UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NANCY MILLER,
Plaintiff-Appellant,

v.

BON SECOURS BALTIMORE HEALTH
CORPORATION,
Defendant-Appellee,

and

BON SECOURS HOSPITAL BALTIMORE,
                                                                    No. 98-2046
INCORPORATED; BON SECOURS HEALTH
SYSTEM, INCORPORATED; BON SECOURS
NURSING CARE CENTER,
INCORPORATED, Successor to Bon
Secours Heartlands, Incorporated;
ST. AGNES CARE SERVICES,
INCORPORATED, t/a St. Agnes Nursing
and Rehabilitation Center; ST.
AGNES HEALTH CARE, INCORPORATED,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-1834-WMN)

Argued: June 11, 1999

Decided: September 20, 1999

Before WILKINS and HAMILTON, Circuit Judges, and
JACKSON, United States District Judge for the Eastern District of
Virginia, sitting by designation.

_________________________________________________________________
Affirmed by unpublished per curiam opinion. Judge Jackson wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Risselle Rosenthal Fleisher, Baltimore, Maryland, for
Appellant. Lawrence Stewart Wescott, SEROTTE, ROCKMAN &
WESCOTT, P.A., Baltimore, Maryland, for Appellee. ON BRIEF:
Allen N. Horvitz, FRANKLIN & SCHAPIRO, Baltimore, Maryland,
for Appellant. E. Patrick McDermott, Jonathan P. Sills, SEROTTE,
ROCKMAN & WESCOTT, P.A., Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Nancy Miller appeals an order of the district court granting sum-
mary judgment to the defendant on Miller's disability and age dis-
crimination claims against Bon Secours Baltimore Health Corporation
(Bon Secours). We affirm.

I.

The facts, viewed in the light most favorable to Miller, are as fol-
lows. Miller was hired by Bon Secours in 1988 and, by September
1990, was working 40 hours per week as a Utilization Review Assis-
tant (URA) in Bon Secours' Home Health/Hospice division (Home
Health/Hospice).

In 1989, Miller was diagnosed with Graves' disease, a disorder of
the thyroid gland. Her affliction caused exophthalmos, the protrusion

                    2
of one or both eyeballs resulting from a swelling of the soft tissue in
the eye socket. One of the most significant effects of her condition is
that she cannot control her eye muscles or move her eyes back and
forth without pain, and therefore can read only for very short periods
of time.

In May 1993, Bon Secours decided to computerize some of Mil-
ler's URA duties. When it became apparent that Miller could not
work with computers because of her eye pain, Bon Secours created
the new position of Office Clerk for her. Although the position
offered Miller only 24 hours of work per week instead of 40, it did
not require her to use a computer.

In 1994, in preparation for an accreditation audit from the Joint
Commission on Accreditation of Health Care Organizations, Home
Health/Hospice hired a consultant to conduct a performance and oper-
ation evaluation. The consultant reviewed Home Health/Hospice's
operations and, on November 8, submitted a report identifying numer-
ous areas in which improvement was needed in order to comply with
accreditation standards. One deficiency noted in the report was the
disorganized state of Home Health/Hospice's personnel records.

Shortly thereafter, Bon Secours made several changes regarding its
employees and their duties. On November 17, 1994, Bon Secours
announced that it was filling two vacant "Medical Records Clerk"
positions with two women--both in their twenties--who were to
begin work on November 28, 1994, and December 5, 1994, respec-
tively. Six days later, Miller's supervisor, Brenda Johnson, informed
Miller that her job would be eliminated on December 12, 1994. Her
old duties were to be divided among several employees: the two new
Medical Records Clerks and three other employees, one of whom
Miller estimated to be in his late fifties. Johnson told Miller that she
would be allowed to continue working at Bon Secours"on a special
assignment" that would last only a few weeks. J.A. 508. Johnson told
her that after the project was completed, Bon Secours might be able
to find more projects for her to do.

Miller was informed that her special project would involve charting
certain data from personnel files on a matrix for subsequent entry into
a database by another employee. Miller told Bon Secours that she

                     3
could not accept the assignment because she was unable to focus her
eyes sufficiently to do the work accurately. She added that working
with the matrix would cause her unbearable eye pain. Miller inquired
why she had not been informed sooner of Bon Secours' plan to elimi-
nate her Office Clerk position so that she could have applied for one
of the Medical Records Clerk positions, to which Johnson replied that
they "are full time positions and you know, Mrs. Miller, you have an
eye disease." J.A. 217 (internal quotation marks omitted). Miller then
attempted to persuade her superiors to allow her to work on some-
thing other than the matrices. They refused but urged her at least to
attempt the special project. Miller declined and resigned. She was 57
at the time.

After pursuing administrative remedies, Miller brought this action.
She alleged that the creation of her Office Clerk position had been an
accommodation for her disability and that Bon Secours had violated
the Americans with Disabilities Act (ADA) by constructively dis-
charging her because of her disability and by withdrawing the accom-
modation. See 42 U.S.C.A. § 12112 (West 1995). Miller also alleged
that Bon Secours constructively discharged her because of her age, in
violation of the Age Discrimination in Employment Act (ADEA). See
29 U.S.C.A. § 623 (West 1999 & Supp. 1999).

The district court granted summary judgment against Miller.1
_________________________________________________________________
1 After completion of discovery, Bon Secours moved for summary
judgment, Miller filed an opposition to the motion, and Bon Secours
filed a reply. Miller then became aware of further evidence in Bon
Secours' possession that she believed supported her opposition. She sub-
mitted a proposed addendum to her opposition, accompanied by a
request that she be permitted to supplement her opposition with the mate-
rials. The district court denied as moot Miller's attempt to amend her
opposition because the court did "not find any of the arguments pres-
ented in that addendum to be persuasive." J.A. 570 n.2.

Miller has appealed the denial of her request to supplement her opposi-
tion to Bon Secours' motion for summary judgment but has not
explained how the additional material would have affected the decision
of the district court to grant summary judgment against her on all of her
claims. Miller argues only that the evidence would have demonstrated
"inconsistencies in Bon Secours' case." Brief of Appellant at 34. Accord-
ingly, we affirm the ruling of the district court denying the motion to
supplement.

                    4
Regarding the ADA claims, the court concluded that Miller had not
created a genuine issue of material fact regarding whether she was
constructively discharged, reasoning that as a matter of law a reason-
able person in her position would not have felt compelled to resign.
The district court also ruled that Miller's claim that Bon Secours
wrongfully withdrew its reasonable accommodation of her disability
was based on the legally unsupportable theory that an employer that
offers an accommodation to an employee's disability and subse-
quently alters it violates the ADA. The district court further con-
cluded that Miller's failure to create a genuine issue of material fact
concerning constructive discharge was dispositive of her ADEA
claim.

II.

Miller argues that the district court erred in granting summary
judgment on her claim that she was constructively discharged because
of her disability. We disagree.

The ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disabil-
ity of such individual in regard to . . . discharge." 42 U.S.C.A.
§ 12112(a). To establish a cause of action for disability discrimina-
tion, a plaintiff must show that (1) she has a disability, (2) she is oth-
erwise qualified for the employment in question, and (3) she was
excluded from the employment based on the disability. See Williams
v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 348 (4th Cir.
1996) (per curiam). In the absence of direct evidence of discrimina-
tion, the McDonnell Douglas proof scheme applies to issues of
whether a discharge was based on an employee's disability. See
Runnebaum v. Nationsbank of Md., N.A., 123 F.3d 156, 164 (4th Cir.
1997) (en banc). To establish a prima facie case in an ADA discharge
case, a plaintiff must demonstrate (1) that she was disabled, (2) that
she was discharged, (3) that at the time of the discharge, she was per-
forming at a level that met her employer's legitimate expectations,
and (4) that her discharge occurred under circumstances that raise a
reasonable inference of illegal discrimination. See id. at 164. In order
to state a prima facie case, "[p]laintiff's evidence must be such that,
if the trier of fact finds it credible, and the employer remains silent,
the plaintiff would be entitled to judgment as a matter of law." Ennis

                     5
v. National Ass'n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 59 (4th
Cir. 1995). We review de novo the decision of the district court to
grant summary judgment. See Higgins v. E.I. DuPont de Nemours &
Co., 863 F.2d 1162, 1167 (4th Cir. 1988).

Assuming that Miller can satisfy the first three elements of a prima
facie case, she failed to forecast evidence that would have allowed a
jury reasonably to infer that the elimination of her position occurred
under circumstances that would give rise to an inference of discrimi-
natory animus.2 See Ennis, 53 F.3d at 62 (explaining that in order to
satisfy fourth element of a prima facie case, a plaintiff must "point to
[some] circumstance surrounding her discharge that credibly raises an
inference of unlawful discrimination"). At the time of Miller's resig-
nation, Miller had been performing her duties as Office Clerk for well
over a year without incident. The only evidence we have found in the
record that even arguably suggests the possibility that the elimination
of Miller's position was due to her disability is Miller's statement that
Johnson informed her that she had not urged Miller to apply for the
vacant Medical Records Clerk positions because they were full-time
positions and Miller had an eye disease. However, implicit in John-
son's alleged statement is the assumption that Miller's disability did
not prevent her from performing part-time work. Therefore, because
Miller's Office Clerk position required her to work only 24 hours per
week, Johnson's statement was not evidence from which a jury could
infer that Miller's part-time position was eliminated because of her
disability.

That Miller has failed to produce evidence sufficient to give rise to
a reasonable inference that the employment action taken here was
because of her disability also forecloses Miller's claim that the with-
drawal of the previous accommodation of the Office Clerk position
violated the ADA. To the extent that Miller contends that she is some-
how entitled to lifetime employment because her position was created
as an accommodation for her disability, she is incorrect. See Still v.
_________________________________________________________________
2 Although the district court did not reach this issue, we may "affirm
on any ground fairly supported by the record." Korb v. Lehman, 919 F.2d
243, 246 (4th Cir. 1990). Because we dispose of this claim on this
ground, we do not address Bon Secours' other arguments that Miller
failed to establish a prima facie case of disability discrimination.

                     6
Freeport-McMoran, Inc., 120 F.3d 50, 53 (5th Cir. 1997) (per curiam)
(explaining that employer would have no duty under the ADA to pro-
vide a disabled employee with a new job when his job was eliminated
for reasons unrelated to his disability). Accordingly, the district court
correctly granted summary judgment against Miller on her disability
discrimination claims.3

III.

In sum, the decision of the district court granting summary judg-
ment on all of Miller's claims is affirmed.

AFFIRMED

JACKSON, District Judge, dissenting:

I respectfully dissent. The majority concludes that the district judge
did not err in granting summary judgment on Miller's claim that she
was constructively discharged because of her disability. In concluding
that she did not establish a prima facie case of disability discrimina-
tion, it also finds that Miller "failed to forecast evidence that would
have allowed a jury reasonably to infer that elimination of her posi-
tion occurred under circumstances that would give rise to an inference
of discriminatory animus." However, the record reflects that there is
a genuine issue of material fact on Miller's claim that she was con-
structively discharged because of her disability which makes sum-
mary judgment inappropriate.

Constructive discharge occurs "when `an employer deliberately
makes an employee's working conditions intolerable and thereby
forces him to quit his job.'" Holsey v. Armour & Co., 743 F.2d 199,
209 (4th Cir. 1984) (quoting J.P. Stevens & Co. v. NLRB, 461 F.2d
490, 494 (4th Cir. 1972)). "A plaintiff alleging constructive discharge
must . . . prove two elements: deliberateness of the employer's action,
and intolerability of the working conditions." Bristow v. Daily Press,
Inc., 770 F.2d 1251, 1255 (4th Cir. 1985); see also Johnson v.
Shalala, 991 F.2d 126, 131 (4th Cir. 1993).
_________________________________________________________________
3 Having reviewed Miller's ADEA claim, we conclude that it also is
without merit.

                     7
The district court properly found that Miller had produced suffi-
cient evidence for a jury to find for her on the deliberateness element.
However, a review of this issue is appropriate because the facts are
intertwined and supportive of the conclusion that there is a genuine
issue of material fact on the intolerability of working conditions ele-
ment. Deliberateness exists when the actions of the employer were
"intended by the employer as an effort to force the employee to quit."
Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995)
(quoting Paroline v. Unisys Corp., 879 F.2d 100, 114 (4th Cir.
1989)). Such intent can be inferred from actual or circumstantial evi-
dence. See Holsey, 743 F.2d at 209 (citing United States Postal Ser-
vices v. Aikens, 460 U.S. 711 (1983)). Intent also "may be shown by
evidence that an employee's resignation was the reasonably foresee-
able consequence of the employer's conduct" and may be inferred
from the employer's failure to act when he knows of intolerable con-
ditions. See Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126,
1132-33 (4th Cir.1995). Deliberateness is shown if company person-
nel know of the untenable conditions and take no steps to remedy the
situation. Id. In other words, intent may be inferred from a failure to
act in the face of known intolerable conditions. See Paroline v. Unisys
Corp., 879 F.2d 100, 114 (4th Cir. 1989) (Wilkinson, J. dissenting),
vacated in part, 900 F.2d 27 (4th Cir. 1990) (en banc) (adopting panel
dissenting opinion). A complete failure to act by the employer is not
required; an employer may not insulate itself entirely from liability by
taking some token action in response to intolerable conditions. The
reasonably foreseeable consequence of token action by the employer
would still be that the employee resign. The employer's response
must be reasonably calculated to end the intolerable working environ-
ment. See Landgraf v. USI Film Prods., 968 F.2d 427, 430-31 (5th
Cir. 1992) (finding that "[a] reasonable employee would not have felt
compelled to resign immediately following the institution of measures
which the district court found to be reasonably calculated to stop the
harassment."), cert. granted in part, 507 U.S. 908 (1993), and aff'd,
511 U.S. 244 (1994).

Here, evidence is sufficient for a jury to reasonably find Bon
Secours' actions were deliberate. Although Bon Secours argues that
its managers were merely attempting to streamline the business or
meet the requisites for the forthcoming evaluation, a reasonable jury
could conclude that the true--albeit unstated--purpose behind man-

                    8
agement's actions was to force Miller to leave because her disability
prevented her from adjusting to management changes. Evidence of
such deliberateness can be found in Johnson's comment that they
sought to "let go" of Miller.1

The parties dispute whether the actions of Bon Secours, including
making the focus of Miller's position the entry of data on the matrix,
were "intended by Bon Secours as an effort to force the employee to
quit." Such intent may be inferred from Miller's repeated insistence
to her supervisors that the task would be incredibly painful and
impossible given her medical condition. Irrespective of Bon Secours'
belief that the job would require no new use of her eyes and therefore,
introduce no new pain,2 the supervisors do not dispute that they were
aware of her position that the task would be impossible and that her
only alternative if no other position was available would be to quit.
The fact that Bon Secours was switching to computer entries and try-
ing to streamline its processing in order to make operations more effi-
cient provides an incentive for Bon Secours to want Miller, who was
unable to use computers owing to a medical condition, to quit.
Whether Miller's resignation was the reasonably foreseeable conse-
quence of Bon Secours' conduct, and whether deliberateness may be
inferred from Bon Secours' failure to act when it knew of intolerable
conditions, are also genuine issues of material fact here. By their own
admission, Bon Secours begged Miller to stay, so they knew of her
intention to quit if they did not pose an accommodation that she felt
would not physically injure her.

Deliberateness is shown if company personnel know of the untena-
ble conditions and take no steps to remedy the situation; an employer
may not insulate itself entirely from liability by taking some token
action in response to intolerable conditions. Here, Miller believed that
using the matrix was an untenable condition and not even a token
action was taken to provide another interim task for her.

There is a genuine issue as to whether Bon Secours' response was
_________________________________________________________________
1 On page 10 of the Reply, Brenda Johnson is quoted as having stated
that "[she] was told that it was a business decision to let Nancy go."

2 See page 38 of the Appellee Brief.

                    9
reasonably calculated to end a working environment Miller found
intolerable. "Intolerability of working conditions ... is assessed by the
objective standard of whether a `reasonable person' in the employee's
position would have felt compelled to resign.... An employee is pro-
tected from a calculated effort to pressure him into resignation
through the imposition of unreasonably harsh conditions, in excess of
those faced by his co-workers. He is not, however, guaranteed a
working environment free of stress." Bristow , 770 F.2d at 1255. Intol-
erability requires that a reasonable person in the plaintiff's position
would have felt compelled to resign. See id.

Demoting an employee can constitute an unreasonably harsh condi-
tion of employment, "especially where the demotion is essentially a
career-ending action or a harbinger of dismissal." Carter v. Ball, 33
F.3d 450, 459 (4th Cir. 1994). However, a "slight decrease in pay
coupled with some loss of supervisory responsibilities" will not suf-
fice to prove constructive discharge. Id. (quoting Jurgens v. EEOC,
903 F.2d 386, 392 (5th Cir. 1990)).

Stephens v. C.I.T. Group/Equipment Fin., Inc. , 955 F.2d 1023 (5th
Cir. 1992), is instructive here. There, an employer appealed a jury
verdict for an employee on a claim of age discrimination and con-
structive discharge. The employer had demoted the worker and
reduced his responsibilities. His salary was also cut by twenty per-
cent. In evaluating the evidence, the Fifth Circuit concluded that:
"The combination of the demotion, the continuing limitations on his
salary and responsibility, and [his boss's] repeatedly asking him
whether he was going to quit his job, could make working conditions
intolerable for a reasonable person in [the employee's] position." Id.
at 1027. See also J.P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th
Cir. 1972) (finding that reducing employee's rate of pay with a dis-
criminatory intent constitutes constructive discharge); Guthrie v. Tifco
Indus., 941 F.2d 374, 377 (5th Cir. 1991) (demotion from vice presi-
dent and general manager to senior buyer with substantial reduction
in salary establishes prima facie case of constructive discharge);
Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1281 (7th Cir.
1990) (holding that constructive discharge can be evidenced by demo-
tion from managerial to sales job and accompanying loss of salary).

                    10
Given these precedents, Miller has presented sufficient evidence to
find that there is a genuine issue of material fact as to whether Mil-
ler's work conditions were intolerable. Although she was not formally
"demoted," she went from having a named position and specified
duties as the Office Clerk, to being on an as-needed basis and having
part of her responsibilities reassigned to other workers.3 Both parties
place in issue whether or not her position was in fact eliminated, but
the facts submitted by both lead to a conclusion that she had less
responsibility. A jury could reasonably infer that Bon Secours
intended to make Miller's working conditions intolerable so that she
would resign. A jury should have the responsibility to apply the rea-
sonable person standard in assessing whether Miller's working condi-
tions were intolerable.

Moreover, the same facts that might lead a jury to find deliberate-
ness and intolerability could also lead to an inference of discrimina-
tion by Bon Secours. The majority states that Miller's claim must fail
because there is no evidence that could "give rise to an inference of
discriminatory animus." However, a reasonable jury could find that
the facts surrounding Miller's resignation, including Bon Secours'
insistence on assigning Miller "special projects" which she was inca-
pable of completing because of her disability, give rise to an inference
of illegal discrimination. Where the employer's intent is subject to
dispute, as in this case, the determination of the employer's intent
should not be resolved on summary judgment; it should be left to the
jury to determine whether the employer had a discriminatory animus.

Accordingly, I would reverse the district court's award of summary
judgment and remand this case for a jury to determine whether Miller
was constructively discharged because of her disability.
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3 See page 7 of Reply Brief.

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