Parkinson v. Anne Arundel Medical Center , 79 F. App'x 602 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RONALD W. PARKINSON, 
Plaintiff-Appellant,
v.
 No. 02-2000
ANNE ARUNDEL MEDICAL CENTER;
BONNIE POZNANSKI; CYNTHIA WILSON,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-01-1628-JFM)
Argued: September 24, 2003
Decided: October 31, 2003
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Robin R. Cockey, COCKEY, BRENNAN &
MALONEY, P.C., Salisbury, Maryland, for Appellant. Paul M.
Lusky, KRUCHKO & FRIES, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 PARKINSON v. ANNE ARUNDEL MEDICAL CENTER
OPINION
PER CURIAM:
Appellant, Ronald W. Parkinson, appeals from the district court’s
grant of summary judgment in favor of his former employer, Anne
Arundel Medical Center ("AAMC"), and two of the center’s employ-
ees, Bonnie Poznanski and Cynthia Wilson (collectively, "appellees"),
in his civil action alleging violations of the Americans with Disabili-
ties Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The district court con-
cluded that Parkinson did not establish that he was disabled as defined
by the ADA, thus defeating his claim for failure to provide reasonable
accommodation. The court also concluded that Parkinson failed to
establish a prima facie case of retaliation under the ADA.* Finding
no reversible error, we now affirm.
I.
Parkinson began work at AAMC in 1974 as a Radiology Techni-
cian, and by 1995 he had risen to Chief of the Ultrasound Department.
In June 1998, Parkinson suffered a heart attack. Although he recov-
ered, Parkinson claims he was prohibited from doing strenuous exer-
cise or lifting heavy weights (activities that he previously enjoyed),
and was permitted to return to work only subject to the restrictions
from his doctor that he avoid stress and not work overtime. When he
returned to work in September 1998 after his convalescence, he
claims that he communicated his restriction regarding overtime to
AAMC. He claims that, as a result, he was taken off "on-call" status
and saw his average hours per week decline from about 70 to about
40. Nevertheless, he contends, his supervisors pressed him to accept
overtime and criticized him when he refused it — although he admits
he occasionally worked overtime.
According to Parkinson, one such example occurred on December
15, 1999. On that date, Poznanski, who was the manager of the Radi-
ology Department, insisted that Parkinson work overtime to perform
*Parkinson also brought common law claims, which the district court
declined to exercise supplemental jurisdiction over and dismissed with-
out prejudice. Parkinson subsequently refiled those claims in state court.
PARKINSON v. ANNE ARUNDEL MEDICAL CENTER 3
a carotid ultrasound test. When Parkinson refused, Poznanski sus-
pended him for one day without pay. Thereafter, Parkinson claims, he
was demoted from Chief to senior ultrasound technician.
Parkinson asserted in his suit that AAMC refused to honor his
request not to work overtime after his heart attack, thereby failing to
reasonably accommodate the limitations imposed by his disability of
severe coronary artery disease. He also claimed that AAMC engaged
in retaliatory discrimination under the ADA when it suspended and
allegedly demoted him following his request for accommodation. In
a well-reasoned opinion, the district court granted summary judgment
in favor of appellees on both claims. See Parkinson v. Anne Arundel
Med. Ctr., Inc., 214 F. Supp. 2d 511 (D. Md. 2002).
II.
The district court concluded that Parkinson’s claim for failure to
provide reasonable accommodation was defeated since Parkinson
could not establish, as a threshold matter, that he had a "disability."
The court reasoned that Parkinson had not established either that his
restrictions on work or on physical activity made his impairment an
actual disability under the ADA, or that appellees regarded him as
having such a disability during the relevant period.
Parkinson also claimed that even if he was not disabled as defined
by the ADA, appellees still violated the prohibition on retaliation set
forth in 42 U.S.C. § 12203. To establish a prima facie case of retalia-
tion under the ADA, a plaintiff must show that he engaged in pro-
tected activity; that his employer took adverse action against him; and
that there existed a causal connection between the protected activity
and the adverse action. Rhoads v. FDIC, 257 F.3d 373, 392 (4th Cir.
2001), cert. denied, 535 U.S. 933 (2002). The district court held that
even if Parkinson’s request not to work overtime when he returned
from his heart attack in September 1998 was protected activity, he
failed to demonstrate that his alleged demotion was an adverse
employment action or that a causal connection existed between that
protected activity and his suspension.
The district court did not specifically address the question of
whether Parkinson engaged in protected activity when he refused to
4 PARKINSON v. ANNE ARUNDEL MEDICAL CENTER
work overtime on December 15, 1999. To show that he was engaged
in protected activity, Parkinson had to prove that he held a reasonable,
good-faith belief that the practice he opposed that day — appellees’
requirement that he stay after his shift to complete the ultrasound pro-
cedure — was an unlawful refusal to provide reasonable accommoda-
tion to limitations imposed by his alleged disability. See Peters v.
Jenney, 327 F.3d 307, 320-321 (4th Cir. 2003); Rhoads, 257 F.3d at387 n.11 (stating as a element of a claim for failure to accommodate
that the employer must have "refused" to make reasonable accommo-
dation). But before he could establish that appellees refused to pro-
vide reasonable accommodation in violation of the ADA, Parkinson
first must have, at minimum, communicated to appellees a wish for
accommodation of his disability. See Ballard v. Rubin, 284 F.3d 957,
960-962 (8th Cir. 2002). Of course, a request for accommodation
need not, in all cases, "be in writing, be made by the employee, or for-
mally invoke the magic words ‘reasonable accommodation.’" Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999). But Par-
kinson was capable of communicating his wish for accommodation,
and he could not have reasonably believed that his earlier request not
to work overtime remained outstanding by the time of his December
1999 refusal. Appellees presented unrebutted evidence that Parkinson
worked overtime on numerous occasions between September 1998
and December 1999, and even Parkinson admitted that he worked
some overtime. See J.A. 220-21; Reply Br. at 3. Therefore, for Par-
kinson to have engaged in protected activity, he must have reasonably
believed, at least, that his actions and statements in refusing to work
overtime that day "ma[de] clear" to appellees "that [he] want[ed]
assistance for his . . . disability." Taylor, 184 F.3d at 313 (emphasis
added).
Even viewing the evidence in the light most favorable to Parkin-
son, however, he could not have reasonably believed that appellees
understood him to have requested accommodation for his disability
when he refused to stay after his shift ended that day. As such, he can-
not make out a prima facie case of retaliation for any actions taken
by appellees because of his refusal. Parkinson admitted in his deposi-
tion testimony that, when refusing Poznanski’s order to work over-
time to perform the ultrasound procedure, he "told [Poznanski] . . .
[he] had a doctor’s appointment at 4:00 and that [another employee
could] do it." J.A. 59. (He later testified that his appointment was with
PARKINSON v. ANNE ARUNDEL MEDICAL CENTER 5
a dentist. J.A. 65.) Parkinson then repeatedly told Poznanski that he
had not worked overtime since his first heart attack, J.A. 59-61. How-
ever, such statements not only failed to link explicitly his refusal to
stay to limitations imposed by his impairment, but were also, and
more importantly, plainly contradicted by the record. See supra at
4-5.
Nothing in Parkinson’s statements or actions in refusing to work
overtime that day would have reasonably led appellees to understand
that he desired accommodation of limitations imposed by his coro-
nary artery disease. In fact, it would have been far more reasonable
for appellees to have understood his request not to work overtime to
have been made for an entirely unrelated reason: so that he would not
miss an appointment he had scheduled for that afternoon. It follows,
then, that it was objectively unreasonable for Parkinson to have
believed that, in requiring him to work overtime that day over his pro-
tests, appellees refused to provide reasonable accommodation after he
had made a request for accommodation of his disability, and thereby
violated the ADA. Moreover, because Parkinson’s unprotected activ-
ity that day was almost certainly the cause of his suspension, we are
confident that the district court reached the correct conclusion that
there was no causal connection between Parkinson’s suspension and
his request not to work overtime made over a year earlier.
Finally, to the extent that Parkinson did make out a prima facie
case of retaliation as to his suspension, the district court concluded
that he failed to rebut, by showing pretext, appellees’ legitimate non-
retaliatory reasons offered for that action. This conclusion by the dis-
trict court was also correct. The job description for Parkinson’s posi-
tion, as well as AAMC’s employment handbook and written overtime
policy, collectively establish that Parkinson was required to work
overtime when his superiors requested he do so, and the possibility
that he could be disciplined if he refused.
CONCLUSION
Upon review of the parties’ briefs and oral arguments, and upon
our consideration, we affirm the district court’s judgment for the rea-
sons stated by that court, except to the extent that those reasons differ
from the reasoning presented above.
AFFIRMED