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M&T Bank violated ADA’s accommodation duty, judge rules

No proof of discriminatory firing, judge adds

M&T Bank violated the Americans with Disabilities Act by failing to provide the reasonable accommodation of reassignment for a Baltimore branch manager after she took short-term disability leave during her complicated pregnancy, a federal judge has ruled.

But U.S. District Judge Ellen L. Hollander added that the U.S. Equal Employment Opportunity Commission provided “no basis to doubt the veracity” of the bank’s explanation that it fired Candace McCollin due to job performance and not due to her disability, cervical insufficiency.

Hollander, who sits in Baltimore, rendered her split decision Tuesday based on pretrial summary judgment motions filed by the EEOC and attorneys for M&T Bank. She ordered the two sides to tell her by Sept. 27 if they were interested in having a settlement conference and proposing a schedule to resolve outstanding issues.

According to the EEOC’s lawsuit, M&T Bank failed to accommodate McCollin by reassigning her to a vacant manager position at another branch despite her acknowledged qualifications. The bank countered it was under no legal obligation to reassign her when other candidates were better qualified, more interested and showed greater dedication than she, according to court papers.

Hollander rejected the bank’s argument, saying the ADA lists reassignment among the reasonable accommodations available for “qualified” employees with a disability. The federal law makes no exception for employers who would prefer a more qualified person in the position.

“M&T seeks to single out one listed reasonable accommodation – reassignment to a vacant position – and denigrate it to second-class status,” Hollander wrote in her memorandum opinion.

“For example, if a disabled employee seeks a ‘modified work schedule’ or a ‘modification of equipment’ as a reasonable accommodation, the employer cannot find a more qualified employee to fill the job, and then assert that it was thereby absolved of its obligation to offer a reasonable accommodation to the disabled employee,” Hollander added. “I see no textual basis for treating reassignment different from other reasonable accommodations.”

But Hollander also found no merit in the EEOC’s argument that M&T Bank’s job-related reasons for firing McCollin were a “pretext” for its true motive of not wanting a disabled employee. The bank’s stated reasons for firing McCollin included her lack of energy and excitement for available reassignments and her failure to meet a company-wide, 30-day deadline for redeployment.

“In sum, the EEOC raised several different arguments for concluding that M&T’s stated reasons for terminating McCollin were pretextual,” Hollander wrote. “To be sure, M&T did not rigidly comply with its own rules. It is possible that it may not have treated McCollin fairly. Nevertheless, taking all of the EEOC’s arguments together, the EEOC has given no basis to doubt the veracity of the bank’s explanations or to infer that discrimination was the real reason for McCollin’s termination.”

McCollin had been working for Provident Bank for about seven years when the company was acquired by M&T Bank in 2009, according to the lawsuit. At the time, she was serving as branch manager of the company’s Mondawmin Mall branch.

In 2012, McCollin discovered the branch was scheduled to close and applied to be branch manager at M&T’s Edmondson Village location. She was selected for the job, then learned several months later that she was pregnant, the suit states.

She told her supervisor that she would need pregnancy-related surgery, and on Dec. 10, 2012, she began short-term disability leave under the Family and Medical Leave Act, the lawsuit states.

In April 2013, an M&T Bank senior employee relations specialist sent McCollin a letter informing her she would be eligible for M&T Bank’s redeployment service, which gave her 30 days to secure employment after being cleared to return to work. If she did not comply she would be fired, the letter said, according to the lawsuit.

McCollin was cleared to return to work in August 2013, but the bank failed to reassign her to a vacant position, the suit states. Between Aug. 3 and Aug. 29, McCollin applied for five positions for which she was qualified, such as branch manager and assistant branch manager, but was not hired for any of them, the lawsuit states.

On Sept. 9, 2013, the bank fired McCollin, prompting her to file a complaint with the EEOC.

Neither M&T Bank’s lead attorney, Daniel Z. Herbst, nor EEOC lawyers Debra M. Lawrence and Maria Salacuse returned messages seeking comment Friday on Hollander’s decisions.

Herbst is with Reed Smith LLP in Washington.

The case is docketed in the U.S. District Court as Equal Employment Opportunity Commission v. Manufacturers and Traders Trust Company d/b/a M&T Bank, Civil No. ELH-16-3180.

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