cir.

2002).    Here, the only evidence Crabill presented tended to show

that vacancies may have existed at a previous time, but did not

show that those vacancies existed at the time she wanted to

transfer.      Therefore,     I    would   affirm    the    judgment      of   the

district court.




                                      27
