                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 09-2216


AUSTINE R. FINK,

               Plaintiff - Appellant,

          v.

JAMES E. RICHMOND, in his individual and official capacity;
CHARLES COUNTY BOARD OF EDUCATION; KEITH A. HETTEL, in his
individual and official capacity as Assistant Superintendant
for Human Resources,

               Defendants – Appellees.

--------------------------------------

PUBLIC JUSTICE CENTER; DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND; AMERICAN CANCER SOCIETY; AMERICAN CANCER
SOCIETY CANCER ACTION NETWORK; MARYLAND DISABILITY LAW
CENTER; LEGAL AID SOCIETY, EMPLOYMENT LAW CENTER,

               Amici Supporting Appellant.



                            No. 09-2269


AUSTINE R. FINK,

               Plaintiff - Appellee,

          v.

JAMES E. RICHMOND, in his individual and official capacity;
CHARLES COUNTY BOARD OF EDUCATION; KEITH A. HETTEL, in his
individual and official capacity as Assistant Superintendant
for Human Resources,

                Defendants – Appellants.

--------------------------------------

PUBLIC JUSTICE CENTER; DISABILITY RIGHTS EDUCATION AND
DEFENSE FUND; AMERICAN CANCER SOCIETY; AMERICAN CANCER
SOCIETY CANCER ACTION NETWORK; MARYLAND DISABILITY LAW
CENTER; LEGAL AID SOCIETY, EMPLOYMENT LAW CENTER,

                Amici Supporting Appellee.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cv-00714-DKC)


Argued:   October 28, 2010               Decided:   December 16, 2010


Before KING, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant/Cross-Appellee.    Leslie Robert
Stellman, HODES, PESSIN & KATZ, PA, Towson, Maryland, for
Appellees/Cross-Appellants.    ON BRIEF: David L. Scher, THE
EMPLOYMENT LAW GROUP, PC, Washington, D.C., for Appellant/Cross-
Appellee.    Amy Folsom Kett, HOGAN LOVELLS US, LLP, McLean,
Virginia; Lisa Y. Settles, HODES, PESSIN & KATZ, PA, Towson,
Maryland, for Appellees/Cross-Appellants.     Monisha Cherayil,
PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici Supporting
Appellant/Cross-Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

        Austine      Fink,       an    art    teacher     employed          by    the       Board   of

Education of Charles County, Maryland (the Board), brought this

action     against         the        Board    and    two   of        the        Board’s      school

administrators         (collectively,           the     defendants).               Fink      alleged

that the defendants, in violation of § 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a), and Title I and Title II of the

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

seq.,     failed      to     accommodate         her     disability              and       retaliated

against        her    after           she     requested     accommodations                   in     her

employment.          The district court awarded summary judgment to the

defendants and, upon our review, we affirm the district court’s

judgment.

                                                I.

       Austine Fink has been employed by the Board since 1996.

Between 1996 and 2006, Fink was an art teacher in the elementary

and middle schools of Charles County.

       In March 2006, Fink was diagnosed with Barrett’s Esophagus

with    High    Grade      Dysplasia.           Because     of    this       condition,           Fink

underwent a surgical procedure during which her esophagus was

removed and her stomach was relocated under her throat.                                           As a

result of the surgery, Fink cannot bend over without vomiting.

She also is unable to lift excessive weight or eat large meals.

Additionally, Fink has frequent bowel movements and occasionally

                                                 3
experiences severe bouts of diarrhea.                     She is unable to walk

long distances at a quick pace.

     After her surgery, Fink requested that the Board provide

various    accommodations       in    her       working   conditions,   including

frequent opportunities to eat small meals and to take bathroom

breaks.    Fink also requested placement in a high school or an

administrative position that did not require her to bend over to

interact   with     students.        In   response     to   Fink’s   request,   the

Board assigned Fink to teach art in a high school.

     In June 2007, Fink underwent surgery to repair a hernia.

After   this   surgery,   Fink       requested      additional   accommodations,

including, among others, assignment to a “fixed” classroom or to

an office location close to a bathroom.

     The Board met with Fink the following month to discuss her

accommodation requests for the upcoming school year.                    After the

meeting, the Board assigned Fink to teach art at a high school

with the following accommodations: 1) access to nearby bathrooms

with the opportunity to obtain breaks on “short” notice; 2) the

opportunity to eat snacks during instructional periods; 3) the

absence of any homeroom or other non-instructional duties; 4)

the absence of any requirement that she push a cart or lift

heavy objects; 5) access to a locked area where she could keep

her personal belongings; and 6) a                   coordinator and “back-up”

coordinator    to    address     accommodation        concerns.       The   Board,

                                            4
however, denied Fink’s request that she be assigned to a “fixed”

classroom.

       Based on the Board’s refusal to grant all her requested

accommodations, Fink did not return to work in October 2007.

The Board thereafter informed Fink that she would be “charged”

sick       and    personal       leave    for    her     absences    until    those    leave

sources were exhausted, and that she would be placed on leave

without pay for any additional absences.

       In July 2008, Fink requested and received a transfer within

the    Charles          County    school    system       to    the   Robert    D.   Stethem

Educational Center, where she was assigned a “fixed” classroom.

Fink currently teaches art at this facility.

       In        her     complaint       filed    in     the    district      court,    Fink

contended that the Board failed to reasonably accommodate her

disability and retaliated against her by refusing to assign her

to    teaching          positions    that       became    vacant     at   McDonough     High

School and at Thomas Stone High School.                         Fink alleged that the

Board assigned her to a less-suitable teaching position, which

required her to teach substitute classes, Spanish classes, and

“in-school retention,” 1 and did not permit her to have a “fixed”

classroom.             Fink also alleged that the Board retaliated against


       1
       An “in-school retention” teaching assignment involved the
supervision of students who were suspended from attending class.



                                                 5
her by withholding payment to her in December 2006 and January

2007 and by placing her on administrative leave without pay in

October 2007.

                                           II.

        The district court concluded that Fink is disabled, within

the meaning of the ADA and the Rehabilitation Act, because her

physical impairment substantially limits her ability to eat.                           As

noted    by   the   district     court,      Fink    has    no     esophagus   and    her

stomach is “quite small.”                 The district court observed that,

therefore,     Fink    needs    to    eat    frequent       small    meals,    and    her

condition      often   results       in   “excessive        diarrhea,    nausea,      and

vomiting.”

     The      district   court       held,       however,   that     Fink’s    physical

impairment does not substantially limit her ability to walk,

because her condition “only affects her ability to walk quickly

or for long distances.”               The district court further observed

that, at the time Fink filed her claim, the acts of “bending and

lifting” were not “major life activities,” within the meaning of

the ADA.       The district court explained that although the ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553,

added     “bending     and     lifting”      to     the     list    of   “major      life

activities,” those amendments did not have retroactive effect

and, therefore, did not apply to Fink’s case.



                                             6
       After concluding that Fink was disabled because of eating

limitations         resulting       from       the     surgical        relocation      of     her

stomach,      the       district       court    held    that       the      Board   reasonably

accommodated Fink’s disability.                       The district court explained

that    the    Board       is      “only       required       to    offer      a    reasonable

accommodation,            not      the       perfect       or         [Fink’s]        preferred

accommodation.”             Accordingly,         the     district           court   held     that

Fink’s placement as a full-time art teacher in a high school

“satisfied [the Board’s] duty to reasonably accommodate [Fink]

regardless of her desire for a different placement.”

       The    district          court    also        addressed        the    Board’s       action

assigning Fink to non-teaching duties in the spring of 2007.

The    district         court    concluded       this     objection          lodged    by    Fink

amounted      to    a    mere    job     complaint,       rather       than    a    failure    to

provide      reasonable         accommodations.            The      district        court    also

rejected      Fink’s      claim     that       the    Board     was      required     to    grant

Fink’s request for a “fixed” classroom in order to accommodate

her need to eat frequent meals and take regular bathroom breaks.

The district court held that the Board reasonably accommodated

Fink   by     permitting         her    to     eat    during       class     periods    and    by

assigning her to teach in classrooms that were located close to

bathrooms.

       The district court also granted summary judgment to the

defendants         on   Fink’s     retaliation         claim,       concluding        that    the

                                                 7
defendants presented non-discriminatory reasons for withholding

payment to Fink for the period at issue.                      The district court

stated    that     the     defendants      withheld      payment     to    Fink     from

December 2006 through February 2007 based on a calculation error

regarding Fink’s sick leave, and that the defendants placed Fink

on   administrative        leave    without      pay    because   Fink    refused     to

return to work in October 2007.                  As explained by the district

court,    Fink    failed    to     show   that    the   defendants’       reasons    for

withholding payment to her were pretextual. 2                 The district court

also held that Fink failed to show that the defendants’ refusal

to assign her to the teaching positions at Thomas Stone High

School    and     McDonough        High    School       constituted       an   adverse

employment       action.      Fink    timely      appealed    from    the      district

court’s judgment. 3




      2
       In addition, the district court held that the Eleventh
Amendment does not bar Fink’s claims, and that Title II of the
ADA applies to this case. The Board challenges these rulings in
its cross-appeal, stating that we should address the Board’s
arguments only if the Court reverses any aspect of the district
court’s judgment.   In view of our decision affirming the award
of summary judgment in favor of the defendants, we do not
address those issues.
      3
       Fink challenges the district court’s grant of summary
judgment as to her claims under Title II of the ADA. Fink does
not appeal the district court’s judgment on her claims under
Title I of the ADA.



                                           8
                                       III.

     We review the district court’s award of summary judgment de

novo.     Waller v. City of Danville, 556 F.3d 171, 174 (4th Cir.

2009).     When an employee is “disabled,” within the meaning of

the ADA and the Rehabilitation Act, an employer must provide

“reasonable accommodations” to the disabled employee unless the

employer     can        demonstrate     that        the    provision      of     such

accommodations would impose an “undue hardship.”                     EEOC v. Sara

Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001) (quoting 42 U.S.C.

§ 12112(b)(5)(A)); see Doe v. Univ. of Md. Medical Sys. Corp.,

50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining that the same

elements apply to the ADA and § 504 of the Rehabilitation Act).

Importantly, however, the ADA and the Rehabilitation Act do not

require    that    an    employer    provide    a    disabled   employee       with   a

perfect accommodation or an accommodation most preferable to the

employee.    See Gile v. United Airlines, Inc., 95 F.3d 492, 499

(7th Cir. 1996).

     We    have    reviewed    the    record,       the   briefs,   and   arguments

presented by the parties in this appeal.                  Based on the thorough

reasons articulated by the district court, we hold that Fink

failed to raise a genuine issue of material fact regarding the

accommodations that the Board provided for her disability, and

that those accommodations were reasonable and sufficient under



                                         9
the controlling requirements of the ADA and the Rehabilitation

Act.    See Sara Lee Corp., 237 F.3d at 350.

       We    also   agree       with   the    district      court’s    reasoning     in

awarding      summary       judgment         to    the    defendants      on     Fink’s

retaliation claims.             Fink failed to present evidence that the

defendants gave a pretextual explanation for withholding payment

to Fink for the brief period at issue.                       Fink also failed to

present evidence that the defendants’ refusal to consider her

for    two   teaching      vacancies    constituted        an   adverse   employment

action.      We therefore affirm the award of summary judgment to

the defendants based on the reasoning provided by the district

court.       See    Fink   v.    Richmond,        No.   8:07-cv-00714-DCK      (D.   Md.

Sept. 29, 2009).

                                                                               AFFIRMED




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