Fourth Circuit Revives Orkin Accommodation Suit, Bars ADA Wrongful Termination Claim
The U.S. Court of Appeals for the Fourth Circuit held on August 5 that an employer may not park a disabled worker on indefinite unpaid leave rather than reassign him to an available position he could perform, vacating summary judgment for Orkin, LLC on a former pest control technician’s failure-to-accommodate claim. The panel affirmed dismissal of his ADA wrongful termination claim, finding he never exhausted it administratively before suing.
Ibrahima Dieng worked as a pest control technician out of Orkin’s Gaithersburg, Maryland branch until February 2016, when he slipped servicing a building and injured his right knee cap, according to the published opinion in Dieng v. Orkin, LLC. That July his physician cleared him for less physically demanding work with a twenty-pound lifting limit. On August 18, 2016, Dieng texted his branch manager, Blake Hunter, asking whether any light-duty position had opened up. Hunter never answered, and in a later exchange said only that he would ask Orkin’s risk department to reach out; he could not recall at deposition whether it did.
Dieng filed a charge with the Maryland Commission on Civil Rights on March 13, 2017, cross-filed with the Equal Employment Opportunity Commission, alleging a refusal to accommodate his disability. He stayed on unpaid leave sixteen months, resigned June 7, 2017, and sued in 2021. In a February 4, 2025 memorandum opinion, Judge Lydia Kay Griggsby granted Orkin summary judgment on both claims, concluding Dieng could not perform the essential duties of his technician job, that unpaid leave was itself a reasonable accommodation, and that he resigned voluntarily.
The Job He Held Versus the Job He Wanted
Judge Berner, joined by Judge Gregory, wrote that the district court asked the wrong question. Where a disabled employee seeks reassignment, the panel held, he must show he can perform the essential functions of the position he desires, not the one he holds. That Dieng could no longer do all the work of a pest control technician was beside the point.
The panel found Dieng cleared that bar for Orkin’s customer service roles, citing Hunter’s undisputed testimony that he could think of no reason Dieng would have been unsuitable. Whether Dieng could have handled a sales representative position stayed genuinely disputed, since that job’s physical demands varied and his sworn declaration rested on firsthand experience.
Professional Purgatory and an Interactive Process That Never Started
An accommodation an employer selects must actually be effective, the panel wrote, citing the Supreme Court’s decision in US Airways, Inc. v. Barnett. Orkin said it kept Dieng on leave anticipating his return to his old job, which the panel called ineffective and therefore no accommodation. Orkin instead held him in “professional purgatory,” the opinion states, not terminated but not working. The panel distinguished Hannah v. United Parcel Service, Inc., where unpaid leave was reasonable because that driver’s disability was temporary and he was expected back in the same position.
A jury could also conclude Orkin never engaged in the interactive process at all, the panel wrote. No one at the company discussed Dieng’s limitations with him, contacted his physicians, or answered his counsel’s letters, even as it filled customer service and sales vacancies in the region. EEOC enforcement guidance treats reassignment as an accommodation of last resort, and the district court read that principle to relieve Orkin of any reassignment duty. The panel said that misapprehended its precedent: once an employee can no longer hold his current job, the employer must determine whether he can work in a different one without undue burden, a duty rooted in the definition of discrimination at 42 U.S.C. § 12112. It vacated summary judgment on that claim and remanded.
Why the Wrongful Termination Claim Failed
The panel never reached whether Dieng had produced enough evidence of constructive discharge, though it noted lengthy unpaid leave can support such a claim, and affirmed on exhaustion instead. Dieng’s original charge alleged only failure to accommodate and said the discriminatory acts ended in December 2016, months before he resigned; he amended it weeks before resigning. Neither version could allege unlawful termination, the panel wrote, and a discharge claim fell outside the scope of an investigation that could reasonably have been expected to follow the accommodation charge.
Quattlebaum’s Narrower Remand
Judge Quattlebaum, concurring in part and dissenting in part, agreed Orkin was entitled to summary judgment on the wrongful termination claim but would have affirmed as to the sales position, pointing to a job description classifying it as heavy work and manager testimony that it matched the technician’s job. He would remand only on customer service vacancies filled in Lorton, Manassas and Ashburn, Virginia in November and December 2016, adding that even there the district court should weigh circuit precedent calling reassignment “a disfavored accommodation that employers are generally under no obligation to offer.”
