Crabill v. Charlotte Mecklenburg Board of Education

UNPUBLISHED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10-1553 affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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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

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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

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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.

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