Perdue v. Alabama Department of Public Safety et al (MAG+)
ORDER directing that: (1) the 67 REPORT AND RECOMMENDATION of the Magistrate Judge is ADOPTED; (2) defendants' 53 Motion for Summary Judgment is GRANTED, as further set out in order. Signed by Chief Judge William Keith Watkins on 8/28/13. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
ALABAMA DEPARTMENT OF
CASE NO. 2:11-CV-1005-WKW
On August 5, 2013, the Magistrate Judge filed a Report and Recommendation
(Doc. # 67) recommending that the court grant Defendant’s motion for summary
judgment (Doc. # 53). Plaintiff timely objected. (Docs. # 69–70.) The court reviews
de novo the portion of the Recommendation to which the objection applies. 28 U.S.C.
§ 636(b)(1). After careful and de novo review of the parties’ arguments (see Docs. #
53–57, 69–70) and the relevant law, the Recommendation is due to be adopted.
The Magistrate Judge found that: (1) Plaintiff did not establish a prima facie
claim of gender discrimination under Title VII, 42 U.S.C. § 2000e-2(a)(1); (2) the
Eleventh Amendment barred Plaintiff’s claim under the Americans with Disabilities
Act, 42 U.S.C. § 12112(a); (3) Plaintiff did not establish that the requested
accommodations were reasonable and related to a cognizable disability, as required
for a claim under the Rehabilitation Act, 29 U.S.C. §§ 791, 794; and (4) any claim of
retaliation under the False Claims Act pursuant to 31 U.S.C. § 3730 was not properly
before the court and was barred by the statute of limitations.
Plaintiff’s objection does not undermine those conclusions, and de novo review
of the record confirms it. Plaintiff’s objection focuses on the Rehabilitation Act claim
and argues that the accommodations requested by Plaintiff were related to her
disability.1 The court has and must construe pro se pleadings liberally. Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (“[A] pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers[.]”
(internal quotations omitted)). Despite the benefit of a liberal construction, Plaintiff’s
objection does not remedy the deficiencies of her argument opposing summary
For example, Plaintiff cites authority that late arrival can be a reasonable
accommodation for a qualifying employee, (Docs. # 70-7, 70-9), and argues
Defendant should have allowed her a more flexible schedule. But she makes no
showing that her disabilities – attention deficit/hyperactivity disorder and depression
– necessitated the accommodations identified and that those accommodations were
Plaintiff’s objection does not address the Magistrate Judge’s findings regarding her
claims under Title VII, the ADA, or the False Claims Act.
reasonable. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278,
1286 (11th Cir. 1997) (“[T]he burden of identifying an accommodation that would
allow a qualified individual to perform the job rests with that individual, as does the
ultimate burden of persuasion with respect to demonstrating that such an
accommodation is reasonable.”). If anything, the logical conclusion of Plaintiff’s
argument is that evening household responsibilities preventing an appropriate bedtime
and morning family obligations led to her late arrival at work. She has not carried her
summary judgment burden of persuasion in linking the proposed accommodations to
her disability and showing that they are reasonable in light of that disability.
Accordingly, it is ORDERED that:
The Recommendation of the Magistrate Judge (Doc. # 67) is
Defendant’s motion for summary judgment (Doc. # 53) is GRANTED;
A separate judgment shall issue.
DONE this 28th day of August, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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