Heiko v. Colombo Savings Bank ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES HEIKO, 
Plaintiff-Appellant,
v.
COLOMBO SAVINGS BANK, F.S.B.,
Defendant-Appellee.  No. 04-2046
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(CA-03-1122-RWT)
Argued: October 25, 2005
Decided: January 10, 2006
Before WILKINS, Chief Judge, and WILKINSON
and GREGORY, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Wilkinson wrote the opinion, in which Chief Judge Wil-
kins and Judge Gregory joined.
COUNSEL
ARGUED: Stephen Zak Chertkof, HELLER, HURON, CHERTKOF,
LERNER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for
2 HEIKO v. COLOMBO SAVINGS BANK
Appellant. Barbara L. Sloan, EQUAL EMPLOYMENT OPPORTU-
NITY COMMISSION, Washington, D.C., for Amicus Curiae. Kath-
erine Kristin Brewer, SCHMELTZER, APTAKER & SHEPARD,
P.C., Washington, D.C., for Appellee. ON BRIEF: Douglas B.
Huron, Tammany M. Kramer, HELLER, HURON, CHERTKOF,
LERNER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for
Appellant. Gary L. Lieber, Anessa Abrams, SCHMELTZER,
APTAKER & SHEPARD, P.C., Washington, D.C., for Appellee. Eric
S. Dreiband, General Counsel, Lorraine C. Davis, Acting Associate
General Counsel, Vincent J. Blackwood, Assistant General Counsel,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae.
OPINION
WILKINSON, Circuit Judge:
James Heiko brings suit against his former employer, Colombo
Savings Bank, alleging a failure to promote and constructive dis-
charge on the basis of disability. At the time of the alleged discrimi-
nation, Heiko suffered from end-stage renal disease — near complete
kidney failure — and spent three afternoons per week, for a total of
twelve hours, attached to a dialysis machine that removed fatal toxins
from his blood. The district court granted summary judgment for
Colombo, holding that Heiko was not disabled under the Americans
with Disabilities Act (ADA) because the elimination of bodily waste
is not a "major life activity." See 42 U.S.C. § 12102(2)(A) (2000). It
also held in the alternative that even if Heiko was disabled, he had not
proffered facts sufficient to support a finding of discrimination.
We hold that elimination of bodily waste is a "major life activity"
within the meaning of the ADA. With respect to the allegations of
discrimination, summary judgment was improper on the claim of fail-
ure to promote, because Heiko has presented a strong prima facie case
of disability discrimination and considerable evidence of job qualifi-
cations superior to those of the person selected in his stead. Summary
judgment was proper, however, on the allegation of constructive dis-
charge. We therefore affirm in part, reverse in part, and remand for
further proceedings.
HEIKO v. COLOMBO SAVINGS BANK 3
I.
In January 1998, James Heiko commenced employment with
Colombo Savings Bank as a Loan Assistant in the Loan Administra-
tion Department. Colombo is a small commercial bank in Maryland
that employs approximately thirty people. Prior to joining Colombo,
Heiko had received his undergraduate degree in mathematics in 1994.
He had worked in the banking industry since 1990, most recently as
a research representative with the Chase Manhattan Bank.
Heiko moved quickly through the ranks at Colombo. In April 1999,
the bank’s President and CEO, John Lane, approved Heiko’s promo-
tion to Senior Operations Officer/Table-Funded Loan (TFL) Supervi-
sor. With Lane’s approval, Heiko was again promoted in June 1999,
this time to Assistant Vice President of Loan Administration. In this
new capacity, Heiko handled a wide range of commercial lending
responsibilities, including reviewing escrow analyses, monitoring
commercial loans, and preparing reports and audits. He also assumed
some supervisory authority over various lower-level employees in
Loan Administration.
Heiko had a variety of other duties at Colombo. Throughout the
course of his tenure at the bank, he was often asked to tackle prob-
lems outside the Loan Administration Department. Among other
things, he was responsible for creating a loan tracking device and a
weekly loan report. He also participated in meetings on banking mat-
ters unrelated to his primary duties. Heiko received favorable perfor-
mance evaluations, and in December 2000 Lane named him
Employee of the Year at a bank holiday function.
Heiko had polycystic kidney disease when he joined Colombo.
Several months after his promotion to Assistant Vice President, his
condition deteriorated and he was diagnosed with end-stage renal dis-
ease. This disease renders the kidneys virtually inoperative. In a nor-
mal human body, the kidneys filter from the blood dangerous toxins
that naturally build up over time, allowing these toxins to exit the
body during urination. To avoid toxic waste buildup, and death within
several months, end-stage renal disease must be treated with either a
kidney transplant or dialysis.
4 HEIKO v. COLOMBO SAVINGS BANK
Heiko began hemodialysis in November 1999. In this procedure,
Heiko’s blood was pumped through a dialysis machine, which purged
the toxins and returned the cleansed blood to his body. Heiko attached
to the dialysis machine by inserting a needle into a fistula located in
his arm. A fistula is a surgically-constructed connection between an
artery and vein, designed to withstand frequent needle insertions and
augment blood flow.
Heiko’s dialysis regimen required a substantial amount of time and
forced him to rearrange his work schedule. He underwent dialysis
three afternoons each week for four hours each day. To keep up a
forty-hour work week, Heiko had to maintain irregular hours, work-
ing from 7:00 a.m. to 2:00 p.m. on the days he received dialysis.
Heiko’s dialysis treatment caused him significant discomfort.
According to Heiko, dialysis was "like having a part-time job." Being
attached to a dialysis machine was constricting, and often caused pain
and swelling in his arm, where the needle attached to his fistula. After
dialysis, he immediately went home to rest and felt exhausted for the
remainder of the evening. He was usually able to take only baths
because standing in the shower was too difficult. In the following
mornings he would often feel the urge to vomit, and would frequently
remain nauseous well into that day. Dialysis also necessitated changes
to his diet, such as limitations on potassium intake, occasional fasting,
and a reduction in fluid consumption. Heiko was once hospitalized for
low potassium levels and had one of his kidneys removed in 2000. He
also had several surgeries to build and repair his fistula.
After Heiko had begun dialysis, Heather Brown, Colombo’s Vice
President of Loan Administration and Heiko’s immediate supervisor,
began preparing to leave Colombo. Heiko was interested in her posi-
tion, and discussed his desire for a promotion with Brown and Lane.
In March 2001, however, Lane awarded the Vice President position
to Sandy Rubin on Brown’s recommendation. Brown had considered
only Rubin and Heiko for the position, but had not conducted inter-
views.
Prior to her promotion to Vice President, Rubin had been employed
with Colombo for approximately eighteen months and had served as
the head of Colombo’s Mortgage Operations Department. She did not
HEIKO v. COLOMBO SAVINGS BANK 5
have a college degree, but had worked in banking since the mid-
1970s. The Mortgage Operations Department handled mortgage loans
and was initially distinct from Loan Administration, which was pri-
marily concerned with commercial loans. Mortgage Operations was
eventually subsumed into Loan Administration and Brown became
Rubin’s supervisor. Rubin was not, however, familiar with certain
types of management reports or with several of the computer pro-
grams utilized in the Loan Administration Department. After her pro-
motion to Vice President, Heiko assisted in training her on various
software applications and spreadsheet functions.
Upon learning that Rubin had received the promotion, Heiko
approached both Lane and Brown to determine why he had not been
named Vice President. According to Heiko, Lane referred to the num-
ber of hours the Vice President would need to work and noted that if
Heiko was to receive a kidney transplant, he would have to be out of
the office for four to six months. Heiko contends that he had informed
Lane on numerous occasions that a kidney transplant would only
require a six-week absence. When Heiko confronted Brown about
Rubin’s promotion, she replied: "Look at your situation."
Heiko warned Lane that promoting Rubin was a mistake and
informed various Colombo officers that he would not work under her.
Lane asked Heiko if he would, in addition to some of his current
responsibilities, be interested in taking over Rubin’s former responsi-
bility managing the Mortgage Operations Department, which was
apparently in disarray. Heiko declined this lateral move.
In July 2001, Heiko instead transferred to the Loan Processing
Department and began work as a loan processor. This move resulted
in the loss of his Assistant Vice President title and his previous
responsibilities, but not a diminution in his salary. Heiko was aware
that he would no longer be considered an Assistant Vice President
once he joined Loan Processing. On July 13, 2001, he was informed
that he would not receive an annual pay raise.
Soon after, Heiko complained to several Colombo officers that the
bank was discriminating against him on the basis of his kidney failure
by not promoting him and later reducing his responsibilities. He also
relayed this complaint to Lane, and they discussed the matter. Around
6 HEIKO v. COLOMBO SAVINGS BANK
the same time, Heiko informed Colombo that he had been searching
for new employment.
In early August of 2001, Lane informed Heiko that the Loan Pro-
cessing Department was overstaffed and that the only available posi-
tion was as his executive assistant. Heiko accepted this position. Lane
also told Heiko that he would not be needed before 7:30 a.m. This
impacted Heiko’s total hours, because he still had to leave early for
dialysis every other day. After several weeks as an executive assis-
tant, Lane asked Heiko to move back to Loan Administration because
a Loan Assistant position had become available. This was the position
Heiko had occupied when he first joined Colombo.
Heiko resigned from Colombo in October 2001, after accepting
employment elsewhere. In June 2003, he received a kidney transplant
and does not now require dialysis. Sandy Rubin, meanwhile, did not
fare well as the Vice President of Loan Administration. In January
2002, Lane demoted Rubin to her former position and cut her salary.
She resigned in February 2002 after Colombo decided to terminate
her employment.
Heiko filed suit against Colombo in state court in March 2003
alleging discrimination on the basis of his kidney failure, in violation
of Article 1, § 27-19 of the Montgomery County Code (2004). The
parties agreed that § 27-19 was to be interpreted consistent with the
federal ADA. As relevant here, Heiko contended that he was covered
under the definition of "disability" set forth in the ADA because his
end-stage renal disease rendered him "substantially limit[ed]" in the
"major life activit[y]" of eliminating bodily waste. See 42 U.S.C.
§ 12102(2)(A). Colombo removed the suit to federal court on the
basis of diversity jurisdiction. See 28 U.S.C. § 1441 (2000).
The district court granted summary judgment for Colombo. It held
that waste elimination was not a major life activity, and that Heiko
was therefore not disabled. It also held that even if he had a disability,
Heiko had not set forth facts sufficient to permit findings of discrimi-
natory failure to promote or constructive discharge. Heiko appeals.
II.
The threshold question before us is whether Heiko is disabled
within the meaning of the ADA. A court may resolve this issue as a
HEIKO v. COLOMBO SAVINGS BANK 7
matter of law. See Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th
Cir. 2001) (involving the parallel provisions of the Rehabilitation Act,
29 U.S.C. § 701 et seq. (2000)). While Heiko has brought this suit
under the Montgomery County Code, the relevant definition of "dis-
ability" in this municipal code is virtually identical to the ADA’s defi-
nition of the term. Compare Montgomery County, Md., Code art. 1,
§ 27-6(c) with 42 U.S.C. § 12102(2). The parties agree that the Mont-
gomery County Code tracks the ADA in all relevant respects, and we
accordingly analyze this case under that federal statute. See also
Cohen v. Montgomery County Dep’t of Health & Human Servs., 817
A.2d 915, 922-25 (Md. Ct. Spec. App. 2003) (interpreting the disabil-
ity discrimination provisions in the Montgomery County Code as con-
gruent with the ADA).
The ADA provides that an individual has a disability if, inter alia,
he suffers from "a physical or mental impairment that substantially
limits one or more of [his] major life activities." 42 U.S.C.
§ 12102(2)(A). Heiko is thus required to make a three-part showing.
He must prove (1) that he has a physical or mental impairment, (2)
that this impairment implicates at least one major life activity, and (3)
that the limitation is substantial. See Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 194-95 (2002); Bragdon v. Abbott, 524 U.S.
624, 631 (1998); Pollard v. High’s of Baltimore, Inc., 281 F.3d 462,
467 (4th Cir. 2002). The parties agree that Heiko’s end-stage renal
disease constitutes a physical impairment. We thus proceed to the
major life activity and substantial limitation questions.
A.
The ADA does not define the term "major life activities." Torcasio
v. Murray, 57 F.3d 1340, 1353 (4th Cir. 1995). The Supreme Court
has, however, explained that "‘[m]ajor’ in the phrase ‘major life activ-
ities’ means important." Toyota Motor Mfg., 534 U.S. at 197. An
activity may lack a "public" or "economic" dimension and still be
considered important. Bragdon, 524 U.S. at 638. We have therefore
concluded that "[t]he term ‘major life activities’ refers to ‘those activ-
ities that are of central importance to daily life,’" Rohan v. Networks
Presentations LLC, 375 F.3d 266, 274 (4th Cir. 2004) (quoting
Toyota Motor Mfg., 534 U.S. at 197) and "that the average person in
8 HEIKO v. COLOMBO SAVINGS BANK
the general population can perform with little or no difficulty," id.(internal quotation marks omitted).
Heiko contends that his kidney failure severely impacted his ability
to eliminate bodily waste. Under the framework presented above, we
conclude that waste elimination qualifies as a major life activity. The
elimination of bodily waste is basic to any person’s daily regimen. It
is also a daily activity that the average person can accomplish with
little effort, see Rohan, 375 F.3d at 274, by urinating several times a
day. The elimination of bodily waste is, moreover, not only "of cen-
tral importance to daily life," Toyota Motor Mfg., 534 U.S. at 197, but
of life-sustaining importance. Without it, hazardous toxins would
remain in the body and eventually become fatal. For all of these rea-
sons, waste elimination also fits comfortably within the Equal
Employment Opportunity Commission’s (EEOC) non-exhaustive list
of major life activities, which includes "functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. § 1630.2(i) (2004).1
It is therefore not surprising that every circuit court to address the
issue has concluded that waste elimination is a major life activity. For
example, in Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 380 (3d
Cir. 2004), the plaintiff suffered from end-stage renal disease and
received dialysis treatment. The Third Circuit concluded that "pro-
cessing and eliminating waste from the blood qualifies as a major life
activity because, in their absence, death results." Id. at 384; see Kam-
mueller v. Loomis, Fargo & Co., 383 F.3d 779, 785 (8th Cir. 2004)
(holding that plaintiff who underwent dialysis was "incapable of
doing activities of central importance to a person’s life, such as
cleansing one’s own blood cells"); see also Gilbert v. Frank, 949 F.2d
637, 641 (2d Cir. 1991) (noting that "persons whose kidneys . . . do
not function sufficiently to rid their bodies of waste matter without
1
The degree of deference, if any, that is due to the EEOC’s regulations
remains an open question. See Albertson’s, Inc. v. Kirkingburg, 527 U.S.
555, 563 n.10 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 480
(1999). Because the parties agree that the regulations are instructive, we
look to the regulations for general guidance and express no opinion on
the appropriate level of deference they may be due. See Pollard, 281
F.3d at 468 n.2.
HEIKO v. COLOMBO SAVINGS BANK 9
regular dialysis" may be "substantially limited in their ability to care
for themselves").
The district court reasoned, however, that waste elimination was
not a major life activity because it was merely a characteristic of
Heiko’s kidney failure. This was not correct. The impairment in this
case is Heiko’s kidney failure. The effect of this impairment is an
inability to eliminate waste naturally. See also Fiscus, 385 F.3d at 382("Absence of kidney function [is] the impairment; the consequence
[is] the impact on the activity of blood cleansing and body waste pro-
cessing. Thus it was incorrect for the District Court to conflate the
two.").2
Were the district court correct, the ADA would not cover major life
activities that are closely linked with serious disabilities. For example,
the Supreme Court in Toyota explicitly noted that "major life activi-
ties" is "a category that includes such basic abilities as walking, see-
ing, and hearing." 534 U.S. at 197. But an inability to see could of
course be recast as a characteristic of blindness, and an inability to
hear could likewise be reframed as a feature of deafness. See also 29
C.F.R. § 1630.2(i) ("major life activities" include seeing and hearing).
Waste elimination thus cannot be a mere "characteristic" of end-stage
renal disease for the purposes of the ADA.
This does not mean, however, that every example of organ failure
will be equated with a major life activity. In this case, kidney failure
is a physical impairment with a direct effect on waste elimination, an
activity of critical importance that the average individual can easily
perform. See Rohan, 375 F.3d at 274. We have no occasion to con-
sider whether the malfunction of other organs would have a similar
2
Colombo’s reliance on Furnish v. SVI Systems, Inc., 270 F.3d 445(7th Cir. 2001), is therefore misplaced. In Furnish, a plaintiff with Hepa-
titis B brought suit under the sole theory that he was substantially limited
in the major life activity of "liver function." Id. at 450. In rejecting this
argument, the Seventh Circuit noted that the plaintiff might have suc-
ceeded had he tied his impairment to a valid major life activity. Id. In this
case, Heiko has done precisely that, and is not contending that "kidney
function" is a major life activity. See also Fiscus, 385 F.3d at 385 (distin-
guishing Furnish on identical grounds).
10 HEIKO v. COLOMBO SAVINGS BANK
effect on a major life activity. See Fiscus, 385 F.3d at 383 ("[M]ajor
life activities are conceptually distinct from the physical impairments
that give[ ] rise to them."). Such questions are simply not before us.
Nor do we accept Colombo’s contention that recognizing waste
elimination as a major life activity would effectively read out the sep-
arate statutory requirement that a plaintiff prove he is substantially
limited. To be sure, recognition of a major life activity gives rise to
the implication that certain impairments are by their very nature sub-
stantially limiting: the major life activity of seeing, for example, is
always substantially limited by blindness. See, e.g., Runnebaum v.
NationsBank of Md., N.A., 123 F.3d 156, 166 n.5 (4th Cir. 1997) (en
banc) (plurality) ("[W]e recognize that some conditions will always
constitute impairments that substantially limit the major life activities
of the afflicted individual.") abrogated on other grounds, Bragdon,
524 U.S. at 631. It would be ironic, to say the least, if the existence
of such severe conditions prevented us from recognizing the major
life activities they impair. Nevertheless, the substantiality inquiry
remains analytically separate from the identification of a major life
activity. As we demonstrate below, whether a person is substantially
limited is a distinct and individualized inquiry that must consider not
only a particular plaintiff’s limitations, but also the effects of correc-
tive mitigation measures. See Sutton v. United Air Lines, Inc., 527
U.S. 471, 482-83 (1999); Halperin v. Abacus Tech. Corp., 128 F.3d
191, 198 n.10 (4th Cir. 1997). Not every impairment of sight is a sub-
stantial limitation, see Sutton, 527 U.S. at 488-89, and there is little
reason to think that every instance of kidney disease will constitute
a substantial limitation either.
B.
We thus turn to whether Heiko’s kidney failure "substantially
limit[ed]" his ability to eliminate waste. 42 U.S.C. § 12102(2)(A).
The statutory term "substantially" means "considerable or to a large
degree." Toyota Motor Mfg., 534 U.S. at 196 (internal quotation
marks omitted). This definition precludes coverage of impairments
whose effects on a major life activity rise only to the level of a "mere
difference" with the abilities of an average individual. Albertson’s,
Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999); see also EEOC v. Sara
Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (no substantial limi-
HEIKO v. COLOMBO SAVINGS BANK 11
tation in major life activity of sleeping where plaintiff did not experi-
ence a greater lack of sleep than the average individual). As we have
explained, "[t]he phrase ‘substantially limits’ sets a threshold that
excludes minor impairments from coverage under the ADA." Id. at
352.
Among the factors courts should consider in making the substantial
limitation determination are the impairment’s "nature and severity"
and "expected duration." 29 C.F.R. § 1630.2(j)(2)(i)-(ii); see also Pol-
lard, 281 F.3d at 467-68 (same). The impairment must, for example,
be "permanent or long term." Toyota Motor Mfg., 534 U.S. at 198.
Sporadic or otherwise temporary impairments do not qualify as sub-
stantial limitations. See Rohan, 375 F.3d at 276; Pollard, 281 F.3d at
468.
Whether Heiko is substantially limited in a major life activity is
thus determined by examining the unique facts and circumstances sur-
rounding his particular impairment. See Toyota Motor Mfg., 534 U.S.
at 198; Sutton, 527 U.S. at 483; Ennis v. Nat’l Ass’n of Bus. & Educ.
Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995). We conduct this inquiry
by assessing the impairment in combination with any positive or neg-
ative effects from mitigation measures. See Sutton, 527 U.S. at 482.
Reviewing Heiko’s end-stage renal disease and dialysis under this
individualized framework, we conclude that Heiko was substantially
limited in his ability to eliminate waste. Indeed, no reasonable jury
could conclude otherwise. In order to accomplish the equivalent of
urination, Heiko had to insert a needle into his surgically-fashioned
fistula and tether himself to a dialysis machine three afternoons per
week, for a total of twelve hours. This did not include travel time to
and from the dialysis center, or the time required to set up the dialysis
equipment. Dialysis also unyieldingly set the terms of his daily sched-
ule. While he was able to work a forty-hour week, his condition
required him to arrive at work by 7:00 a.m. every other day. And
whereas urination does not have side effects, after dialysis Heiko felt
nauseous and depleted, unable even to stand in the shower. These
aspects of his renal failure and concomitant treatment dramatically
"distinguish [him] from the general population" in the major life
activity of waste elimination. Rohan, 375 F.3d at 275. And while dial-
ysis did of course enable Heiko to eliminate waste, the ADA "ad-
12 HEIKO v. COLOMBO SAVINGS BANK
dresses substantial limitations on major life activities, not utter
inabilities." Bragdon, 524 U.S. at 641.
Heiko’s impairment was also neither fleeting or temporary, Rohan,
375 F.3d at 276, as he dealt with dialysis and its unfortunate effects
each day. The prospect of a kidney transplant was speculative at best
— Heiko waited on a transplant list for over two years, and only
received a new kidney after nearly four years of dialysis. Crucially,
at all times relevant to this case, he labored under the uncompromis-
ing limitations we have just described. For all of these reasons,
Heiko’s impairment and mitigation measures rise to the level of
severity that the substantial limitation requirement demands. See 29
C.F.R. § 1630.2(j)(2)(i).3
C.
In sum, plaintiff’s end-stage renal disease is his physical impair-
ment, the elimination of waste is the major life activity that is limited,
and the limitation was a substantial one because Heiko was required
to spend at least four hours, three days a week undergoing dialysis in
order to remove waste from his body. Considering Heiko’s circum-
stances through any broader lens on disability only reconfirms a close
textual analysis under the statute. We can hardly believe that Con-
gress wished to leave outside the purview of the ADA an individual
determined to surmount a real disability and make a constructive con-
tribution to the workplace. The ADA was designed to protect the
"truly disabled, but genuinely capable." See Halperin, 128 F.3d at
200. In short, Heiko seems just the sort of person for whom the ADA
was intended. Viewed from the perspective of the forest or the trees,
the Act’s coverage of him is apparent.
3
We express no view on whether other plaintiffs with end-stage renal
disease will be substantially limited in a major life activity. Like all oth-
ers claiming an impairment under the Act, they must prove "the extent
of the limitation in terms of their own experience." Albertson’s, 527 U.S.
at 567. Whether a plaintiff is substantially limited is a case-by-case deter-
mination, Sara Lee Corp., 237 F.3d at 352, and we therefore have no
occasion to consider whether individuals who require less time-
consuming dialysis treatment or exhibit fewer adverse side effects will
be disabled under the ADA.
HEIKO v. COLOMBO SAVINGS BANK 13
III.
We next address the district court’s grant of summary judgment to
Colombo on Heiko’s failure to promote and constructive discharge
claims. We conclude that summary judgment was improper on the
claim of failure to promote, which presents a jury question. As to
Heiko’s constructive discharge contention, the district court properly
awarded summary judgment to the employer.
A.
Heiko first alleges that Colombo did not promote him to Vice Pres-
ident of Loan Administration because of his end-stage renal disease.
Colombo contends that it promoted Sandy Rubin instead of Heiko due
to her superior qualifications. Because Colombo disclaims any sug-
gestion that its decision was founded on Heiko’s disability, this case
is properly analyzed under the familiar framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its
progeny. See Halperin, 128 F.3d at 196 n.6; Ennis, 53 F.3d at 57-58;
see also Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003) (not-
ing that courts use the McDonnell Douglas methodology for ADA
disparate-treatment claims).4
Under McDonnell Douglas, the plaintiff must first make out a
prima facie case of discrimination. See Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). If he does so
successfully, the burden then shifts to the defendant to provide a legit-
imate, non-discriminatory explanation for its decision. See Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Bryant v.
Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 545 (4th Cir. 2003). Once
such a neutral reason is proffered, the burden reverts to the plaintiff
4
Colombo does not contend that promoting an individual who was
required to leave the office three afternoons per week was an accommo-
dation that "would impose an undue hardship" on its operations. 42
U.S.C. § 12112(b)(5)(A); see also Montgomery County, Md., Code art.
1, § 27-6(bb). We therefore express no opinion on whether small busi-
nesses like Colombo, whose enterprise requires interaction with custom-
ers and supervision of employees during normal business hours, are
required to accommodate disabilities in such a fashion.
14 HEIKO v. COLOMBO SAVINGS BANK
to establish that the employer’s non-discriminatory rationale is a pre-
text for intentional discrimination. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000). At this point, "a plaintiff’s
prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact
to conclude that the employer unlawfully discriminated." Id. at 148;
see also Anderson, 406 F.3d at 269.
B.
There can be no doubt in this case that Heiko has established at
least a prima facie inference of discrimination, and that Colombo has
successfully rebutted it by responding that it selected Rubin over
Heiko due to her superior qualifications. See Evans v. Techs. Applica-
tions & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) ("[R]elative
employee qualifications are widely recognized as valid, non-
discriminatory bases for any adverse employment decision."). We
thus turn to the crux of the matter — whether there is sufficient evi-
dence of pretext. Reeves, 530 U.S. at 143. A plaintiff alleging a fail-
ure to promote can prove pretext by showing that he was better
qualified, or by amassing circumstantial evidence that otherwise
undermines the credibility of the employer’s stated reasons. See
Anderson, 406 F.3d at 269; Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 648-49 & n.4 (4th Cir. 2002).
In conducting this analysis, we are mindful that we assess relative
job qualifications based on the criteria that the employer has estab-
lished as relevant to the position in question. See Anderson, 406 F.3d
at 269 (citing Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997)
and Jiminez v. Mary Washington Coll., 57 F.3d 369, 383 (4th Cir.
1995)). Here, Colombo focused primarily on banking skills and expe-
rience. In a job description of the Vice President position, Colombo
listed as the relevant job specifications computer literacy and "[l]oan
managerial servicing/administration experience in a banking atmo-
sphere." Heather Brown testified that there was no "specific formula"
she used to evaluate candidates, but that banking experience and how
much training the candidate would require were primary consider-
ations.
Construing the facts in favor of Heiko, as we must, we conclude
that a reasonable factfinder could determine that Colombo’s explana-
HEIKO v. COLOMBO SAVINGS BANK 15
tion for its promotion decision is "unworthy of credence." Burdine,
450 U.S. at 256. Heiko was climbing his way toward the upper rungs
of Loan Administration when his kidney condition declined and he
began extensive dialysis treatment. He was then denied a promotion.
Heiko has satisfied his burden under McDonnell Douglas because in
light of Colombo’s proffered job criteria, a reasonable jury could con-
clude — on the basis of Heiko’s greater familiarity with various
aspects of commercial lending, his superior mastery of the relevant
computer programs used in the Loan Administration Department, his
quick succession of promotions, and his performance evaluations —
that Colombo’s contention that he was less qualified than Rubin is not
to be believed. We address each in turn.
First, a reasonable factfinder could determine that by the time of
Rubin’s promotion, Heiko had comparatively greater experience with
both the Loan Administration Department and commercial lending,
one of the primary banking areas handled by that department. Heiko
had been employed with Colombo for over three years, all in Loan
Administration. His duties as Senior Operations Officer/TFL Supervi-
sor and Assistant Vice President of Loan Administration both
required intimate knowledge of commercial lending practices and
procedures. Nor was Heiko unacquainted with mortgage lending, as
illustrated by the fact that he was asked to manage the Mortgage
Operations Department after Rubin was promoted.
Rubin, by contrast, had worked in the banking industry since the
mid-1970s, but her speciality was mortgage loans. She had only
started with Colombo in August 1999, a year and a half before her
eventual promotion to Vice President. Colombo does not dispute that
she initially reported to Heiko when she first joined the bank. While
Rubin’s Mortgage Operations Department was merged under Loan
Administration before she was promoted to Vice President, her main
responsibilities continued to concern mortgage lending. According to
Heiko, Rubin informed him that she had not dealt with commercial
loan documents recently in her career. President Lane himself noted
that Rubin needed to enhance her understanding of commercial lend-
ing practices. And as of her 2000 performance evaluation, one of her
"principal weaknesses" was that she was still in the process of learn-
ing "the bank’s philosophy." She was not, for example, familiar with
several of Loan Administration’s management reports. Heiko was.
16 HEIKO v. COLOMBO SAVINGS BANK
Second, Rubin’s lack of knowledge about the inner workings of
Loan Administration was made evident in her comparative unfamil-
iarity with the computer programs critical to that department. In a job
description for the Vice President position, Colombo listed the fol-
lowing as the first job specification: "Must be computer literate. Must
have spreadsheet and word processing experience." Heather Brown
expressly acknowledged that Heiko had computer skills that out-
matched Rubin’s. He had taken undergraduate courses in computer
science, was versatile in numerous software programs, and had used
advanced software applications in a variety of special projects, such
as his creation of a loan tracking device. He was also familiar with
predecessor versions of the bank’s data processing system. Rubin had
no such experience, and Colombo does not dispute that upon Rubin’s
promotion to Vice President, both Heiko and Brown had to train her
on spreadsheet software. While Colombo presently appears to suggest
that computer experience was not a relevant criterion for selecting a
Vice President, a jury could certainly conclude otherwise in light of
the fact that it was listed as the first job specification for the position.
See Dennis, 290 F.3d at 646-47 (pretext may be inferred from
employer’s reliance on criteria that are different from those contained
in written job qualifications).
Third, Heiko was on the rise at Colombo. His success at the bank
translated into a swift series of promotions prior to the time when he
began dialysis. A little over a year after he started in Loan Adminis-
tration, he was elevated to Senior Operations Officer/TFL Supervisor,
a position that required a wide range of customer service and com-
puter skills, as well as "[w]orking knowledge of the financial institu-
tion’s commercial and consumer lending procedures." Several months
later, in June 1999, John Lane named him Assistant Vice President of
Loan Administration. Lane announced the promotion in a congratula-
tory memorandum circulated to the entire bank, writing that Heiko
"has shown outstanding leadership and knows how to be a team
player." Heather Brown had recommended Heiko for this promotion
in part because of his "positive attitude." In his new capacity as Assis-
tant Vice President, Heiko assumed an even greater number of
responsibilities, including supervising various employees in Loan
Administration. In July 1999, Heather Brown recommended him for
a five percent pay increase, noting that Heiko was "responsible for
day-to-day operations" in Loan Administration, and that he was a
HEIKO v. COLOMBO SAVINGS BANK 17
"very hard working individual" who was "loyal and supportive of
Colombo."
Lastly, Heiko’s performance evaluations illustrate his professional
momentum, and provide another critical point of comparison with
Sandy Rubin. In 1999, Rubin was given a 53 out of 60, and Heather
Brown rated Heiko a 44 out of 60. Brown did note, however, that
"Jim is a very organized individual who is willing to help others
achieve their goals," and that he had undertaken several projects out-
side of his normal job responsibilities. By 2000, Colombo’s assess-
ment of the two had changed. In that year, Brown gave Heiko a 53
of 60, writing that he was a "team player" whose customer service had
improved. She also recommended that he be given further managerial
training and more supervisory responsibility. Rubin, by comparison,
was given a 50 out of 60, and her evaluator wrote that her "weakness-
[es] would be a continual learning process of the bank’s philosophy
and knowledge of overall banking."
While Colombo does point to areas in Heiko’s performance evalua-
tions suggesting that he could improve his interpersonal skills, there
is ample evidence pointing in precisely the opposite direction. Brown,
for example, testified that Heiko’s interpersonal skills had improved
since his 2000 performance evaluation. Heiko was also named
Employee of the Year in December 2000. Though Colombo contends
that it gave Heiko this award for "humanitarian" reasons, a jury could
certainly believe that bestowing such an award at a company-wide
gathering to an employee moving his way up the corporate ladder was
not solely a token gesture.
Colombo’s primary defense of its promotion decision is that Rubin
was chosen because she had greater management expertise due to her
previous jobs at other banks and her role in the Mortgage Operations
Department. But this does not "conclusively reveal[ ] some other,
nondiscriminatory reason for [Colombo’s] decision." Reeves, 530
U.S. at 148. In his capacity as Assistant Vice President, Heiko did
supervise several employees in Loan Administration, and Heather
Brown specifically recommended in his 2000 performance evaluation
that he be given greater managerial responsibility. In addition, when
Rubin was promoted to Vice President, Lane specifically asked Heiko
if he would head up the Mortgage Operations Department, the depart-
18 HEIKO v. COLOMBO SAVINGS BANK
ment that Rubin formerly led. And while Rubin may have had more
years of management experience than Heiko, Colombo does not dis-
pute that the department Rubin had recently overseen was in need of
a major turn-around. Nor is it clear how Rubin’s management experi-
ence made her a stronger candidate when as of her 2000 employment
evaluation, one of her main weaknesses was a lack of "knowledge of
overall banking."
In short, a reasonable factfinder could conclude that Heiko was
poised for the Vice President position and displayed aptitude for his
chosen profession. He began dialysis shortly after becoming an Assis-
tant Vice President, and was thereafter denied a promotion, which
was instead given to a fellow employee who lacked many of his quali-
fications. We therefore conclude that Heiko has made a sufficient
showing that Colombo’s explanation for its promotion decision was
pretextual. While no single factor is dispositive, taken in combination
they suggest that Heiko was discernibly better qualified than Rubin.
When a plaintiff asserts job qualifications that are similar or only
slightly superior to those of the person eventually selected, the pro-
motion decision remains vested in the sound business judgment of the
employer. See Dennis, 290 F.3d at 649 n.4; Evans, 80 F.3d at 960.
But where, as here, the plaintiff has made a strong showing that his
qualifications are demonstrably superior, he has provided sufficient
evidence that the employer’s explanation may be pretext for discrimi-
nation. Anderson, 406 F.3d at 269.5
5
Heiko also points to various statements by Colombo officers that he
argues may be probative of discriminatory bias. For example, Lane alleg-
edly made a reference to the time Heiko would need to be out for a kid-
ney transplant, and Brown said "Look at your situation" when he asked
why Rubin was promoted. Because we conclude that Heiko’s prima facie
case and his evidence of superior qualifications fairly rebut Colombo’s
asserted non-discriminatory rationale, Reeves, 530 U.S. at 148-49, it is
unnecessary for us to address these various remarks, some of which are
rather opaque. We note, however, that a jury could find them relevant in
its determination of whether Colombo in fact discriminated against
Heiko on the basis of his disability. See id. at 152.
HEIKO v. COLOMBO SAVINGS BANK 19
IV.
We now turn to Heiko’s constructive discharge claim. Heiko con-
tends that he was forced to leave Colombo because the bank reduced
his responsibilities and made his workday unbearable. To prove con-
structive discharge, a plaintiff must at the outset show that his
employer "deliberately made [his] working conditions intolerable in
an effort to induce [him] to quit." Matvia v. Bald Head Island Mgmt.,
Inc., 259 F.3d 261, 272 (4th Cir. 2001) (internal quotation marks
omitted). Plaintiff must therefore demonstrate: (1) that the employer’s
actions were deliberate, and (2) that working conditions were intolera-
ble. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186-87
(4th Cir. 2004); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d
239, 244 (4th Cir. 1997). An employer’s actions are deliberate only
if they "were intended by the employer as an effort to force the plain-
tiff to quit." Matvia, 259 F.3d at 272. Whether an employment envi-
ronment is intolerable is determined from the objective perspective of
a reasonable person. Williams v. Giant Food Inc., 370 F.3d 423, 434
(4th Cir. 2004). "However, mere dissatisfaction with work assign-
ments, a feeling of being unfairly criticized, or difficult or unpleasant
working conditions are not so intolerable as to compel a reasonable
person to resign." James v. Booz-Allen & Hamilton, Inc., 368 F.3d
371, 378 (4th Cir. 2004) (internal quotation marks and alterations
omitted).
On the record before us, Heiko has not shown a deliberate intent
on the part of Colombo to force him to leave. See Honor, 383 F.3d
at 187. In fact, it was Heiko himself who initiated the events that ulti-
mately led to his departure. Upon Rubin’s promotion to Vice Presi-
dent, Heiko told Lane that Rubin’s selection was a mistake and
announced that he would not work under her. Heiko was then offered
a lateral transfer to a position in the Mortgage Operations Depart-
ment, which he also refused. Instead, with full awareness that he
would lose his Assistant Vice President title and his Loan Administra-
tion responsibilities, he chose to relocate to the Loan Processing
Department. Colombo allowed him to do this even though he had rel-
atively less experience with loan approval, this department’s primary
responsibility. Colombo also later made room for him in several dif-
ferent positions.
20 HEIKO v. COLOMBO SAVINGS BANK
While Heiko was progressively asked to undertake tasks more
menial than those to which he was accustomed, he does not contend
that such duties were inappropriate for someone who did not occupy
an Assistant Vice President position. And though he did not receive
an annual raise, he does not suggest that the salary he received was
incommensurate with his reduced responsibilities at that time.
Far from revealing that the bank deliberately intended to force him
to leave, Colombo’s actions squarely indicate that it exercised com-
mendable patience with an employee who was frustrated, perhaps jus-
tifiably, over not receiving a promotion. And while Heiko suggests
that the bank could have adopted a restructuring proposal that might
have created a new position for him, it surely cannot be the case that
deliberateness may be proven by an otherwise benign business deci-
sion concerning internal corporate configuration.
Even if Heiko could prove that Colombo deliberately intended to
force him out, he still cannot show that the work environment at the
bank was objectively intolerable. See Munday, 126 F.3d at 244. That
Heiko was not made Vice President is hardly conclusive, because "the
denial of a single promotional opportunity is insufficient to create an
intolerable working environment." Taylor v. Va. Union Univ., 193
F.3d 219, 237-38 (4th Cir. 1999) (en banc) abrogated on other
grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). And Heiko
does not suggest that the bank objected to the unconventional sched-
ule he was required to maintain in order to undergo dialysis. To be
sure, his schedule was altered by a half-hour when he briefly worked
as Lane’s executive assistant, but Lane recommended that he return
to Loan Administration in part because it would afford him more flex-
ibility. Furthermore, while comments coworkers made that Heiko was
only working "half days" may reveal an insensitivity to his disability,
they do not nearly rise to the level of intolerability. "[D]ifficult or
unpleasant working conditions" do not qualify as intolerable condi-
tions, Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994), nor are
employees "guaranteed a working environment free of stress," Honor,
383 F.3d at 187 n.2 (internal quotation marks omitted).
V.
The Americans with Disabilities Act and parallel state and local
statutes reflect our national commitment that disabled persons should
HEIKO v. COLOMBO SAVINGS BANK 21
lead lives that, to the extent possible, are unencumbered by the dis-
abilities that have befallen them. An individual’s impairment should
not operate to restrain his professional aspirations when in spite of his
limitations, he has dedicated himself to his craft and sought advance-
ment in his field. In the face of formidable obstacles, plaintiff per-
sisted in his desire to develop his banking skills. While the ADA
protects only a limited segment of our population, James Heiko fits
clearly within its bounds. And though Colombo at times appears to
have been appreciative of Heiko’s work, there is sufficient evidence
for a jury to conclude that its denial of a promotion was made on a
prohibited basis. Accordingly, the judgment is therefore
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.