Mary D. Pollard v.  High’s of Baltimore, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MARY D. POLLARD,
Plaintiff-Appellant,
v. No. 01-1342 
HIGH’S OF BALTIMORE, INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-99-3455-AMD)
Argued: October 29, 2001
Decided: February 25, 2002
Before WILKINSON, Chief Judge, GREGORY, Circuit Judge,
and Malcolm J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Howard joined.
COUNSEL
ARGUED: Paul Francis Evelius, WRIGHT, CONSTABLE &
SKEEN, L.L.P., Baltimore, Maryland, for Appellant. Christopher
Mark Feldenzer, LAW OFFICES OF NORMAN R. BUCHSBAUM,
Baltimore, Maryland, for Appellee. ON BRIEF: Norman R. Buchs-
baum, LAW OFFICES OF NORMAN R. BUCHSBAUM, Baltimore,
Maryland, for Appellee.

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OPINION
WILKINSON, Chief Judge:
Plaintiff Mary Pollard claims that defendant High’s of Baltimore,
Inc. violated her rights under the Americans with Disabilities Act
("ADA") by failing to accommodate her disability and by construc-
tively discharging her. Pollard also claims that she was wrongfully
discharged under Maryland law. The district court granted summary
judgment to High’s. Because Pollard’s impairment during her recov-
ery from back surgery was a temporary one not covered by the ADA,
and because High’s did not wrongfully discharge her, we affirm the
judgment of the district court.
I.
Plaintiff Mary Pollard was an Area Supervisor for defendant
High’s of Baltimore, Inc., which operates a chain of convenience
stores. Pollard began working for High’s in 1985 as a store clerk and
was eventually promoted to the Area Supervisor position. Area Super-
visors are responsible for monitoring ten to fifteen stores. This
requires spending considerable time driving from store to store within
an assigned area and occasionally filling in for clerks when clerks
and/or managers are unable to work. Area Supervisors must be on call
twenty-four hours a day in case of emergencies and typically work
more than forty hours per week.
In August 1997, Pollard injured her back while working as an Area
Supervisor. After a brief absence from work, she returned to her job
until December 1997. At that time, Pollard was informed by her per-
sonal physician, Dr. Brager, that she would need back surgery. She
had that surgery in January 1998 and also filed a claim with the Mary-
land Workers’ Compensation Commission. Because of complications
from the surgery, she was not cleared to return to work until April
1998.
In April 1998, Dr. Brager determined that Pollard could work with
the following restrictions: Pollard was limited to working eight hour
days, was prohibited from doing any repetitive bending or any lifting
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of more than five pounds, and was prohibited from driving for
extended periods of time. When she informed High’s of these condi-
tions, High’s told Pollard that it did not have "light-duty" for supervi-
sors and that she could not yet return to work.
During her recovery and attempts to return to work, Pollard contin-
ued to deal with High’s workers’ compensation insurance carrier and
rehabilitation specialists retained by the insurer. From May until June
1998, Pollard participated in a "work-hardening" program with a
physical therapist and consulted with vocational therapists provided
by the insurer. In June 1998, Dr. Rosenthal, who monitored Pollard’s
progress for the insurer, concluded that Pollard could return to work
as an Area Supervisor with restrictions.
On August 25, 1998, Pollard contacted High’s directly and
informed her District Manager, Patricia Kelly, that she was ready to
return to work. Shortly thereafter, a vocational therapist called Pollard
to arrange a meeting between himself, Pollard, and Dr. Brager. Dur-
ing this meeting on September 4, 1998, Dr. Brager reduced the work
restrictions he had imposed on Pollard in April as follows: Pollard
was still prohibited from working more than eight hours a day and
from bending repetitively, but the restriction on lifting was changed
to no more than twenty-five pounds, and Pollard was now permitted
to drive for extended periods.
On September 18, Pollard, the vocational therapist, Kelly, and
High’s Operation Manager, Timothy Sheehan, met to discuss Pol-
lard’s return to work. Everyone at the meeting acknowledges that they
discussed the ways in which Dr. Brager’s restrictions on heavy lifting
and repetitive bending could be implemented. The parties agreed that
Pollard could use the assistance of her coworkers and subordinates to
handle the more physically demanding tasks she would be required to
perform. However, the parties dispute what plan of action regarding
Pollard’s return to work eventually resulted from this discussion.
Pollard contends that in light of Dr. Brager’s eight hour work
restriction, Sheehan insisted that High’s would not permit her to work
as a "part-time" Area Supervisor. Therefore, it was proposed that Pol-
lard begin working as a store clerk. Pollard claims she had no choice
but to work first as a store clerk because she was convinced it was
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the only way she would be permitted to return to her position as an
Area Supervisor. High’s, however, contends that Pollard offered to
work as a store clerk. According to High’s, this arrangement was
implemented to allow Pollard to regain her strength until she could
resume her duties as an Area Supervisor.
Regardless of whose suggestion it was, Pollard returned to work,
as a clerk, on September 23, 1998. She was paid $5.60 an hour, or
approximately $12,000 a year, while working as a clerk, compared to
the $40,000 a year she earned as an Area Supervisor. There is some
confusion about how the issue of Pollard’s pay was to be handled
since she was receiving workers’ compensation income. High’s con-
tends that it believed the insurer would continue to pay partial bene-
fits so that Pollard’s net income would not be reduced, but High’s
does not dispute that during the time Pollard worked as a clerk she
was not paid this difference. And while Pollard contends that High’s
should have known she was not being paid the difference, there is no
record that Pollard formally complained to any High’s official about
her compensation.
Despite the modifications in the store clerk position to accommo-
date her restriction on heavy lifting and repetitive bending, Pollard
found the physical demands of working as a clerk unbearable. Pollard
experienced such pain that she rarely, if ever, completed any of the
eight hour shifts she had been assigned. Yet, on September 29, 1998,
when Dr. Brager lifted her eight hour work restriction, Pollard
reported this to Sheehan and expected to be returned to her Area
Supervisor position. Sheehan, however, insisted that Pollard had to
demonstrate that she could work an eight hour day as a store clerk
before she could return to her Area Supervisor position. Pollard con-
tinued to work as a clerk for approximately one more month before
quitting on October 29, 1998. When she quit, Pollard informed High’s
that she had obtained employment elsewhere. And Pollard did, in fact,
obtain immediate reemployment at a car dealership.
On November 12, 1999, Pollard brought this suit, alleging, inter
alia, that High’s violated her rights under the ADA by failing to
accommodate her disability and constructively discharging her. Pol-
lard also brought an action under Maryland law claiming wrongful
termination. The district court granted summary judgment for High’s
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on November 21, 2000. The district court held that, as a matter of
law, Pollard was "not entitled to disability discrimination protection
because she cannot satisfy the ADA definition of a ‘qualified individ-
ual with a disability.’" The court concluded that there was "no evi-
dence that the physical limitations arising from [Pollard’s] back injury
were severely limiting." The court also found that her immediate
reemployment elsewhere showed she was not "‘substantially limited’
in her ability to work" and that High’s did not regard Pollard as dis-
abled. Finally, the court determined that Pollard’s state law claim for
wrongful discharge also failed as a matter of law because she had "not
proffered evidence to create a factual issue as to whether her working
conditions were purposefully made so intolerable that she was forced
to quit." Pollard appeals.
II.
A.
We begin by considering Pollard’s ADA claim. The ADA prohibits
discrimination by a covered entity, including a private employer such
as High’s, "against a qualified individual with a disability." See 42
U.S.C. §§ 12111(2), 12112(a). Therefore, in order to come within the
ADA’s protected class, a plaintiff must first show that she is disabled
within the meaning of the Act. The ADA defines a "disability" as:
"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impair-
ment." 42 U.S.C. § 12102(2). Pollard’s principal assertion is that she
is substantially limited in, inter alia, the major life activity of working
under § 12102(2)(A). Pollard asserts, and High’s does not dispute,
that her back injury is a physical impairment and that working is a
major life activity.1 Therefore, whether Pollard is "disabled" turns on
whether her back injury is substantially limiting.
1The Supreme Court has noted "the conceptual difficulties inherent in
the argument that working could be a major life activity," but declined
to "decide this difficult question." Toyota Motor Mfg., Ky., Inc. v. Wil-
liams, 122 S. Ct. 681, 692 (2002). This question is likewise not necessary
to the resolution of this case.
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In order to demonstrate that an impairment is substantially limiting,
an individual must show that she is significantly restricted in a major
life activity. See, e.g., Halperin v. Abacus Tech. Corp., 128 F.3d 191,
199 (4th Cir. 1997); 29 C.F.R. § 1630.2(j)(1). And in determining
whether an impairment is substantially limiting, courts may consider
the "nature and severity of the impairment," the "duration or expected
duration of the impairment," and the "permanent or long term impact"
of the impairment. 29 C.F.R. § 1630.2(j)(2).2 These factors indicate
that a temporary impairment, such as recuperation from surgery, will
generally not qualify as a disability under the ADA. See, e.g., 29
C.F.R. § 1630.2(j), app. at 353. An impairment simply cannot be a
substantial limitation on a major life activity if it is expected to
improve in a relatively short period of time.
The Supreme Court’s unanimous opinion in Toyota Motor Mfg.,
Ky., Inc. v. Williams, 122 S. Ct. 681 (2002), supports this conclusion.
In Toyota, the Court stated that the ADA’s "substantially limits"
requirement indicates that an impairment must interfere with a major
life activity "‘considerabl[y]’ or ‘to a large degree.’" 122 S. Ct. at
691. And the Court stressed that an "impairment’s impact must also
be permanent or long-term." Id. The Court’s earlier opinion in Sutton
v. United Air Lines, Inc., 527 U.S. 471 (1999), further suggests that
temporary impairments will typically not allow an individual to claim
relief under the ADA. In Sutton, the Court held that corrective mea-
sures must be taken into account when evaluating an individual’s
impairment. 527 U.S. at 482, 488-89. If an individual’s ability to cor-
rect an impairment must be considered, it seems clear that the individ-
ual’s likelihood of recovery from a temporary impairment must also
be considered.
Prior precedent of this court likewise indicates that temporary
impairments usually do not fall within the ADA’s definition of "dis-
2The persuasive authority of the Equal Employment Opportunity Com-
mission ("EEOC") regulations interpreting the ADA is unclear, and the
issue has explicitly been left open by the Supreme Court. See, e.g.,
Toyota, 122 S. Ct. at 689-90; Sutton v. United Air Lines, Inc., 527 U.S.
471, 480 (1999). However, because both parties accept the EEOC regula-
tions, and determining their validity is not necessary to decide this case,
we have no occasion to determine what level of deference they are due.
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ability." In Halperin, we stressed that "it is evident that the term ‘dis-
ability’ does not include temporary medical conditions, even if those
conditions require extended leaves of absence from work." 128 F.3d
at 199 (internal citations omitted). And several of our sister circuits
have taken a similar approach with respect to temporary impairments
under the Act. See, e.g., Gutridge v. Clure, 153 F.3d 898, 901-02 (8th
Cir. 1998) (holding that plaintiff’s inability to work while recovering
from wrist and elbow surgery did not qualify as a disability under the
ADA and noting that "the ADA requires permanent or long-term
impairments"); Heintzelman v. Runyon, 120 F.3d 143, 144-45 (8th
Cir. 1997) (same with regard to a temporary back injury); Rogers v.
Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (same
with regard to recovery from ankle injury and surgery); McDonald v.
Pennsylvania, 62 F.3d 92, 95-96 (3d Cir. 1995) (same with regard to
recuperation from abdominal surgery); Evans v. City of Dallas, 861
F.2d 846, 852-53 (5th Cir. 1988) (same under the Rehabilitation Act
of 1973 with respect to inability to work due to knee surgery).
However, while the presumption exists that temporary impairments
do not qualify as disabilities under the ADA, temporary conditions
still require a case-by-case evaluation under the Act. See, e.g., Toyota,
122 S. Ct. at 692; Sutton, 527 U.S. at 483; Ennis v. Nat’l Ass’n of Bus.
& Educ. Radio, Inc., 53 F.3d 55, 59-60 (4th Cir. 1995). Temporary
disabilities present a spectrum of cases and at some point the duration
of an impairment could be so long that it cannot properly be charac-
terized as temporary. We must therefore examine how severe Pol-
lard’s particular impairment was, how long her impairment was
expected to last, and how likely it was that her impairment would be
ameliorated over time.
B.
The undisputed evidence in this case demonstrates that Pollard suf-
fered a back injury in August 1997, eventually had to undergo surgery
in January 1998, and, due to an infection, had to take a leave of
absence from work until September 1998. However, this nine-month
absence is insufficient to demonstrate that Pollard had a permanent or
long-term impairment that significantly restricted a major life activity.
First, nothing in the nature or severity of Pollard’s impairment indi-
cated that she had anything other than a temporary impairment.
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Recovering from surgery can frequently take several months. And this
is especially likely when there are complications, such as an infection.
But physical impairments while recuperating from surgery are not
evidence of a permanent disability. See, e.g., Gutridge, 153 F.3d at
901-02. Therefore, nothing in the nature of Pollard’s condition during
the time she worked for High’s suggested that she had a permanent
impairment or that she was not likely to make a full recovery.
Second, there is no evidence that Pollard’s impairment was
expected to be permanent or long-term during the relevant time period
in 1998. In fact, communications to High’s from Pollard and her per-
sonal physician, Dr. Brager, indicated that her condition was thought
to be only temporary and that Pollard would soon be able to resume
her full duties as an Area Supervisor. Doctors’ evaluations, which
indicate that an individual’s impairment is improving, are persuasive
evidence that the impairment is expected to be only temporary. See,
e.g., Mellon v. Fed. Express Corp., 239 F.3d 954, 956-57 (8th Cir.
2001); Heintzelman, 120 F.3d at 145.
Dr. Brager’s contemporaneous treatment notes and his orders based
on these notes explained that Pollard was expected to make a full
recovery. Brager’s notes documented Pollard’s improvement and pro-
gressively removed her work restrictions. For example, Dr. Brager’s
August 18, 1998 note stated that "overall [Pollard] is doing reason-
ably well." Brager went on to explain:
I feel that there is a good chance that after an initial "break
in" that she will be able to get back to the kind of work that
she had done in the past. However, it is not reasonable for
us to expect that she will be able to jump right back in to
fourteen hour days and lifting heavy items on a repetitive
basis. It is my recommendation that the patient go back to
work at no more than eight hours per day with no lifting
greater than 15 to 20 pounds and no repetitive bending.
Two weeks later, on September 4, 1998, Brager wrote another note,
indicating that Pollard was improving and removing some of his prior
restrictions on her activities. He wrote:
Patient is doing quite well with normal activities of daily
living. She is spending more time in and out of her car.
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Overall, I think there is no question that she is now ready
to go back to work at eight hours per day, and I think that
we can even increase her lifting limit to 25 pounds. I still do
not want her to do repetitive bending.
Brager also stated that he would see Pollard again in several weeks
to reevaluate her "for further return to normal duties at work."
On September 29, 1998, several days after Pollard’s return to work
as a store clerk, Brager wrote a third progress note again explaining
that Pollard continued to improve. Brager wrote that she had a "nor-
mal gait with good mobility throughout." And he removed Pollard’s
eight hour work restriction, stating, "I feel at this time [Pollard] is
ready to return to her regular work, unlimited hours, with the only
restriction being that she not lift more than 25 pounds or that she not
bend on a repetitive basis."
In addition to the information Brager provided to High’s, Dr.
Rosenthal, who monitored Pollard’s condition for the workers’ com-
pensation insurer, also reported Pollard’s progressive improvement
over time. Rosenthal rendered an early opinion in February 1998,
shortly after Pollard’s surgery, indicating that he had doubts about her
ability to return to work. However, Rosenthal modified his opinion as
he followed Pollard’s recovery. On June 26, 1998, after examining
Pollard, he stated that "Pollard is doing quite well." He explained: "I
believe that she can return to work as an area supervisor at the present
time; however, she will have some slight restrictions." Rosenthal con-
cluded by stating, "I believe that with time her symptoms will con-
tinue to improve and it is likely that in several months she may
improve enough to actually return to full duty at work." On July 22,
1998, after watching a videotape of Pollard doing various activities,
Rosenthal reaffirmed his conclusion that Pollard was improving.
Additionally, Pollard repeatedly communicated to High’s that she
was ready and able to return to full-time duty as an Area Supervisor.
And Pollard has admitted that, during her employment with High’s,
neither she nor any of her treating physicians or attorneys ever com-
municated to any High’s official that her physical impairment was
permanent. As the district court correctly noted, they could not have
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done so because there was no medical evidence at that time to support
a conclusion that Pollard’s condition was long-term or permanent.3
Pollard contends that nothing in her doctors’ reports specifically
stated that her impairment was temporary, and that Brager never lifted
all of her work restrictions, indicating that she had a permanent or
long-term impairment. We are unpersuaded. In the end, Pollard was
left with only the restrictions that she not lift more than twenty-five
pounds or bend repetitively. These mild limitations are not signifi-
cantly restricting. And we have consistently held that similar restric-
tions are not evidence of a permanent impairment that substantially
limits any major life activity under the ADA. See, e.g., Halperin, 128
F.3d at 200; Williams v. Channel Master Satellite Sys., Inc., 101 F.3d
346, 349 (4th Cir. 1996).
Pollard also seems to claim that because High’s observed that she
could not perform the modified duties of a store clerk for eight hours,
High’s should have recognized that she had a permanent impairment,
or at a minimum, an impairment of an indefinite duration. However,
in the same breath, Pollard argues that High’s should have allowed
her to return to her position as an Area Supervisor. This indicates that
she felt capable of performing an Area Supervisor’s duties, which
indisputably include filling in for store clerks. All that Pollard’s
inability to complete her shift as a store clerk indicated was that, con-
sistent with both the contemporaneous medical reports and Pollard’s
3However, on July 14, 2000, Dr. Brager changed his original opinion
and determined that Pollard was permanently disabled and had been
since January 1998. Contrary to Pollard’s assertion, Dr. Brager’s revised
opinion and the opinions of her hired vocational experts, based on that
2000 report, do not affect our analysis under the ADA because "the date
of an adverse employment decision is the relevant date for determining
whether a plaintiff is a ‘qualified individual with a disability.’" EEOC v.
Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir. 2000); see also Grif-
fith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir. 1998). And as
the district court noted, there does not appear to be any "authority in the
case law interpreting the ADA to allow a medical practitioner’s nunc pro
tunc opinion to contradict his own contemporaneous opinion concerning
a patient’s disability in order to shore up a discrimination claim."
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own statements, Pollard needed a longer break-in period. It did not
indicate that her impairment was permanent.4
Furthermore, Pollard immediately took a job with a car dealership
when she left High’s. This reinforces our conclusion that Pollard was
not substantially limited in the major life activity of working. In order
to be substantially limited in the major life activity of working, "one
must be precluded from more than one type of job, a specialized job,
or a particular job of choice." Sutton, 527 U.S. at 491-92. An individ-
ual must demonstrate that she is unable to work in a broad range of
jobs. Id.; see also 29 C.F.R. § 1630.2(j)(3)(i). And obtaining a new
job is evidence that an impairment is not substantially limiting. See,
e.g., Halperin, 128 F.3d at 200; Heintzelman, 120 F.3d at 145. As the
district court noted, Pollard’s immediate reemployment elsewhere
belies the assertion that she was "disabled" within the ADA’s defini-
tion or that her impairment was anything other than temporary during
the time of her employment at High’s.5
4Pollard claims that she has produced evidence indicating that High’s
knew that she was permanently disabled in 1998. However, this evidence
consists solely of a single handwritten note by Pollard’s vocational thera-
pist regarding a conversation he had with Sheehan about Pollard’s per-
formance as a store clerk. In that conversation, Sheehan allegedly said
that he was "not optimistic" about Pollard’s improvement. This isolated
statement is insufficient to contradict the overwhelming evidence from
Pollard’s doctors and Pollard herself that her condition was improving
and was only temporary.
5Pollard also claims that High’s regarded her as having an impairment
that substantially limited her in the major life activity of working. See 42
U.S.C. § 12102(2)(C). In order to demonstrate that High’s regarded her
as disabled, Pollard must show that High’s entertained a misperception
about her condition. She must show that High’s mistakenly believed her
to have either a substantially limiting impairment that she did not have,
or a substantially limiting impairment when, in fact, her impairment was
nonlimiting. Sutton, 527 U.S. at 489; see also Haulbrook v. Michelin N.
Am., Inc., 252 F.3d 696, 703 (4th Cir. 2001). Pollard has failed to present
evidence to indicate that High’s regarded her as disabled. High’s would
not allow Pollard to resume her Area Supervisor position until she dem-
onstrated that she could work eight hours or more. But, as previously dis-
cussed, this was not done based on a faulty perception that she would
never return to that position. As the district court noted, the evidence
indicates that High’s believed Pollard’s "work limitations were tempo-
rary and that she would eventually, if not soon, return to her former
duties."
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Of course, an impairment that is not substantially limiting under
the ADA definition of "disability" can still be a source of understand-
able concern for the individual affected. We do not make light of Pol-
lard’s surgery or the period of recuperation that followed it. However,
applying the protections of the ADA to temporary impairments, such
as Pollard’s, would dramatically expand the scope of the Act. See,
e.g., Halperin, 128 F.3d at 200. Congressional findings, enacted as
part of the ADA, require the conclusion that Congress did not intend
for the Act’s protections to extend to individuals with temporary
impairments. Congress found that "some 43,000,000 Americans have
one or more physical or mental disabilities." 42 U.S.C. § 12101(a)(1).
If Congress had intended temporary disabilities to be covered by the
Act, this number undoubtedly would have been much higher. Cf.
Toyota, 122 S.Ct. at 691 (drawing same conclusion with respect to
extending the ADA to individuals with impairments that preclude the
performance of "some isolated, unimportant, or particularly difficult
manual task"); Sutton, 527 U.S. at 484-87 (drawing same conclusion
with respect to extending the ADA to individuals with correctable
physical limitations). Federal courts are simply not in the position to
extend the ADA without a directive from Congress, and we decline
to do so in this case.
III.
We next turn to Pollard’s state law claim that she was wrongfully
terminated in retaliation for filing a workers’ compensation claim.6
See Adler v. Am. Standard Corp., 432 A.2d 464, 473 (Md. 1981); Md.
Code Ann. Lab. & Empl. § 9-1105. In order to establish this claim,
Pollard must show that she was discharged in the first place. Ordinar-
ily, an employee who resigns would not have a right of action for abu-
sive discharge. Beye v. Bureau of Nat’l Affairs, 477 A.2d 1197, 1201
(Md. Ct. Spec. App. 1984). However, it is sometimes necessary "to
discard form for substance" and the law therefore recognizes the con-
cept of "constructive discharge." Id. Under Maryland law, the stan-
dard for measuring whether a resignation is actually a constructive
discharge is "whether the employer has deliberately caused or allowed
6Pollard also makes a claim for constructive discharge under the ADA,
but because we determined that Pollard was not disabled within the
meaning of the Act, we need not review this claim.
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the employee’s working conditions to become so intolerable that a
reasonable person in the employee’s place would have felt compelled
to resign." Id. at 1203. By using strong words such as "deliberately,"
"intolerable," and "compelled," Maryland courts, like those in most
states, have set a high standard for constructive discharge claims.
Pollard cannot meet this high threshold. And High’s simply cannot
be said to have rendered Pollard’s working conditions intolerable.
High’s honored Pollard’s request to return to work. And it was hardly
remiss of an employer to ease an employee’s return to the workplace
after that employee had undergone back surgery. It is undisputed that
the Area Supervisor position Pollard wanted involved long hours,
often in excess of forty hours per week, extensive driving between
stores, and supervisory pressure in addition to physical labor and
occasionally filling in as a clerk. Pollard admits that she rarely, if
ever, was able to work more than five or six hours in a modified store
clerk position, so High’s was justified in its conclusion that she was
not yet ready to return to her Area Supervisor position and that she
needed a longer break-in period. If providing such a temporary break-
in period were impermissible, the law would be creating perverse
incentives for employers to force recuperating employees into posi-
tions prematurely, leading potentially to additional liability for the
employer and, most unfortunately, to considerable pain and relapses
for the employee.
Moreover, the conditions under which Pollard returned were hardly
intolerable. To the contrary, as the district court noted:
[Pollard] acknowledges that each time she informed Shee-
han of her need to depart early for the day because of dis-
comfort caused by her back, he never imposed upon her any
condition that she remain at work or suffer adverse conse-
quences. She does not assert she was denied the assistance
of her co-workers to implement the lifting and bending
restrictions imposed by Dr. Brager.
Pollard’s reduction in salary when she returned to work as a store
clerk does not reveal a deliberate attempt by High’s to make Pollard’s
working conditions intolerable. While there is some dispute about
how her pay was going to be handled during this interim period, there
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is no dispute that High’s believed its workers’ compensation insur-
ance carrier was going to pay Pollard the difference between her store
clerk and Area Supervisor salaries. And although Pollard alleges that
High’s should have known that there were problems relating to her
pay, there is no record that Pollard made a formal complaint about not
receiving the workers’ compensation benefits. Instead, Pollard quit
and took a position with a car dealership.
In allowing Pollard to return to work initially as a clerk for a lim-
ited period each day, High’s actions paralleled, in substance, the rec-
ommendations of Pollard’s doctors that she return to work with
restrictions that would be modified over time. The law does not
require a company to insist that an employee perform immediately at
pre-surgery levels. The hazards of such a course are obvious, and
High’s acted responsibly in not subjecting Pollard to them.7
IV.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
7Even if Pollard could proffer enough evidence to show a constructive
discharge, she fails to show a causal nexus between her alleged construc-
tive discharge and the filing of her workers’ compensation claim as
required by Adler. Pollard claims that Sheehan twice made negative
comments about the fact that she had hired a disability lawyer and that
these comments are enough to evidence retaliatory animus. However,
Sheehan’s two brief, off-hand comments about Pollard’s particular attor-
ney made seven months apart do not evidence retaliatory animus for fil-
ing a workers’ compensation claim.
14 POLLARD v. HIGH’S OF BALTIMORE, INC.

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