govinfo:USCOURTS-mdd-8_23-cv-02812-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
 
 : 
REBECCA LOPEZ-DUPREY 
 : 
 
 v. : Civil Action No. DKC 23-2812 
 
 : 
MGM NATIONAL HARBOR, LLC 
 : 
 
MEMORANDUM OPINION 
 Presently pending and ready for resolution in this 
disability-based employment discrimination case is the motion for 
summary judgment filed by MGM National Harbor, LLC (“MGM” or 
“Defendant”). (ECF No. 60). The issues have been briefed, and 
the court now rules, no hearing being deemed necessary. Local 
Rule 105.6. For the following reasons, the motion for summary 
judgment will be granted in part and denied in part. 
I. Background 
A. Factual Background
1 
In November 2016, Rebecca Lopez-Duprey (“Ms. Lopez-Duprey” or 
“Plaintiff”) began working as a cocktail server at MGM National 
Harbor. (ECF No. 60-2 ¶ 3). At MGM, cocktail servers are 
represented by the UNITE HERE Local 25 union (“Union”). (Id.). 
As a cocktail server, Ms. Lopez -Duprey occasionally took “Star 
Trainer” shifts, for which she would be paid double to train new 
 
1 The facts herein are undisputed unless otherwise noted. 

2 
 
hires. (ECF Nos. 60-2 ¶ 12; 60-4, at 3).2 “Star Trainer” was not 
a job title, but rather a shift title. (ECF Nos. 60-2 ¶ 12; 60-
4, at 3). The shifts were not available to employees with 
disciplinary actions in their file. (ECF Nos. 60-2 ¶ 12; 60-4, at 
5). 
Ms. Lopez-Duprey, like other cocktail servers, was required 
to wear high heels as part of her work uniform. (ECF Nos. 60-2 ¶ 
7; 60-4, at 6–7). The high heels, however, caused her considerable 
discomfort and would make her feet bleed. (ECF No. 60-4, at 11). 
On July 1, 2019, MGM sent a “Request for Information from 
Health Care Provider” to Ms. Lopez-Duprey’s doctor stating: 
MGM NATIONAL HARBOR employs [Ms. Lopez-
Duprey]. MGM NATIONAL HARBOR has recently 
been alerted to the possibility that [Ms. 
Lopez-Duprey] may suffer from a disability, as 
that term is defined by the Americans with 
Disabilities Act, as amended (the “ADA”). 
Your assistance is appreciated in providing 
information to assist the Company in 
determining whether the individual is entitled 
to a reasonable accommodation in employment 
and the nature of any such accommodations. 
 
Please review the employee’s job 
description which is attached hereto, complete 
the questions contained in the medical 
certification form also attached hereto, and 
sign this form. 
 
2 Although the hourly pay doubled, “Star Trainer” shifts also 
evidently required the cocktail server to split tips with the new 
hire, resulting in potentially lower overall pay. (ECF No. 60-4, 
at 4). Ms. Lopez-Duprey explained that MGM was “pretty much 
begging other people because nobody wanted to be a star trainer 
anymore because of the tips split and stuff like that.” (Id.). 

3 
 
 
(ECF No. 60-3, at 124). Ms. Lopez-Duprey then submitted a formal 
Request for Accommodation on July 20, 2019, followed by a doctor’s 
note signed July 29, 2019, explaining that Ms. Lopez-Duprey “has 
severe equinus as well as achilles tendonitis” and she should 
“avoid wearing heels and wear good supportive shoes” instead, and 
the completed form dated August 2, 2019. (ECF No. 60-3, at 118–
21, 122, 125–29). In the completed form, Ms. Lopez-Duprey’s doctor 
reiterated that she suffers from equinus and Achilles tendonitis, 
stated that she is substantially limited in walking and standing, 
and indicated that the accommodations she required were to “avoid[] 
heels” and “wear[] good supportive shoes.” (Id. at 125–29). On 
August 30, 2019, MGM granted Ms. Lopez-Duprey a “temporary 
accommodation” to “wear flats/good support shoes instead of 
heels.” (Id. at 136; ECF No. 60-2 ¶ 19). 
Although none of Ms. Lopez-Duprey’s ADA documentation 
mentioned sneakers or Skechers, (ECF Nos. 60-2 ¶ 19; 60-4, at 20), 
she contends that she brought in a pair of Skechers brand tennis 
shoes to her supervisor and the Beverage Manager at the time, Janae 
Madric, who said “okay” when she saw them, (ECF No. 60-4, at 13). 
Ms. Lopez-Duprey states that she decided to wear these Skechers 
because that is the pair of shoes she discussed with her doctor. 
(Id. at 20). Brian Morgan, who worked with Ms. Lopez-Duprey on 
her 2019 accommodation, stated on May 3, 2022, that whenever a 

4 
 
cocktail server makes a request to wear flat shoes, “they are 
typically expected to wear a flat dress shoe that is . . . not [a] 
sneaker[]. We would never grant approval for an employee to wear 
brand specific shoes like [Skechers] unless that was specifically 
requested from her doctor to be able to wear sneakers.” (ECF No. 
60-3, at 175). Ms. Lopez-Duprey wore the black mesh-top Skechers 
sneakers for the following two years. (See ECF Nos. 60-2 ¶¶ 21, 
23; 60-4, at 15). 
In June 2021, Cami Johnson replaced Ms. Madric as the new 
Beverage Manager and, several months later, MGM hired Joe Farruggio 
as its new Beverage Director. (ECF No. 60-2 ¶ 22). On December 
15, 2021, the Beverage Department held a potluck event, to which 
Ms. Lopez-Duprey wore her black Skechers sneakers. (Id. ¶ 23). 
At the potluck, some members of Ms. Lopez-Duprey’s management team 
approached her about her footwear. (Id.). She informed them of 
her accommodation, (id.), and contends that Mr. Farruggio told her 
she had no accommodation, (ECF No. 60-4, at 16). The following 
day, Ms. Lopez-Duprey sent an email to Ms. Johnson and Mr. 
Farruggio with several documents supporting her accommodation 
attached. (ECF No. 60-2 ¶ 24). Ms. Johnson responded to her email 
the same day, stating: “I now have the accommodation approval for 
you from 2019 for flats, not a sneaker-like shoe[]. You are 

5 
 
permitted to wear flat dress shoes, not a sneaker-like shoe.” (ECF 
No. 60-3, at 138). 
MGM posted a Shoe Standards Reminder (“Reminder”) for 
beverage employees in the service bars on December 20, 2021, and 
an updated version on December 27, 2021. (ECF Nos. 60-2 ¶¶ 27–
28; 60-3, at 106). The Reminder stated that casino servers are 
required to wear one- to three-inch heels and the “[s]hoes that 
are not approved are: Ballerinas, Birkenstocks, bedroom slippers, 
wedge heels, flip flops, sling backs, crocs, any slipper style, 
sneakers, tennis shoes or shoes with excessive strapping or 
ornamentation.” (ECF Nos. 60-2 ¶ 28; 60-3, at 106).3 The Reminder 
also provided images of approved shoes, including non-heeled shoes 
for employees with ADA accommodations. (ECF Nos. 60-2 ¶ 28; 60-
3, at 106). Finally, the Reminder instructed beverage employees 
with ADA accommodations to have compliant shoes by January 10, 
2022, and explained that “[f]ailure to adhere to the appearance 
 
3 The Reminder reflected the MGM Appearance Standards Policy 
then in place, which required that footwear “present a business-
like appearance” and prohibited sneakers and tennis shoes (unless 
part of a uniform). (ECF No. 60-3, at 104). Ms. Lopez-Duprey 
contended in her deposition that this policy had changed since she 
started working for MGM. (ECF No. 60-4, at 9). The record evidence 
supports that contention: Looking at her training history, she was 
trained on a “New Appearance Standards Policy” in October 2020. 
(ECF No. 60-3, at 85). It is unclear whether the previous policy 
that was in place when her accommodation was granted in 2019 
differed in any material way. Regardless, she does not appear to 
dispute that the updated policy governed in December 2021 and 
onward. 

6 
 
standards may result in disciplinary action up to and including 
separation.” (ECF No. 60-3, at 106). 
Ms. Lopez-Duprey continued to wear black Skechers sneakers 
while working. (ECF No. 60-2 ¶ 30). She alleges that, sometime 
between June 2021 and March 2022, she “was demoted from a Star 
Trainer . . . to a server.” (ECF No. 1 ¶ 56). MGM disputes this 
characterization, positing that there was no Star Trainer position 
(as opposed to shift) from which Ms. Lopez-Duprey could be demoted 
and arguing that she did not substantiate this allegation with any 
evidence. (ECF No. 60-1, at 16). She further asserted that Ms. 
Johnson told her not to apply for a job in “High Limits,” the 
casino’s VIP area, because she would be required to wear high heels 
there. (ECF No. 1 ¶ 57; ECF No. 60-4, at 36). Ms. Lopez-Duprey 
did not submit an application to “High Limits.” (ECF No. 60-2 ¶ 
15). Finally, she alleges that “MGM [employees] also embarrassed 
her in front of coworkers and customers by chasing her around the 
casino to inquire about her accommodation requests, mocked her 
with insulting comments such as ‘you aren’t crippled,’ and required 
her to wear a uniform with holes in it subjecting her to unwanted 
sexual attention from customers.” (ECF Nos. 1 ¶ 122; 60-4, at 27–
28). MGM disputes these allegations. (ECF No. 60-1, at 17, 20). 
When asked about being required to wear a dress with holes in it, 
Ms. Lopez-Duprey confirmed that that “had nothing to do with [her] 

7 
 
shoes” and was instead an example of “Cami [Johnson] being mean.” 
(ECF No. 60-4, at 28). 
Management met with Ms. Lopez-Duprey on multiple occasions in 
early 2022. On January 26, 2022, Ms. Lopez-Duprey met with Ryan 
Mulholland, a Labor Relations Partner for MGM at the time, and 
Linda Martin, the Union President at the time. (ECF Nos. 60-2 ¶ 
33; 60-3, at 158). They discussed the shoe accommodation and Mr. 
Mulholland said he would look into it. (ECF Nos. 60-2 ¶ 33; 60-
3, at 158). Another meeting occurred on February 2, 2022, where 
Mr. Mulholland, Mr. Farruggio, Ms. Johnson, Ms. Martin, and Ms. 
Lopez-Duprey were present. (ECF Nos. 60-2 ¶ 34; 60-3, at 160). 
The meeting notes indicate that both Mr. Farruggio and Ms. Johnson 
apologized to Ms. Lopez-Duprey, that Mr. Mulholland offered that 
Ms. Johnson could help Ms. Lopez-Duprey pick out compliant shoes, 
and that they would give Ms. Lopez-Duprey the opportunity to have 
her doctor look at the shoes they select. (ECF No. 60-3, at 160–
61). On March 4, 2022, another meeting took place, this time 
between Ms. Lopez-Duprey, Mr. Mulholland, Ms. Johnson, and Heather 
Kerr, a bartender and Shop Steward for the Union. (ECF Nos. 60-2 
¶ 35; 60-3, at 167). The meeting notes reflect that Ms. Lopez-
Duprey said she had found shoes, but that she had not purchased 
them yet because they were somewhat expensive. (ECF Nos. 60-2 ¶ 
36; 60-3, at 167). The notes further state that Ms. Johnson asked 

8 
 
Ms. Lopez-Duprey “what timeline [Ms. Lopez-Duprey] needs to get 
the correct shoes,” to which Ms. Lopez-Duprey responded that she 
did not know. (ECF No. 60-3, at 168). Mr. Mulholland insisted on 
a “definitive timeline” and set the deadline as March 11, 2022. 
(ECF Nos. 60-2 ¶ 36; 60-3, at 168). The meeting notes state that 
Ms. Lopez-Duprey said “okay” to this deadline. (ECF No. 60-3, at 
168). Possibly referring to this meeting, Ms. Kerr recounts that 
Mr. Mulholland insisted on a deadline for Ms. Lopez-Duprey to 
submit new ADA accommodation paperwork, and that Ms. Lopez-Duprey 
would not agree to a deadline until she visited her doctor. (ECF 
No. 64-2, at 1). 
Ms. Lopez-Duprey continued to wear the black Skechers 
sneakers. She received a verbal warning for doing so on March 11, 
2022, followed by written discipline on March 15, 16, and 17. (ECF 
Nos. 60-2 ¶ 42; 60-3, at 147–50). On March 21, she was placed on 
Working During Investigation (“WDI”), a process that MGM uses to 
investigate policy infractions and which can result in 
termination. (ECF Nos. 60-2 ¶ 39; 60-3, at 173). Ms. Lopez-
Duprey stated that at the time she was placed on WDI, she already 
had a doctor’s appointment scheduled for April 22, 2022. (ECF No. 
60-4, at 40). 
On April 22, 2022, Ms. Lopez-Duprey attended her doctor’s 
appointment. Her doctor provided her with a note that said 

9 
 
“[p]atient has achilles tendonitis and equinus secondary to poor 
shoegear that has caused contracture of the patient’s achilles 
tendon. Please allow patient to wear previously approved 
[Skechers] like soft top shoes without a heel and/or similar style 
to them permanently due to patient’s foot condition.” (ECF No. 60-
3, at 181). Ms. Lopez-Duprey contends that she uploaded this note 
to Workday, MGM’s employee portal, “[a]s soon as [she] received 
it,” and provided copies of it to her managers, (ECF No. 60-4, at 
41), but MGM maintains that it did not see the note until July 18, 
2022, when Ms. Lopez-Duprey’s Union representative forwarded the 
note to Mr. Mulholland, (ECF Nos. 60-2 ¶¶ 44, 46; 60-3, at 180). 
On April 26, 2022, Ms. Lopez-Duprey commented on the 
disciplinary actions against her within Workday, stating: 
I am being forced to wear shoes against 
doctor[’]s orders per Cami Johnson and Joe 
Far[r]uggio who claim I don’t have an 
accommodation. Cami Johnson and Janae Madric 
deleted my A[DA] documents from the system. 
Cami Johnson began to harass and discipline me 
forcing me to wear shoes against my doctor[’]s 
orders that were previously approved by 
Janae[.] Then once I provided them proof I 
was still disciplined. 
 
(ECF No. 60-3, at 147–50). 
 
On May 12, 2022, Ms. Lopez-Duprey was terminated. (ECF Nos. 
60-2 ¶ 41; 60-3, at 177). In the termination letter, MGM explained 
the cause: 

10 
 
Separation for multiple violations of MGM 
National Harbor General Rules of Conduct 
including but not limited to: 
 
• GRC #40 — Violation of on-the-job rules, 
including rules, regulations and procedures of 
each department. 
• GRC #43 — Disregard or violation of company 
or departmental rules, procedures or 
polic[i]es. 
• Departmental appearance standards[.] 
 
Specifically, employee has been 
progressively disciplined for violating the 
company’s appearance standards. The final 
incident occurred on March 21, 2022, when the 
employee wore shoes which violated the 
appearance standards. 
 
(ECF Nos. 60-2 ¶ 41; 60-3, at 178). 
Ms. Lopez-Duprey filed a Charge of Discrimination with the 
Equal Employment Opportunity Commission (“EEOC”) and the Maryland 
Commission on Civil Rights on May 14, 2022. (ECF No. 1-1). On 
July 27, 2023, the EEOC provided Ms. Lopez-Duprey a Notice of her 
Right to Sue. (ECF No. 1-2). 
B. Procedural Background 
On October 18, 2023, Plaintiff Ms. Lopez-Duprey filed a 
complaint against Defendant MGM. (ECF No. 1). In the complaint, 
she asserts claims under the ADA and the Maryland Fair Employment 
Practices Act (“MFEPA”) for failure to accommodate her disability 
(Counts I & II), disability discrimination (Counts III & IV), and 
retaliation (Counts V & VI). Defendant filed an answer on December 
20, 2023. (ECF No. 12). 

11 
 
On May 9, 2024, Defendant filed a motion for summary judgment, 
arguing that Plaintiff should be judicially estopped from bringing 
any of her claims because she valued them at $0.00 in her pending 
bankruptcy petition. (ECF No. 24). Plaintiff filed a motion for 
partial summary judgment on Counts I and II, arguing that Defendant 
revoked her accommodation to wear Skechers sneakers in violation 
of the ADA and MFEPA. (ECF No. 26). Although some discovery had 
been conducted, the parties requested a stay of further discovery 
pending resolution of those motions. (ECF Nos. 30; 31). After 
reviewing the parties’ motions, the court denied both on April 9, 
2025. (ECF Nos. 52; 53). Defendant’s motion failed because 
Plaintiff had since amended the valuation to “unknown” and listed 
the lawsuit as exempt property anyway. (ECF No. 52, at 12). 
Plaintiff’s motion failed because “the evidence [wa]s conflicting 
as to what accommodation was permitted, whether the prior 
accommodation was altered, whether Plaintiff properly engaged in 
discussions, and when Defendant received the April 22, 2022 
doctor’s note, i.e., was it before July 22, 2022.” (Id. at 16). 
Thereafter, discovery resumed. 
On January 16, 2026, Defendant moved for summary judgment. 
(ECF No. 60). Plaintiff responded on February 13, (ECF No. 64), 
and Defendant replied on March 13, (ECF No. 65). 

12 
 
II. Standard of Review 
Summary judgment is appropriate under Fed.R.Civ.P. 56(a) when 
there is no genuine dispute as to any material fact, and the moving 
party is entitled to judgment as a matter of law. A fact is 
material if it “might affect the outcome of the suit under the 
governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 
313 (4
th Cir. 2013) (quoting Henry v. Purnell, 652 F.3d 524, 548 
(4th Cir. 2011) (Shedd, J., dissenting)). A dispute about a 
material fact is genuine “if the evidence is such that a reasonable 
jury could return a verdict for the nonmoving party.” Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 
When the burden of persuasion at trial would rest on the 
nonmoving party, the moving party may satisfy its initial burden 
of production by “pointing out to the district court” that “there 
is an absence of evidence to support the nonmoving party’s case.” 
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the 
moving party has met that burden, the nonmoving party must “go 
beyond the pleadings and . . . designate ‘specific facts showing 
that there is a genuine issue for trial.’” Id. at 324 (quoting 
former Fed.R.Civ.P. 56(e)). “A mere scintilla of proof . . . will 
not suffice to prevent summary judgment[.]” Peters v. Jenney, 327 
F.3d 307, 314 (4
th Cir. 2003). “If the evidence is merely 
colorable, or is not significantly probative, summary judgment may 

13 
 
be granted.” Anderson, 477 U.S. at 249–50 (citations omitted). 
At the same time, the court must construe the facts that are 
presented in the light most favorable to the party opposing the 
motion. Scott v. Harris, 550 U.S. 372, 378 (2007); Ballengee v. 
CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020) (citing News & 
Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 
576 (4th Cir. 2010)). The “judge’s function is not himself to 
weigh the evidence and determine the truth of the matter but to 
determine whether there is a genuine issue for trial.” Anderson, 
477 U.S. at 249. 
 At the summary judgment stage of employment cases, the unique 
burden-shifting framework articulated in McDonnell Douglas Corp. 
v. Green, 411 U.S. 792 (1973), sometimes applies. Here, McDonnell 
Douglas does not apply to the failure-to-accommodate claims, 
Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 n.2 (4
th Cir. 
2021), but it does apply to the disability discrimination and 
retaliation claims, Perry v. Comput. Scis. Corp., 429 F.App’x 218, 
219–20 (4
th Cir. 2011) (per curiam) (citing, inter alia, Laber v. 
Harvey, 438 F.3d 404, 432 (4 th Cir. 2006) (en banc)). Under the 
burden-shifting framework, the plaintiff bears the burden of 
producing evidence that establishes a prima facie case of 
discrimination or retaliation. Id. at 220 (citing McDonnell 
Douglas, 411 U.S. at 802). If the plaintiff successfully does so, 

14 
 
“the burden shifts to the defendant to provide a legitimate, 
nondiscriminatory [or nonretaliatory] reason for its action.” Id. 
(citing Laber, 438 F.3d at 432). If the defendant produces 
evidence of such a reason, the plaintiff “must show by a 
preponderance of the evidence that the proffered reason was a 
pretext for discrimination or retaliation.” Id. (citing Reeves v. 
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–48 (2000); 
Laber, 438 F.3d at 432). 
III. Analysis 
As noted, Plaintiff asserts claims of failure to accommodate, 
disability discrimination, and retaliation, each under the ADA and 
the MFEPA. The ADA mandates that no covered employer “shall 
discriminate against a qualified individual on the basis of 
disability in regard to job application procedures, the hiring, 
advancement, or discharge of employees, employee compensation, job 
training, and other terms, conditions, and privileges of 
employment.” 42 U.S.C. § 12112(a). Such discrimination can 
include failure to provide the employee a reasonable 
accommodation. See id. § 12112(b)(5)(A). The ADA further bars 
retaliation against an employee because that employee “has opposed 
any act or practice made unlawful” by the ADA. Id. § 12203(a). 
The reasonable accommodation and discrimination provisions of the 
MFEPA, Md. Code Ann., State Gov’t § 20-606(a)(1), (a)(4) (West 

15 
 
2026), are analogous to those of the ADA and are “evaluated under 
the same framework.” Corrigan v. Balt. Police Dep’t, No. 24-cv-
3497-ELH, 2026 WL 73800, at *18 (D.Md. Jan. 9, 2026) (quoting Teel 
v. Md. Nat. Treatment Sols., LLC, No. 23-cv-1694-RDB, 2024 WL 
1075421, at *4 (D.Md. Mar. 12, 2024)). The same is true for the 
retaliation provision of the MFEPA, Md. Code Ann., State Gov’t § 
20-606(f). Gagnon v. Bd. of Educ., 760 F.Supp.3d 359, 375 (D.Md. 
2024) (citing Haas v. Lockheed Martin Corp., 396 Md. 469, 482 & 
n.8 (2007); Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 391 
(4th Cir. 2001)). 
Defendant moves for summary judgment on all counts of the 
complaint. Because Defendant has shown that there is no genuine 
dispute of material fact and it is entitled to judgment as a matter 
of law on all but part of Counts III and IV, its motion for summary 
judgment will be granted in part and denied in part. 
A. Failure-to-Accommodate Claims (Counts I & II) 
“To show an employer’s failure to accommodate, the Plaintiff 
must prove: (1) that she had a disability within the statutory 
meaning; (2) that the employer knew of her disability; (3) that a 
reasonable accommodation would permit her to perform the essential 
functions of the position; and (4) that the employer refused to 
make the accommodation.” Perdue, 999 F.3d at 959 (citing Wilson 
v. Dollar Gen. Corp., 717 F.3d 337, 345 (4
th Cir. 2013)). Defendant 

16 
 
does not dispute that Plaintiff satisfies the first three elements. 
(See ECF No. 60 -1, at 6–14). She suffered from equinus and 
Achilles tendonitis, (ECF No. 60-3, at 122), Defendant knew of 
these disabilities at least as early as 2019, (id. at 118–22), and 
an accommodation permitting Plaintiff to “wear flats/good support 
shoes instead of heels” would allow her to perform the essential 
functions of a cocktail server, (ECF No. 60-2 ¶ 19). 
At issue is the fourth element, whether Defendant refused to 
provide Plaintiff a reasonable accommodation. The ADA offers a 
non-exhaustive list of reasonable accommodations, including “job 
restructuring, part-time or modified work schedules, reassignment 
to a vacant position, acquisition or modification of equipment or 
devices, appropriate adjustment or modifications of examinations, 
training materials or policies, the provision of qualified readers 
or interpreters, and other similar accommodations for individuals 
with disabilities.” 42 U.S.C. § 12111(9)(B). The United States 
Court of Appeals for the Fourth Circuit recently articulated a 
series of principles to guide the reasonable accommodation 
inquiry: 
[W]e have observed that “the range of 
reasonable accommodations is broad,” a truth 
reflected by the ADA’s text, which is 
“illustrative rather than exhaustive.” 
Elledge[ v. Lowe’s Home Ctrs., LLC], 979 F.3d 
[1004,] 1011 [(4
th Cir. 2020)]. We have 
further explained that “what counts as a 
reasonable accommodation is not an a priori 

17 
 
matter but one that is sensitive to the 
particular circumstances of the case.” Id. 
Finally, we have noted that “what will serve 
as a reasonable accommodation in a particular 
situation may not have a single solution, but 
rather, many possible solutions.” Id. For 
that reason, an employer is not necessarily 
required to “provid[e] the exact accommodation 
that the employee requested.” Reyazuddin v. 
Montgomery Cnty., 789 F.3d 407, 415 (4
th Cir. 
2015). To the contrary, where “an employee 
may be accommodated through a variety of 
measures, the employer, exercising sound 
judgment, possesses the ultimate discretion 
over these alternatives.” Elledge, 979 F.3d 
at 1011 (cleaned up). And as long as the 
employer’s chosen accommodation is 
reasonable, even if not perfect, our inquiry 
is at an end—“not even a well-intentioned 
court may substitute its own judgment for the 
employer’s choice.” Id. at 1012; see also 
Adams v. Anne Arundel Cnty. Pub. Schs., 789 
F.3d 422, 433 (4
th Cir. 2015) (stating that the 
ADA “requires a ‘reasonable’ accommodation, 
not a perfect one”). 
 
Tartaro-McGowan v. Inova Home Health, LLC, 91 F.4th 158, 166–67 
(4
th Cir. 2024) (footnote omitted); see also Perdue, 999 F.3d at 
960 n.3 (“[I]t is true that rejecting another reasonable 
accommodation would defeat her reasonable-accommodation claim.” 
(citation modified)). 
Moreover, “[i]mplicit in the fourth element is the ADA 
requirement that the employer and employee engage in an interactive 
process to identify a reasonable accommodation.” Haneke v. Mid-
Atl. Cap. Mgmt., 131 F.App’x 399, 400 (4th Cir. 2005) (citing 29 
C.F.R. § 1630.2(o)(3)). As the Fourth Circuit has observed: 

18 
 
No hard and fast rule will suffice, because 
neither party should be able to cause a 
breakdown in the process for the purpose of 
either avoiding or inflicting liability. 
Rather, courts should look for signs of 
failure to participate in good faith or 
failure by one of the parties to make 
reasonable efforts to help the other party 
determine what specific accommodations are 
necessary. A party that obstructs or delays 
the interactive process is not acting in good 
faith. A party that fails to communicate, by 
way of initiation or response, may also be 
acting in bad faith. In essence, courts 
should attempt to isolate the cause of the 
breakdown and then assign responsibility. 
 
Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F.App’x 314, 
323 (4
th Cir. 2011) (unpublished table decision) (quoting Beck v. 
Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135–36 (7 th Cir. 
1996)). “Ultimately, ‘an employer cannot be held liable . . . 
where it is the employee who refuses to engage in, or causes the 
breakdown of, the requisite interactive process.’” Stewart v. 
Ross, Nos. 16-cv-213 & 18-cv-1369, 2020 WL 1907471, at *14 (E.D.Va. 
Apr. 17, 2020) (quoting Maubach v. City of Fairfax, No. 17-cv-921, 
2018 WL 2018552, at *5 (E.D.Va. Apr. 30, 2018)) (citing Allen v. 
City of Raleigh, 140 F.Supp.3d 470, 490 (E.D.N.C. 2015)). 
 Defendant argues that it granted Plaintiff the sole 
accommodation she requested, it was not required to permit her 
preferred application of that accommodation (the Skechers), and 
Plaintiff broke down the interactive process. The burden is thus 
on Plaintiff to “designate ‘specific facts showing that there is 

19 
 
a genuine issue for trial’” on the fourth element. Celotex, 477 
U.S. at 324 (quoting former Fed.R.Civ.P. 56(e)). Plaintiff 
attempts to raise genuine disputes of material fact in response to 
each of Defendant’s arguments, but to no avail. Defendant thus 
prevails on the failure-to-accommodate claims. 
 The first two arguments are related and will be considered 
together. Plaintiff offers three purportedly genuine disputes of 
material fact: (1) whether sneakers, including her Skechers 
sneakers, were included in the 2019 accommodation; (2) whether 
Defendant narrowed or revoked the 2019 accommodation in December 
2021 to exclude sneakers; and (3) whether Defendant received 
Plaintiff’s April 2022 doctor’s note specifically identifying 
sneakers as an accommodation before terminating Plaintiff.
4 (ECF 
No. 64, at 8–9). It is true that the parties dispute whether the 
2019 accommodation permitting Plaintiff to “wear flats/good 
support shoes instead of heels” included sneakers, (ECF Nos. 60-2 
¶ 19; 64, at 5), and thus whether the December 2021 email 
prohibiting Plaintiff from wearing a “sneaker-like shoe” operated 
 
4 Plaintiff indicates that the timing of receipt of the 
doctor’s note raises a genuine dispute regarding notice, the second 
element of a failure-to-accommodate claim. (ECF No. 64, at 9). 
The notice requirement, however, pertains to a plaintiff’s 
disability, not her requested accommodation. Defendant was 
undisputedly on notice of Plaintiff’s disability since 2019. 
Therefore, the doctor’s note raises no genuine dispute regarding 
notice. 
 

20 
 
to narrow her accommodation, (ECF Nos. 60-2 ¶¶ 24, 26; 64, at 5).5 
But the first dispute is not material, and the second is not a 
dispute at all. Even assuming that the 2019 accommodation did 
permit Plaintiff to wear sneakers, which she undisputedly wore for 
the following two years, (see ECF No. 60-2 ¶¶ 21–23), Defendant 
was not permanently locked into that particular application of the 
accommodation it had granted. “To the extent [Plaintiff could] be 
accommodated through a variety of measures, [Defendant], 
exercising sound judgment, possesse[d] ‘ultimate discretion’ over 
these alternatives.” Elledge, 979 F.3d at 1011 (citing 29 C.F.R. 
app. § 1630); cf. Bourke v. Collins, 142 F.4th 918, 923 (7
th Cir. 
2025) (rejecting the plaintiff-appellant’s proposed rule that 
“[a]ny time an employer alters an accommodation, for any reason, 
the employer must show an undue hardship” because it “would strip 
employers of their power over accommodations” (citation 
modified)). Accordingly, whether the 2019 accommodation included 
sneakers has no effect on “the outcome of the suit” after Defendant 
 
5 Although Plaintiff contends that the December 2021 email 
may have revoked her accommodation, nothing in the record supports 
that view. Her 2019 accommodation was not to wear sneakers 
specifically, but rather to wear flat, supportive shoes. (ECF No. 
60-3, at 136). There was no sneaker-specific accommodation to 
revoke. And the December 2021 email continued to permit Plaintiff 
to wear “flat dress shoes” rather than heels, so her accommodation 
was not revoked wholesale. (Id. at 138). 

21 
 
clarified and/or narrowed it in December 2021 and is thus 
immaterial. Libertarian Party, 718 F.3d at 313. 
Plaintiff’s grievance with the December 2021 email raises not 
a factual but rather a legal question: whether Defendant was 
permitted to exclude sneakers expressly from Plaintiff’s 
accommodation. Defendant represents that the new management hired 
for the Beverage Department wished to enforce higher professional 
standards. (ECF No. 60-2 ¶¶ 26–27). It was entitled to remove 
sneakers from Plaintiff’s accommodation provided that an 
alternative form of footwear remained an effective accommodation. 
Plaintiff, however, has not come forward with any evidence that 
the “flat dress shoe” accommodation was ineffective. Instead, she 
almost exclusively relies on statements from the undersigned’s 
prior summary judgment opinion in this case, with no heed to the 
fact that the burdens have flipped and the record has changed. 
That is not enough. 
Finally, the dispute about when Defendant received the April 
22, 2022, doctor’s note is immaterial. Even if Defendant received 
the doctor’s note before it terminated Plaintiff, it indisputably 
received it over a month after Plaintiff accumulated the numerous 
disciplinary actions that supported her termination. Therefore, 

22 
 
Plaintiff’s termination would be justified regardless of when 
Defendant received the doctor’s note.6 
In short, Plaintiff offers little more than a complaint that 
Defendant did not continue to “provid[e] the exact accommodation 
that [she] requested.” Reyazuddin, 789 F.3d at 415. Without 
evidence that the “flat dress shoe” accommodation was ineffective, 
the court is left to conclude that Plaintiff “reject[ed] another 
reasonable accommodation,” which “defeat[s] her reasonable-
accommodation claim.” Perdue, 999 F.3d at 960 n.3. 
Plaintiff tries one other tack to save her failure-to-
accommodate claim, asserting that there is a genuine dispute of 
material fact about whether and how the interactive process broke 
down. Given that “the interactive process is an ongoing process 
that often continues even after an initial accommodation has been 
granted,” Stewart, 2020 WL 1907471, at *14 (citing, inter alia, 
Hannah P. v. Coats, 916 F.3d 327, 337 (4th Cir. 2019)), it may well 
be that when Defendant notified Plaintiff she could no longer wear 
sneakers, a requirement to engage anew in the interactive process 
and agree upon a footwear solution was triggered, cf. Brown v. 
 
6 The doctor’s note itself does not require that Defendant 
permit Plaintiff to wear sneakers. The note requests that 
Plaintiff be allowed to wear “ [Skechers] like soft top shoes 
without a heel and/or similar style to them.” (ECF No. 60-3, at 
181). It is quite possible that a soft-top, professional shoe 
exists that would be amenable to Defendant. Plaintiff offers no 
evidence otherwise. 

23 
 
Smith, 21 F.Supp.3d 974, 982 (S.D.Ind. 2014) (“[T]he City’s 
obligation under the [ADA] was to work with Mr. Brown to adjust 
the existing accommodation in an attempt to correct [its] problems, 
not withdraw the accommodation completely to his detriment.” 
(citation modified)). Defendant did re-engage Plaintiff in the 
interactive process, holding three meetings with her between 
January and March 2022 and repeatedly delaying her compliance 
deadline. Plaintiff contends that “[t]hose meetings do not 
establish good faith as a matter of law; they underscore a factual 
dispute about whether Defendant sought a workable solution or 
simply used ‘shoe standards’ as a disciplinarian tool” to break 
down the interactive process. (ECF No. 64, at 9). 
Plaintiff fails to dispute key facts regarding the 2022 
meetings. She does not dispute that at the February 2022 meeting, 
Mr. Mulholland offered that Ms. Johnson could help Plaintiff pick 
out compliant shoes, and that they would give her the opportunity 
to have her doctor look at the shoes they select. (ECF No. 60-3, 
at 160–61). She also does not directly dispute that at the March 
4, 2022, meeting, she indicated that she had found compliant shoes 
and agreed to a March 11 deadline to have her doctor approve them. 
(Id. at 167–68). The most she musters is a possibly conflicting 
assertion in a declaration by Ms. Kerr, the Shop Steward who 
accompanied Plaintiff to the meeting. But Plaintiff does not 

24 
 
specifically refer to this declaration in her argument regarding 
the interactive process. Instead, in the final line of her 
argument, she asks the court to take notice of the five exhibits 
she attaches, one of which is Ms. Kerr’s declaration, “as relevant 
material exhibits which dispute Defendant’s version of events and 
give rise to disputes of material facts.” (ECF No. 64, at 19 & 
n.2). It is, however, Plaintiff’s burden to come forward with 
specific facts, not the court’s burden to sift through her exhibits 
to find them. 
Nonetheless, having found this assertion in Ms. Kerr’s 
declaration, the court will address it. She states, presumably in 
reference to the March 4 meeting, that “Mr. Mulholland required 
[Plaintiff] to return to her doctor and get new paperwork to re-
establish her need for an ADA accommodation. Mr. Mulholland tried 
to force [Plaintiff] to obtain paperwork by certain dates and she 
explained she was unable to agree to those deadlines until she 
visited her doctor.” (ECF No. 64-2, at 1). Although she does not 
directly contradict Defendant’s account of the meeting, her 
account raises the possibility that Mr. Mulholland asked Plaintiff 
to go to the doctor to complete new paperwork to support her 
wearing of sneakers, rather than ask her to go to the doctor to 
get his approval of the compliant shoes she had found. Even taking 
Ms. Kerr’s account as accurate, it does not raise a material 

25 
 
dispute. Plaintiff’s insistence that she be permitted to wear 
sneakers after Defendant forbade them under her accommodation 
effectively rendered her requested accommodation one for sneakers 
rather than any flat, supportive shoe. Defendant was thus entitled 
to request “medical documentation that . . . ‘substantiates why 
the requested reasonable accommodation is needed.’” Teel, 2024 WL 
1075421, at *5 (quoting Rowlett v. Balt. City Police Dep’t, No. 
21-cv-1205-BPG, 2023 WL 2664232, at *9 (D.Md. Mar. 28, 2023)). 
Defendant was further entitled to impose a deadline on the 
submission of that documentation, and Plaintiff’s “failure to 
provide such documentation [by that deadline] constitutes a 
failure to participate in th[e] investigatory process that bars an 
employer’s liability for failure to accommodate.” Id. (quoting 
Rice v. HAR-CO Credit Union, No. 13-cv-3368-RDB, 2014 WL 4686669, 
at *4 (D.Md. Sep. 17, 2014)) (citing Ahmed v. Salvation Army, No. 
12-cv-707-CCB, 2012 WL 6761596, at *9 (D.Md. Dec. 28, 2012)). Ms. 
Kerr does not identify the date of any deadline that differs from 
the March 11 deadline identified in Defendant’s exhibits. Thus, 
Plaintiff had a week to get additional documentation from her 
doctor supporting her sneakers accommodation (after nearly three 
months of being on notice of the prohibition on sneakers) and she 
failed to do so until April 22, 2022, at the earliest. Plaintiff 
is responsible for the breakdown of the interactive process. 

26 
 
In further support of the conclusion that Plaintiff broke 
down the interactive process, there is no evidence in the record 
that once Defendant started disciplining her, she requested 
additional time to see her doctor or notified Defendant that she 
had a doctor’s appointment scheduled for April 22. In her 
deposition, Plaintiff stated that “[Mr. Mulholland] was aware that 
[she] was to see [her] physician first,” and she “didn’t change 
[her] shoes” while being disciplined “because [she] wasn’t going 
to be forced or bullied to do all of this.” (ECF No. 60-4, at 
31). But Mr. Mulholland had set a deadline, too, which Plaintiff 
had missed and evidently failed to explain. “A party that fails 
to communicate, by way of initiation or response, may also be 
acting in bad faith.” Crabill, 423 F.App’x at 323 (quoting Beck, 
75 F.3d at 1135). Plaintiff’s failure to communicate once 
Defendant began disciplining her only exacerbated the breakdown of 
the interactive process. 
Because Plaintiff has failed to generate a genuine dispute of 
material fact as to whether Defendant refused to accommodate her, 
the “inquiry is at an end.” Tartaro-McGowan, 91 F.4th at 167. 
Defendant will be granted summary judgment on the failure-to-
accommodate claims in Counts I and II. 

27 
 
B. Disability Discrimination Claims (Counts III & IV) 
To establish a prima facie case of disability discrimination, 
the plaintiff must prove: “(1) membership in a protected class; 
(2) satisfactory job performance; (3) adverse employment action; 
and (4) different treatment from similarly situated employees 
outside the protected class.” Thomas v. City of Annapolis, 851 
F.App’x 341, 345 (4
th Cir. 2021) (citing Coleman v. Md. Ct. of 
Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub nom., Coleman 
v. Ct. of Appeals of Md., 566 U.S. 30 (2012); Haulbrook v. Michelin 
N. Am., Inc.,252 F.3d 696, 702 (4th Cir. 2001)). On an employer’s 
motion for summary judgment, whether the plaintiff employee can 
make out a prima facie case need not be decided where she “suffered 
an adverse employment action and [the] employer has asserted a 
legitimate, non-discriminatory reason for the decision.” EEOC v. 
Mfrs. & Traders Tr. Co., 429 F.Supp.3d 89, 121 (D.Md. 2019) 
(quoting Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. 
Cir. 2008) (Kavanaugh, J.)). When those conditions are met, the 
court need only resolve “one central question,” whether the 
plaintiff employee has “produced sufficient evidence for a 
reasonable jury to find” that the asserted reason is pretextual 
and “that the employer intentionally discriminated against the 
employee on the basis of [a protected classification].” Id. 
(alteration in original) (quoting Brady, 520 F.3d at 494). 

28 
 
In her complaint, Plaintiff alleges six adverse actions: 
being mocked and screamed at by her supervisors regarding her 
disability and accommodation requests, demotion, denial of 
promotion, disciplinary actions for wearing sneakers, placement on 
WDI, and termination. (ECF No. 1 ¶¶ 95–99). Regarding the first 
three alleged adverse actions, Defendant disputes that they 
occurred or that they rise to the level of an adverse action and 
attacks Plaintiff’s prima facie case. (ECF No. 60-1, at 15–18). 
Accordingly, the inquiry for these claims begins with Plaintiff’s 
prima facie case. As for the latter three adverse actions, 
Defendant does not dispute that they occurred, but offers a 
legitimate, nondiscriminatory reason for them, namely that 
Plaintiff “refused to comply with [Defendant’s] Appearance 
Standards Policy despite numerous opportunities to do so.” (Id. 
at 19). Therefore, the analysis of these claims is limited to 
whether Plaintiff has produced sufficient evidence that 
Defendant’s asserted reason is pretextual. The latter, undisputed 
adverse actions will be addressed first. 
Regarding the undisputed adverse actions of discipline, 
placement on WDI, and termination, Plaintiff fails to show by a 
preponderance of the evidence that Defendant’s legitimate, 
nondiscriminatory reason was pretextual. To show pretext, 
Plaintiff relies on generalizations like “shifting enforcement, 

29 
 
discretionary approval practices, and disputed managerial 
authorization,” (ECF No. 64, at 17), the supposed departure of 
“Defendant’s conduct . . . from its own stated policies,” (id. at 
8), as well as Plaintiff’s “work history, the existence of a long-
standing accommodation, and the timing and context of disciplinary 
actions tied to footwear compliance,” (id. at 16). Plaintiff’s 
pretext arguments presuppose a premise already debunked above, 
namely that Defendant was not entitled to adjust Plaintiff’s 
accommodation. Plaintiff has offered no evidence that the 
accommodation Defendant provided in December 2021 was incompatible 
with the Appearance Standards Policy. Thus, there is no evidence 
that Defendant disciplined Plaintiff, placed her on WDI, or 
terminated her because of her disability rather than because she 
failed to conform her accommodated footwear to the Appearance 
Standards Policy. Her disability discrimination claim as to these 
adverse actions therefore fails on the third step of McDonnell 
Douglas. 
The disputed adverse actions require greater discussion. 
Beginning with the alleged mocking and screaming, Defendant argues 
that Plaintiff fails to substantiate these allegations with any 
evidence, and that in any event, Plaintiff does not articulate how 
the mocking and screaming rise to the level of adverse action. As 
noted in the previous section, Plaintiff gestures broadly at five 

30 
 
exhibits to raise disputes of material fact, rather than point to 
specific facts within those exhibits. Even so, upon reviewing the 
record, two of the declarations Plaintiff attaches contain pieces 
of evidence that stand out as relevant. Ms. Kerr states in her 
declaration that “Assistant Manager Johnson would chase 
[Plaintiff] . . . around the casino floor and yell at [her] about 
[her] accommodations in front of coworkers and customers.” (ECF 
No. 64-2, at 1). Jessica Capers, who was a cocktail server at MGM 
at the same time as Plaintiff, says in her declaration that at the 
potluck, she “heard Manager Johnson and Director Farruggio tell 
[Plaintiff], ‘you’re not crippled.’” (Id. at 6). Therefore, 
Plaintiff does attempt to substantiate her allegations with some 
evidence. Still, she entirely fails to explain how this conduct 
by her supervisors affected a term, condition, or privilege of her 
employment, 42 U.S.C. § 12112(a), such as by arguing that the 
conduct was so severe or pervasive that it constituted harassment, 
Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4
th Cir. 2001) (citing 
Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999)). As a result, 
Plaintiff has failed to show the materiality of the disputed facts. 
Her prima facie case fails as to this alleged adverse action. 
Next is the demotion claim. Defendant contends that Plaintiff 
cannot have been demoted from Star Trainer because Star Trainer is 
a type of shift rather than a position. (ECF No. 60-1, at 16). 

31 
 
Plaintiff does not dispute that Star Trainer is a shift rather 
than a position, (ECF No. 60-4, at 3–4), but appears to believe 
that lack of access to Star Trainer shifts, which provided double 
pay, did constitute a demotion. Because the ADA bars 
discrimination “in regard to . . . employee compensation,” 42 
U.S.C. § 12112(a), Plaintiff is likely correct that depriving her 
of Star Trainer shifts for which she would otherwise be eligible 
can constitute an adverse action.
7 The problem is that Plaintiff 
has not come forward with any record evidence that Defendant 
stopped giving her available Star Trainer shifts. Without any 
facts or evidence that Defendant stopped giving Plaintiff Star 
Trainer shifts, when Defendant did so, and why Defendant did so, 
Plaintiff cannot establish that she suffered an adverse action.
8 
Her prima facie case fails for this alleged adverse action. 
 
7 Plaintiff’s testimony is somewhat unclear as to how Star 
Trainer shifts affected cocktail server compensation in practice. 
Although base pay doubled under Star Trainer shifts, Plaintiff 
suggested in her deposition that the server would have to split 
her tips with the trainee. (ECF No. 60-4, at 4). As a result, 
Defendant was “pretty much begging other people” to sign up for 
Star Trainer shifts “because nobody wanted to be a [S]tar [T]rainer 
anymore.” (Id.). 
 
8 Plaintiff also does not identify any similarly situated, 
non-disabled cocktail server who continued to receive Star Trainer 
shifts, as the fourth element of her prima facie case would 
typically require. She contends, however, that “[c]omparator 
evidence is not required in every ADA discrimination case.” (ECF 
No. 64, at 17). While that is true, she still must “present 
evidence that reasonably creates an inference of an unlawfully 
discriminatory motive.” Noonan v. Consolidated Shoe Co., 84 F.4th 

32 
 
As to the denial of promotion, however, Plaintiff’s 
disability discrimination claim survives. A failure-to-promote 
claim is a particular type of discrimination claim with somewhat 
differently phrased elements than those of a standard disability 
discrimination claim. To prove failure to promote, a plaintiff 
must establish: “‘(1) she is a member of a protected group, (2) 
there was a specific position for which she applied, (3) she was 
qualified for that position, and (4) [her employer] rejected her 
application under circumstances that give rise to an inference’ of 
liability.” Walton v. Harker, 33 F.4th 165, 176 (4
th Cir. 2022) 
(alteration in original) (quoting Williams v. Giant Food Inc., 370 
F.3d 423, 430 & n.5 (4 th Cir. 2004)) (citing Evans v. Techs. 
Applications & Serv. Co., 80 F.3d 954, 959–64 (4 th Cir. 1996)). 
Plaintiff does not bring a standalone failure-to-promote claim; 
instead, she attempts to bring it under the general disability 
discrimination rubric. (See ECF No. 1 ¶¶ 98, 111). In any event, 
the “ultimate question [is] discrimination vel non,” Merritt v. 
Old Dominion Freight Line, Inc., 601 F.3d 289, 294–95 (4 th Cir. 
2010) (quoting Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991)), 
and the prima facie case simply serves to help the court assess 
 
566, 573 (4th Cir. 2023). Because Plaintiff fails to substantiate 
if and when she stopped receiving Star Trainer shifts, she 
necessarily fails to offer other evidence that the withdrawal of 
Star Trainer shifts was discriminatory. 

33 
 
whether there is “enough evidence to support an inference of 
discriminatory motive.” Ames v. Ohio Dep’t of Youth Servs., 605 
U.S. 303, 308 (2025) (citing McDonnell Douglas, 411 U.S. at 802). 
That general benchmark thus guides the analysis below. 
Plaintiff alleges, and asserts in her deposition testimony, 
that Ms. Johnson told her not to apply for an open position in the 
High Limits area because she would need to wear high heels there. 
(ECF Nos. 1 ¶ 57; 60-4, at 37). Defendant makes four arguments in 
its motion for summary judgment: (1) Plaintiff did not actually 
apply for the High Limits position, (2) she relies only on her 
self-serving testimony, (3) she does not explain why she believed 
her accommodation would not travel with her, and (4) she does not 
identify any similarly situated, non-disabled cocktail server who 
was either promoted or encouraged to apply. (ECF No. 60-1, at 16–
18). Plaintiff responds with no evidence other than Ms. Casper’s 
declaration that Ms. Casper applied for a High Limits position but 
was told she could not be promoted because of her disability and 
accommodation. (ECF No. 64-2, at 6). 
Despite Plaintiff’s thin response, Defendant’s arguments are 
unpersuasive. First, even though Plaintiff did not apply to the 
High Limits position, “a plaintiff who has failed to apply for a 
job may still carry his burden of proof if he can demonstrate that 
‘he would have applied but for accurate knowledge of an employer’s 

34 
 
discrimination and that he would have been discriminatorily 
rejected had he actually applied.’” Brown v. McLean, 159 F.3d 
898, 902 (4 th Cir. 1998) (quoting Pinchback v. Armistead Homes 
Corp., 907 F.2d 1447, 1451 (4th Cir. 1990)). Plaintiff explained 
in her deposition: “I was told not to apply because, again, I 
couldn’t because I had to wear high heels. So why would I apply 
when you’re already telling me, ‘Don’t do it because you’re not 
going to get selected. Somebody under you will.’” (ECF No. 60-
4, at 37). Plaintiff’s testimony suggests that she would have 
applied but for Ms. Johnson’s potentially discriminatory 
dissuasion, and that it is possible she would have been 
discriminatorily passed over for someone with inferior 
qualifications. Second, because Plaintiff was a party to the 
conversation with Ms. Johnson, her self-serving testimony about 
what Ms. Johnson said suffices to create a genuine dispute of 
material fact. Parker v. Homesite Ins. Co., No. 21-cv-2906-JRR, 
2025 WL 254550, at *5 (D.Md. Jan. 21, 2025) (“[T]estimony that is 
based on personal knowledge or firsthand experience can constitute 
evidence of disputed material facts, even if it is uncorroborated 
and self-serving.” (quoting Evans v. Schultz, No. 22-cv-3073-ELH, 
2024 WL 3568569, at *6 (D.Md. July 29, 2024) (citing Harrell v. 
DeLuca, 97 F.4th 180, 187 (4
th Cir. 2024)). 

35 
 
The third and fourth arguments likewise falter. Whether it 
was reasonable to believe that Plaintiff’s accommodation would not 
travel with her, and whether there is evidence of discriminatory 
motive via comparators or otherwise, Noonan v. Consolidated Shoe 
Co., 84 F.4th 566, 573 (4
th Cir. 2023), depend on whether Ms. 
Johnson knew at the time she told Plaintiff not to apply that 
Plaintiff had a footwear accommodation. This fact is not clear 
from the record. Plaintiff stated in her deposition that at the 
December 2021 potluck, Ms. Johnson represented that she did not 
know Plaintiff had an accommodation, even though Ms. Johnson had 
been with MGM “forever.” (ECF No. 60-4, at 16). Plaintiff does 
not specify whether Ms. Johnson told Plaintiff not to apply to the 
High Limits position before or after the December 2021 potluck. 
It is possible, then, that Ms. Johnson told Plaintiff before 
December 2021 not to apply, and that she did so without any 
knowledge that Plaintiff had an accommodation. Because Plaintiff 
is the nonmoving party, however, the court will draw the inference 
in her favor that Ms. Johnson told her not to apply at a time when 
Ms. Johnson knew Plaintiff had an accommodation. Ballengee, 968 
F.3d at 349 (citing News & Observer Publ’g Co., 597 F.3d at 576). 
Therefore, it is reasonable to infer from Ms. Johnson’s statement 

36 
 
that Plaintiff’s accommodation would not travel with her. 9 And 
Ms. Johnson’s statement coupled with her inferred knowledge 
supplies evidence of discriminatory motive. Because Defendant 
offers no legitimate, nondiscriminatory reason for Ms. Johnson’s 
statement, it does not rebut the “presumption of illegal 
discrimination” that Plaintiff’s prima facie case creates. See 
Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4
th Cir. 2011). 
Plaintiff’s disability discrimination counts survive as to the 
failure-to-promote component. 
Defendant’s motion for summary judgment will be denied in 
part as to the failure-to-promote component of Counts III and IV 
and granted in part as to the remainder of Counts III and IV. 
C. Retaliation Claims (Counts V & VI) 
To establish a prima facie case of retaliation under the ADA 
(and the MFEPA), a plaintiff must show: “(1) she engaged in a 
protected activity; (2) her employer acted adversely against her; 
and (3) her protected activity was causally connected to her 
employer’s adverse action.” Smith v. CSRA, 12 F.4th 396, 416 (4
th 
Cir. 2021) (citing Rhoads, 257 F.3d at 392). A plaintiff can show 
causation through relevant facts, temporal proximity alone if the 
 
9 Ms. Capers’ declaration specifically states that she was 
told by Ms. Johnson that she could not be promoted to High Limits 
because of her disability and ADA accommodation. (ECF No. 64-2, 
at 6). 

37 
 
adverse action is “very close” in time to the protected activity, 
or otherwise temporal proximity in conjunction with relevant 
facts. Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 123, 127 
(4th Cir. 2021) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 
U.S. 268, 273–74 (2001)). The McDonnell Douglas burden shifting 
proceeds as it does for disability discrimination claims. See 
Smith, 12 F.4th at 416. 
Plaintiff alleges the following as protected activities: 
“complain[ing] of disability discrimination, failure to 
accommodate, and retaliation to her supervisors at MGM, Human 
Resources, employee relations, and her union representatives,” and 
“requesting a reasonable accommodation under the ADA.” (ECF No. 
1 ¶¶ 117–19). She alleges all the same adverse actions as in her 
disability discrimination claims, plus the allegation that 
Defendant “required her to wear a uniform with holes in it[,] 
subjecting her to unwanted sexual attention from customers.” (Id. 
¶¶ 120–22). Defendant moves for summary judgment on the basis 
that Plaintiff has failed to allege any adverse action causally 
connected to Plaintiff’s protected activity. (ECF No. 60-1, at 
19–21). 
None of Plaintiff’s retaliation claims may proceed; some fail 
on the prima facie case, whereas others fail on the burden to show 
pretext. Beginning with the adverse action element of the prima 

38 
 
facie case, Plaintiff does not explain how her supervisors’ alleged 
mocking of her rises to the level of an adverse action in the 
retaliation context, nor does she offer evidence of demotion. At 
the causation element, Plaintiff’s failure-to-promote and 
tattered-dress claims falter. Plaintiff does not situate the 
failure to promote in the timeline of events in a way that permits 
assessment of temporal proximity, nor are there any other facts 
specifically tying the failure to promote to Plaintiff’s protected 
activity. And although the parties seem to dispute whether 
Plaintiff was required to wear a dress that developed holes in it, 
(ECF Nos. 60-1, at 20; 60-4, at 28), Plaintiff herself affirmed in 
her deposition that the purported requirement that she wear a dress 
with holes in it “had nothing to do [with] her shoes” and rather 
was “just [Ms. Johnson] being mean,” (ECF No. 60-4, at 28). 
Finally, concerning the disciplinary actions, placement on WDI, 
and termination, Defendant offers the legitimate, 
nondiscriminatory reason that Plaintiff refused to conform her 
footwear to the Appearance Standards Policy. (ECF No. 60-1, at 
21). As with the disability discrimination claims, Plaintiff does 
not make any showing that Defendant’s proffered reason is 
pretextual. 
Defendant will be granted summary judgment on Plaintiff’s 
retaliation claims. 

39 
 
IV. Conclusion 
For the foregoing reasons, MGM’s motion for summary judgment 
will be granted in part and denied in part. A separate order will 
follow. 
 
 /s/ 
 DEBORAH K. CHASANOW 
 United States District Judge 

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