434 F.3d 249 (4th Cir. 2006), 04-2046, Heiko v. Colombo Savings Bank, F.S.B.

Docket Nº:04-2046.
Citation:434 F.3d 249
Party Name:James HEIKO, Plaintiff-Appellant, v. COLOMBO SAVINGS BANK, F.S.B., Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Supporting Appellant.
Case Date:January 10, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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434 F.3d 249 (4th Cir. 2006)

James HEIKO, Plaintiff-Appellant,


COLOMBO SAVINGS BANK, F.S.B., Defendant-Appellee.

Equal Employment Opportunity Commission, Amicus Supporting Appellant.

No. 04-2046.

United States Court of Appeals, Fourth Circuit.

January 10, 2006

Argued: October 25, 2005

Appeal from the United States District Court for the District of Maryland, at Greenbelt, Roger W. Titus, District Judge CA-03-1122-RWT

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[Copyrighted Material Omitted]

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Stephen Zak Chertkof, HELLER, HURON, CHERTKOF, LERNER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for Appellant.

Barbara L. Sloan, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.

Katherine 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, Washington, D.C., for Amicus Curiae.

Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge WILKINS and Judge GREGORY joined.


WILKINSON, Circuit Judge:

James Heiko brings suit against his former employer, Colombo Savings Bank, alleging a failure to promote and constructive discharge on the basis of disability. At the time of the alleged discrimination, 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 failure to promote, because Heiko has presented a strong prima facie case of disability discrimination and considerable evidence of job qualifications superior to those of the person selected in his stead. Summary judgment was proper, however, on the allegation of constructive discharge. We therefore affirm in part, reverse in part, and remand for further proceedings.


In January 1998, James Heiko commenced employment with Colombo Savings Bank as a Loan Assistant in the Loan Administration 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 promotion to Senior Operations Officer/Table-Funded Loan (TFL) Supervisor. 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

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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 problems 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 matters unrelated to his primary duties. Heiko received favorable performance 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 disease. This disease renders the kidneys virtually inoperative. In a normal 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.

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, working 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 position, 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 interviews.

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

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Mortgage Operations Department. She did not 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 primarily 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 programs utilized in the Loan Administration Department. After her promotion 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 number 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 responsibility 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 the same time...

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