Booth v. Houston

Filing 51

MEMORANDUM OPINION AND ORDER: it is ORDERED that Dft's 16 motion for summary judgment is GRANTED in part and DENIED in part as follows: (1) GRANTED on Plf's disability discrimination claim alleging the denial of a reasonable accommodation ; (2) DENIED on Plf's disability discrimination claim alleging constructive discharge; (3) GRANTED on Plf's retaliation claims; and (4) GRANTED on Plf's hostile work environment claims (disability-based and retaliatory-based). Signed by Chief Judge William Keith Watkins on 11/3/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LEE R. BOOTH,
Plaintiff,
v.
RANDALL V. HOUSTON,
19th Circuit District Attorney,
Defendant.

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CASE NO. 2:13-CV-903-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Lee R. Booth suffered damage to her vocal cords after being on a
ventilator for eleven days during an extended hospitalization in August 2009.
Upon returning to her job as an assistant district attorney for the 19th Judicial
Circuit of Alabama, which she had held since August 2004, Plaintiff contends that
her employer discriminated against her based upon her speech disability, retaliated
against her for opposing unlawful discrimination, and ultimately constructively
discharged her in April 2013, in violation of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. §§ 701, et seq. Before the court is Defendant’s motion for
summary judgment (Doc. # 16), which has been fully briefed (Docs. # 17–18, 20–
21, 25). After careful consideration of the arguments of counsel, the relevant law,
and the record as a whole, the court finds that Defendant’s motion is due to be
granted in part and denied in part.

I. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.
Personal jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and [he] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant. JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Or, the movant can assert,
without citing the record, that the nonmoving party “cannot produce admissible
evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant
meets its burden, the burden shifts to the nonmoving party to establish – with
evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material
fact exists when the nonmoving party produces evidence allowing a reasonable fact
2

finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).
III. BACKGROUND
A.

Plaintiff’s First Five Years as an Assistant District Attorney
On August 16, 2004, Defendant Randall Houston, district attorney for the

19th Judicial Circuit of Alabama, appointed Plaintiff as a full-time assistant district
attorney.

The 19th Judicial Circuit includes Autauga, Chilton, and Elmore

counties.

Plaintiff began her employment in the Elmore County division,

prosecuting cases in district court and traffic court, but at some point later, she
began prosecuting felony cases in circuit court. (Pl.’s Dep., at 16.)
In September 2008, Plaintiff received a raise, and in April 2009, Defendant
promoted Plaintiff to senior assistant district attorney. For the first five years of
her employment, Defendant described Plaintiff as a “loyal and faithful employee”
who made “conscientious decisions based on her interpretation of [his]
prosecutorial philosophy.”

(Def.’s Aff., at 1.)

But Defendant’s opinion of

Plaintiff’s job performance was soon to change.
B.

Plaintiff’s Illness, Vocal Cord Damage, and Return to Work with

Accommodations
In August 2009, after five years serving as an assistant district attorney,
Plaintiff contracted a sepsis infection, requiring hospitalization.
3

While

hospitalized, her condition worsened and became critical, and for eleven days, she
was on a ventilator and in a medically induced coma. Her condition stabilized, but
important to this litigation, the ventilator caused damage to Plaintiff’s vocal cords.
Plaintiff returned to work after fifty-two days paid leave. Although Plaintiff
was able to speak, her voice had a low volume, which required “amplification in a
courtroom.” (Pl.’s Dep., at 36.) To help Plaintiff transition back into her position,
Defendant assigned an intern to assist Plaintiff with her day-to-day responsibilities.
Additionally, a speaker system was installed in the courtrooms to accommodate
Plaintiff’s lack of vocal volume. Plaintiff agrees that the technology in the Elmore
County courtrooms, which included microphones at counsel’s table, adequately
accommodated her voice impairment. (Pl.’s Dep., at 36–37.)
C.

Additional Surgeries and Medical Leave
Post-dating her return to work in 2009, Plaintiff has undergone nine

surgeries to help improve her breathing and voice quality.

Her speaking

impairment has improved with each reparative surgery (see Pl.’s Dep., at 35–36);
however, as of April 2014, as indicated in her medical records, Plaintiff continues
to have a mildly “low” and “[r]aspy” voice, and her “[v]oice quality [is] abnormal
for [her] age and gender.” (Apr. 2014 Clinic Notes (Doc. # 21-7, at 4).) Plaintiff’s
physician notes that, although her voice has improved when “speaking in quiet
environments,” it “is still very weak” when there is “background noise.” Her
4

physician also rendered the following postoperative diagnoses:

“chronic

hoarseness,” “laryngeal insufficiency,” “right true vocal fold motion restriction,”
“posterior commissure web status post reconstruction,” and “secondary
laryngomalacia from surgical treatment of #4.” (Apr. 2014 Clinic Notes.)
It is undisputed that Defendant never denied Plaintiff leave or benefits for
her medical absences. (Pl.’s Dep., at 34; see also Order on Pretrial H’rg, at 6 (Doc.
# 50), in which Plaintiff stipulates that she “was provided with all the leave she
requested and was never denied leave.”) Plaintiff also says that, when she took
leave for additional surgeries, her leave was not “excessive” and that she tried to
“make sure that [she] either had something continued” or “that the cases were
worked up, and [that she had] talked to people about the cases that [she] had.”
(Pl.’s Dep., at 31–32.)
D.

Plaintiff’s Work Performance Issues from Defendant’s Perspective1
Within a few months of Plaintiff’s return to work in 2009 after her initial

hospitalization, James Houts, who at the time was the chief deputy district attorney
and Plaintiff’s supervisor, complained to Defendant that Plaintiff was not able to
“multi-task,” was “not supervising effectively,” “wasn’t doing her work,” and “was
in and out of the office all the time.” (Def.’s Dep., at 73, 74; see also Def.’s Aff.,
at 1.) Mr. Houts recommended that Defendant terminate Plaintiff based on “her
1

Although the summary judgment evidence must be viewed in the light most favorable
to Plaintiff, as discussed infra, Defendant is required to offer legitimate reasons for taking the
adverse employment actions against Plaintiff of which she complains.
5

inability to do her job effectively and excessive absences from work, which for the
most part, were due to post medical events.” (Def.’s Aff., at 1.) Defendant did not
concur with the recommendation and suggested that Mr. Houts discuss these issues
directly with Plaintiff and give her “an opportunity to correct whatever it was he
was not happy with.” (Def.’s Dep., at 73–74.) Defendant believed that Plaintiff
“needed additional time to recover and [that] her inability to multi-task was mostly
due to the stress of returning to work after her illness.” (Def.’s Aff., at 2.) It is
unclear from the record whether Mr. Houts discussed his concerns with Plaintiff.
Defendant says, though, that Mr. Houts removed Plaintiff from assisting with
scheduling docket events for Elmore County and that he “do[es] not think that [Mr.
Houts] mentioned [Plaintiff’s performance] to [him] again.” (Def.’s Aff., at 2.)
During the same time frame, Beverley Stone, Defendant’s chief of staff and
director of special services, also began receiving complaints on a weekly basis
from employees in the Elmore County office, primarily from support staff and
interns. They complained that Plaintiff “was passing off her own work to others to
complete,” was “frequently leaving the office for unknown reasons,” and generally
was not available to provide direction to the staff. (Stone’s Aff., at 2.) Because
these individuals did not want to confront Plaintiff with their concerns and risk
“hurt[ing] her feelings,” Ms. Stone informed them that “there was nothing [she]
could do.” (Stone’s Aff., at 2.)
6

At least once, Ms. Stone “casually spoke” with Defendant about some of the
“morale problems” she believed that Plaintiff’s job performance created in the
Elmore County office, but Defendant “instructed [Ms. Stone] to try to get everyone
to work with [Plaintiff] until she got back to 100%.” (Stone’s Aff., at 3.) Ms.
Stone had at least one meeting with Plaintiff in late 2009 or early 2010 to address
concerns that her leave resulting from the combination of her and her family
members’ medical appointments was excessive.

Plaintiff “became very

aggressive” when Ms. Stone suggested that Plaintiff try to find other family
members or friends to help cover some of her family appointments. (Stone’s Aff.,
at 3.)
Notwithstanding the complaints about Plaintiff’s job performance, and
Defendant’s concerns about Plaintiff’s steady decline in work performance, in
March 2011, Defendant awarded a discretionary merit-based pay raise exclusively
to Plaintiff, and a month later, Plaintiff received an additional two-percent, acrossthe-board raise. (Def.’s Dep., at 48–50.) When Plaintiff thanked Defendant by
email for the merit raise, he replied, “You deserve it, wish it could be much more.”
(Mar. 23, 2011 email (Pl.’s Ex. 6).)
E.

Plaintiff’s Transfer to the Chilton County Office
Plaintiff worked in the Elmore County office through January 2012. At that

time, Defendant moved Plaintiff to the Chilton County office and reassigned
7

Assistant District Attorney CJ Robinson from Chilton County to Elmore County.2
Plaintiff was one of two attorneys assigned to the Chilton County office; she
retained her position as a senior assistant district attorney and had supervisory
authority over Assistant District Attorney Brandon Bates. Defendant was hopeful
that Plaintiff’s supervisory abilities would improve if he moved her to the Chilton
County office “where there is less work, less case load, . . . [and] different people.”
(Def.’s Dep., at 121–22.) In his affidavit, Defendant explains that “the stress level
for [Plaintiff] would be much less in Chilton County,” in part, because “Chilton
County only has Grand Jury twice a year and the number of felony cases in Chilton
County is substantially less than in Elmore or Autauga.” (Def.’s Aff., at 4–5.) He
further says:
I also believed this would give [Plaintiff] the opportunity to run an
office on her own without me there to interfere with her supervisory
style. I told [Plaintiff], when I reassigned her to Chilton County, that I
expected her to take control of the situation and run the office like she
knew I expected it to be run. When I moved Robinson to Elmore
County[,] I also made him [Plaintiff’s] . . . supervisor; however, he
did not hold the title of Chief Deputy until several months later.
(Def.’s Aff., at 4–5.)
Plaintiff recalls that, after the fact, Defendant’s Chief Investigator Ray
Puckett told her that Defendant transferred her to Chilton County because Mr.
Robinson and Mr. Bates “didn’t get along” and that Defendant believed that, based
2

Mr. Robinson’s reassignment was in anticipation of his promotion to chief deputy upon
Mr. Hout’s departure from the office. (Def.’s Aff., at 4.)
8

upon her experience and age, Mr. Bates “may respect” her more than he respected
Mr. Robinson. (Pl.’s Dep., at 42.) Later, Plaintiff also learned that Defendant
transferred her to Chilton County because the work was “easier.” (Pl.’s Dep.,
at 43.) Plaintiff felt, though, that the work was not easier in Chilton County
because “[t]here was a lot more courtroom work” in district court and traffic court,
and there were only two assistant district attorneys assigned to that office. (Pl.’s
Dep., at 43.)
F.

Microphone Accommodations in the Chilton County Courtrooms
At the time of Plaintiff’s reassignment to Chilton County, the courtrooms in

that county did not have any type of sound system. (Pl.’s Dep., at 37; Def.’s Aff.,
at 5.) At Plaintiff’s request, Defendant purchased Plaintiff a portable amplification
system that included a microphone for her use in the courtroom in Chilton County.
Plaintiff has conceded that Defendant provided the “accommodation [she]
needed.” (Pl.’s Dep., at 39–40, 45, 53.)
G.

Plaintiff’s Work Performance in Chilton County
Between January 2012 and May 2012, Mr. Robinson, at Defendant’s

request, monitored Plaintiff’s performance in the Chilton County office.

Mr.

Robinson describes in detail myriad problems he observed. He attests that, during
her first grand jury in Chilton County, where the docket consisted of approximately
300 cases, Plaintiff was “disruptive and ill prepared to present cases from multiple
9

officers and seemed ill equipped to steer the questions asked by grand jurors.”
(Robinson’s Aff., at 2.) In his affidavit, Mr. Robinson does not indicate if he
discussed with Plaintiff his concerns about her grand jury conduct.
Mr. Robinson also believes that Plaintiff repeatedly acted in a manner that
suggested problems with her memory.

According to Mr. Robinson, Plaintiff

negotiated a plea agreement with terms that were contrary to multiple discussions
he had had with her concerning proper handling of that particular case. She also
either “disregard[ed]” office policy or forgot the policy when, in a different case,
she negotiated a plea agreement that inappropriately included the defendant’s
waiver of potential civil claims. (Robinson’s Aff., at 4.) Mr. Robinson further
believes that Plaintiff forgot the policy requiring the physical presence of an
attorney at all times in the office because “on more than one occasion,” she left the
Chilton County office without an attorney present. (Robinson’s Aff., at 3.) These
and other alleged deficiencies were the catalyst behind the convening of a meeting
in May 2012.
H.

The May 2012 Meeting
The May 2012 meeting, which Plaintiff secretly recorded, was held at the

Elmore County office. Present for the meeting were Plaintiff, Ms. Stone, Mr.
Puckett, and Mr. Robinson.

The meeting occurred at Defendant’s direction.

(Def.’s Dep., at 116–17; Robinson’s Aff., at 4.)
10

As the first order of business at the meeting, Plaintiff was “taken off” one
capital murder case, not assigned to another, and given a limited role in a third
capital murder case. Mr. Robinson says that Plaintiff was told only that these
prosecutorial assignments were for “logistical reasons,” which Mr. Robinson says
was “true,” but that Plaintiff’s lack of “memory recall” also was an undisclosed
“motivating factor.” (Robinson’s Aff., at 4.)
Ms. Stone then expressed “concerns” with Plaintiff’s alleged “lapses in
memory,” which Ms. Stone categorized as the “only issue” impeding Plaintiff’s job
performance. Ms. Stone gave some illustrations of what she said demonstrated a
“pattern” of memory loss that had developed since Plaintiff’s hospitalization in
August 2009, including: (1) Plaintiff’s apparent failure to remember Defendant’s
directive that Plaintiff have no involvement in the criminal cases her husband, a
police officer, had investigated; (2) Plaintiff’s inability to recall a conversation
with an investigator about rescheduling a case due to the impending birth of his
child; and (3) Plaintiff’s request to participate in a capital murder trial when in fact
she previously had negotiated a plea agreement that had been accepted by the
court. Ms. Stone explained that these and other incidents “as a whole” gave her a
“real” concern “about [Plaintiff’s] memory loss” in both administrative and
substantive matters.

The conversation then turned to Plaintiff’s voice after

Plaintiff asked several times, “What else is there?” (May 2012 Meeting (audio
11

recording) (Ex. 3 to Doc. # 21); see also Robinson’s Aff., at 5 (“We relayed to Ms.
Booth that her voice was an issue, but that was not the purpose of the [May 2012]
meeting.”).)
Ms. Stone said, “[I]f you cannot remember, if you cannot speak where
people can understand you on the phone and we’ve had two complaints . . . about
the fact that ‘I can’t talk to her, I cannot understand her.’ A lawyer is an actor;
[she] ha[s] to talk and [she] ha[s] to remember . . . .” (May 2012 Meeting (audio
recording).) During that conversation, Ms. Stone also said, “It’s about your health,
which is your memory and your voice.” Ms. Stone told Plaintiff that she was not
being terminated, but that “there [were] some problems” that “ha[d] to be fixed.”
Plaintiff responded that she was not certain what else she could do “about her
voice.” Ms. Stone reiterated that “[a] lawyer has to have a voice to work,” and
that, if Plaintiff felt that there was nothing she could do, then she “should check
into some type of disability.” Ms. Stone then relayed to Plaintiff her belief that
Plaintiff was “unable to do the job that [Defendant] hired [her] to do ten years
ago.” The meeting concluded with Ms. Stone stating, “[Y]ou are not willing to try
to work with us, alleviate any of our concerns, or even accept the fact that there
might be a problem.” (May 2012 Meeting (audio recording).) Plaintiff describes
Ms. Stone’s overall tone as “screaming.” (Pl.’s Dep., at 49.)

12

After the May 2012 meeting, Ms. Stone and Mr. Robinson recommended
Plaintiff’s termination to Defendant. Defendant refused and said he wanted to give
Plaintiff time to “get through this.” (Def.’s Dep., at 117.)
I.

Plaintiff’s Post-May 2012 Job Performance
Mr. Robinson attests that, after the May 2012 meeting, Plaintiff’s

performance problems continued.

It was in January 2013, however, that Mr.

Robinson says he witnessed “a level of incompetence leading up to th[e January
2013] grand jury that,” in his opinion, “[was] unequaled . . . by any attorney” with
whom he has worked. (Robinson’s Aff., at 9.) He explains that Plaintiff
neglected her duties, failed to meet communicated deadlines,
submitted inadequate and incomplete files, and passed-off
responsibilities (many of which only attorneys are qualified to make
and she passed them off onto support staff and interns), and then
failed to correct the problems when she was sent home from the
winter conference.
(Robinson’s Aff., at 9.) The grand jury coordinator, Micke Arant Evans, had to
step in and attempt to rectify these shortcomings. (Evans’s Aff., at 1.)
J.

The January 30, 2013 Meeting
On January 30, 2013, Mr. Robinson, accompanied by Mr. Puckett, met with

Plaintiff and explained to her that “her reassignment to Chilton County was not
working out the way [they] hoped it would.” (Robinson’s Aff., at 10.) He did not
“cover the same issues” that were covered in the May 2012 meeting. He did bring
up her voice, though, because he “had received additional complains about
13

[Plaintiff’s] voice from judges, court staff, attorneys, and victims.” In his affidavit,
Mr. Robinson paraphrases:

“Despite the usage of a microphone and

amplifier[, Plaintiff] was difficult to hear and even more difficult to understand.”
(Robinson’s Aff., at 10.) The audio recording of the January 30, 2013 meeting,
which Plaintiff again surreptitiously recorded, reveals to the extent audible, the
specifics of Mr. Robinson’s statements to Plaintiff:
It’s just not working out very well with you in Clanton. Now, there
have been some stuff that has been little and there’s been some stuff
that is bigger stuff. Even some of the judges right now have concerns
about your voice and some other things in court. I know everybody
was hopeful that it was going to get better and continue to get better.
Right now even some of the judges, they have major concerns and
don’t feel like [inaudible]. A big part of what we do is in the
courtroom. I mean you’ve been doing this for a long time; I know
you know all that. Also, the problems with some of the people, and
I’m not just talking about the stuff last week with Micke [the Grand
Jury Coordinator]. Obviously, . . . you and Micke have had
longstanding problems that none of us are going to fix . . . [,] not just
that . . . . other things with people in the office . . . .
(Jan. 30, 2013 meeting (audio recording) (Ex. 4 to Doc. # 21).) Mr. Robinson
further explains that “[t]he weakness of her voice remained unchanged for the last
couple years, but the deterioration of her ability to competently execute even the
most basic duties [for which] she was responsible was the catalyst for the meeting
on January 30, 2013.” (Robinson’s Aff., at 11.)
At this meeting, Mr. Robinson, at Defendant’s directive, gave Plaintiff two
alternative employment options. The first option was that she could work part14

time in juvenile court at approximately half her pay with benefits until her
retirement in the state system vested (approximately eighteen or nineteen months).
The second option was that she could “work whenever [she was] needed . . . and
have more hours with a little more pay.” (Pl.’s Dep., at 53–54.) The second
option, which also was considered part-time, would include no benefits for the
purpose of permitting Plaintiff, if she desired, to obtain additional employment
outside the state system.

(Pl.’s Dep., at 54–55.)

Neither option included

supervisory responsibilities, and Plaintiff says that, under either option, it “was
[her] understanding that [her] job would end after retirement vested.”3 (Pl.’s Dep.,
at 53.)
Plaintiff rejected both options because she was “absolutely humiliated” that
Defendant, for whom she had worked for ten years, “didn’t give [her] the courtesy
of presenting those options . . . to [her] himself.” (Pl.’s Dep., at 57.) She also was
“devastated [and] embarrassed.” (Pl.’s Dep., at 59.) Plaintiff’s lifelong dream was
to be a “career prosecutor” and a reassignment to “juvenile court [would have
been] just a complete humiliation” when for the past decade she had “prosecute[d]
felony cases” and “had had a very good track record.” (Pl.’s Dep., at 57.)

3

Defendant’s testimony differs as to the nature of the two options. Defendant says that
the first option was for full-time employment with a reduced salary until Plaintiff vested in the
state retirement system and that, under the second option, Plaintiff could have worked in the
part-time position “for as long as she wanted.” (Def.’s Dep., at 111–13; see also Robinson’s
Aff., at 11 (same).) At the summary-judgment phase, Plaintiff’s account, which finds support in
the January 2013 audio recording, is presumed true.
15

About an hour after the meeting, Plaintiff texted Mr. Robinson proposing a
third option.

She asked Mr. Robinson “if she could clean out her office

immediately and remain on the payroll until the end of March” 2013. (Robinson’s
Aff., at 11.) Defendant accepted Plaintiff’s proposal, and Plaintiff’s employment
ended on April 1, 2013.
K.

This Lawsuit
In December 2013, Plaintiff filed this lawsuit. Liberally construed, the

Complaint contains the following claims in violation of the Rehabilitation Act:
(1) denial of a reasonable accommodation; (2) constructive discharge; (3)
disability-based hostile work environment; (4) retaliation; and (5) retaliatory
hostile work environment.
L.

Defendant’s Summary Judgment Affidavit
Defendant has moved for summary judgment on all claims. In his affidavit

submitted in support of the pending summary judgment motion, he says that he
“would never have allowed for [Plaintiff] to be terminated simply because of her
vocal issues.” (Def.’s Aff., at 6.) Defendant offers numerous reasons unrelated to
her voice for his decision in January 2013 to relieve Plaintiff of her supervisory
responsibilities and demote her to part-time status. He provides a detailed list of
what he contends were Plaintiff’s myriad post-August 2009 job deficiencies,
including the following: (1) a conflict Plaintiff had with a case agent concerning
16

her handling of the case; (2) Plaintiff’s apparent memory loss about Defendant’s
long-time policy on prosecuting “one pill” felony cases4; (3) instances where
Plaintiff allowed her husband, a police officer, to sleep in her office on days when
he was the investigator on cases being presented to the grand jury; (4) Plaintiff’s
improper participation in her husband’s presentation of cases to the grand jury;
(5) Plaintiff’s unexpected absences to deal with “personal issues with family”;
(6) the fact that Plaintiff brought her child to the office for extended periods of
time and occasionally had him hide under her desk; (7) her poor decision-making
(such as allowing her husband, a police officer, to attend a crime scene on a case
worked by another agency); (8) her violation of policy forbidding an assistant
district attorney from offering a criminal settlement that included the settlement of
a condemnation case; (9) allowing an intern to cover the office without attorney
supervision; (10) her failure to attend planned meetings with victims and law
enforcement officers; and (11) her failure to prepare grand jury files adequately.
(See Def.’s Aff., at 2–8.)
Defendant says that some of these deficiencies suggested a 2009 posthospitalization loss of memory and that other of Plaintiff’s “memory issues” are

4

As explained by Defendant, a “one pill” felony case is a case where “the primary felony
charge is based on the possession of a single pill constituting a felony possession of controlled
substance charge” and the remaining counts are non-felony charges. Defendant says that in a
“one pill” case, “it is the general policy of th[e] office not to indict it as a felony and remand the
case back to district court for prosecution on the misdemeanor counts and recharge the felony as
something else.” (Def.’s Aff., at 2.)
17

“covered by affidavits from the individual employees” who had personal
knowledge of those occurrences. (Def.’s Aff., at 2.) These affidavits total nine,
and Plaintiff emphasizes that the affidavits are the culmination of Mr. Robinson’s
post-litigation email to staff dated July 8, 2014, requesting “summaries of
individual dealings with” Plaintiff. (Def.’s Resp. to Pl.’s 2d Request for Prod., at 2
(Doc # 21-5).)
Defendant did not document Plaintiff’s performance issues in her personnel
file or otherwise create a contemporaneous written record of the issues, and he did
not have a progressive discipline policy. Defendant also did not have a policy
requiring performance evaluations, and presumably for that reason, there are no
written performance evaluations of Plaintiff in the summary judgment record.
(Def.’s Dep., at 22, 32, 37, 126.)
IV. DISCUSSION
As grounds for summary judgment, Defendant contends that under the
burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), Plaintiff’s claims cannot survive summary judgment. He contends that
Plaintiff cannot establish a prima facie case of discrimination or retaliation
and that, even if Plaintiff could establish a prima facie case, she fails to rebut
Defendant’s legitimate, nondiscriminatory and non-retaliatory reasons for his
actions.

More specifically, Defendant argues that he undisputedly fulfilled
18

Plaintiff’s requests for amplification technology in the courtrooms, that Plaintiff
cannot show that he subjected her to an adverse employment action or that she
engaged in protected activity, and that Plaintiff fails to demonstrate severe or
pervasive harassment to support her claims for hostile work environment under the
Rehabilitation Act’s anti-discrimination and anti-retaliation provisions. Plaintiff
opposes summary judgment.
The claims are addressed in the following order:

(1) disability

discrimination alleging the denial of a reasonable accommodation; (2) disability
discrimination alleging constructive discharge; (3) retaliation; and (4) hostile work
environment (disability- and retaliatory-based). For the reasons that follow, the
disability discrimination claim alleging constructive discharge survives summary
judgment, but the remaining claims do not.
A.

Disability Discrimination Under the Rehabilitation Act
Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, provides

that “[n]o otherwise qualified individual with a disability in the United States . . .
shall, solely by reason of her or his disability, . . . be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .”5

5

“[C]ases involving the ADA [Americans with Disabilities Act] are precedent for those
involving the Rehabilitation Act.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). The
ADA and Rehabilitation Act are not identical, however. One difference important to this case
lies in the causation standard. The Rehabilitation Act requires that the discrimination occur
“solely by reason of her or his disability.” § 794(a). In contrast, the ADA’s “prohibition of
discrimination . . . ‘by reason of’ disability establishes a motivating factor causal standard for
19

§ 794(a). The Rehabilitation Act permits more than one type of claim for proving
disability discrimination. Three types of claims are relevant here: (1) denial of a
reasonable accommodation; (2) adverse employment action; and (3) hostile work
environment. The first claim is where the employee contends that he or she is a
qualified individual who, “with reasonable accommodation, can perform the
essential functions of the position in question.” Barth v. Gelb, 2 F.3d 1180, 1186
(D.C. Cir. 1993) (citation and internal quotation marks omitted). In these cases,
the employer “will usually contend that no reasonable accommodation is
available.” Id. The second claim is when an employee contends that he or she
suffered an adverse employment action solely because of his or her disability, and
the employer defends the action on grounds that it took an adverse employment
action against the employee for reasons that are not related to the individual’s
disability. See id. The third claim is where the employee alleges that he or she
was subjected to a hostile work environment. See Burgos v. Chertoff, 274 F.
liability when there are two or more possible reasons for the challenged decision and at least one
of them may be legitimate.” K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088,
1099 (9th Cir. 2013) (citation and internal quotation marks omitted); see also Schwarz v. City of
Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008) (noting that “plaintiffs claiming
intentional discrimination under the RA [Rehabilitation Act] must show that they were
discriminated against ‘solely by reason of [their] disability,’ but the ADA requires only the lesser
‘but for’ standard of causation” (internal citation omitted)).
Contrary to the sole-causation standard under the Rehabilitation Act, Plaintiff’s
Complaint and summary judgment brief erroneously presume that Plaintiff can prevail at trial if
her disability was “a substantial and/or motivating factor” in Defendant’s alleged adverse
treatment of her. (See Pl.’s Summ. J. Resp., at 14; see Compl., at 11.) Plaintiff is forewarned
that such proof at trial will not suffice to establish a violation of the Rehabilitation Act.
20

App’x 839, 842 (11th Cir. 2008) (analyzing a hostile-work-environment theory
under the Rehabilitation Act).
1.

Reasonable Accommodation

As to the first claim, in her summary judgment response, Plaintiff says that
she “is not claiming at summary judgment that she was not provided her required
accommodation of a microphone.” (Pl.’s Summ. J. Resp., at 1–2 (Doc. # 20).)
Plaintiff’s statement comports with the evidence.

Namely, at her deposition,

Plaintiff conceded that the only accommodation she requested was amplification
equipment in the courtrooms and that Defendant provided the requested
accommodation.

(See Pl.’s Dep., at 39–40, 45, 53.)

It appears, though, that

Plaintiff is attempting to forego reliance on her reasonable accommodation claim
only for purposes of summary judgment. To the extent that Plaintiff intends to
resurrect this claim at trial, she cannot do so for the following reason.
Defendant has moved for summary judgment on the reasonable
accommodation claim, relying primarily on Plaintiff’s deposition testimony, and
has met his burden of showing that “there is no genuine dispute as to any material
fact” and that he “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
By failing to submit evidence that raises a genuine dispute of material fact for trial,
Plaintiff’s claim fails at the summary-judgment phase. The claim cannot be raised

21

anew at trial, and summary judgment is due be entered in Defendant’s favor on this
claim.
2.

Adverse Action (Constructive Discharge)

Plaintiff’s allegation that Defendant “forc[ed] her to resign” (Compl.
¶ 66(e)) will be analyzed as a constructive discharge claim. Plaintiff can prove this
claim through circumstantial or direct evidence of discrimination. See Curry v.
Sec’y, Dep’t of Veterans Affairs, 518 F. App’x 957, 963 (11th Cir. 2013) (a case
decided under the Rehabilitation Act).

Where there is no direct evidence of

discrimination in an action brought under the Rehabilitation Act, the Eleventh
Circuit has used the burden-shifting framework set out in McDonnell Douglas, 411
U.S. at 792. See Curry, 518 F. App’x at 963; Nadler v. Harvey, No. 06-12692,
2007 WL 2404705, at *4 (11th Cir. Aug. 24, 2007); Boone v. Rumsfeld, 172 F.
App’x 268, 270 (11th Cir. 2006) (“Discrimination claims brought under the
Rehabilitation Act . . . are analyzed under the three-part test outlined in McDonnell
Douglas.”).6
Under this paradigm, the plaintiff must first make out a prima facie case of
discrimination. If the plaintiff succeeds, “the burden shifts to the defendant to
articulate a legitimate nondiscriminatory reason for its actions.” Chapter 7 Trustee
6

While the cited decisions are unpublished, there are ample published opinions of the
Eleventh Circuit permitting plaintiffs to prove disability discrimination under the ADA “through
circumstantial evidence using the familiar burden-shifting analysis employed in Title VII
employment discrimination cases.” Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th
Cir. 2001).
22

v. Gate Gourmet, 683 F.3d 1249, 1255 (11th Cir. 2012). If the defendant proffers a
nondiscriminatory reason, the burden returns to the plaintiff, who must show that
the proffered reason is a ruse for the real, discriminatory reason. Id. “It is at this
stage that the plaintiff’s ‘burden . . . merges with the ultimate burden of persuading
the court that [the plaintiff] has been the victim of intentional discrimination.’”
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011) (quoting
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “[I]f a jury
reasonably could infer from the evidence presented that the employer’s legitimate
justification is pretextual, the question becomes whether the evidence, considered
in the light most favorable to the plaintiff, yields the reasonable inference that the
employer engaged in the alleged discrimination.” Id.
“Provided that the proffered reason is one that might motivate a reasonable
employer, [the employee] must meet that reason head on and rebut it.” Chapman
v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). The employee does not rebut
the reason “by simply quarreling with the wisdom of that reason,” id., but by
exposing “weaknesses, implausibilities, inconsistencies, incoherencies[,] or
contradictions” in the employer’s reasoning. Springer v. Convergys Customer
Mgmt. Grp. Inc., 509 F.3d 1344, 1348 (11th Cir. 2007) (citation and internal
quotation marks omitted); see also Rioux v. City of Atlanta, Ga., 520 F.3d 1269,
1279 (11th Cir. 2008) (To show pretext, the employee must “demonstrate
23

weaknesses or implausibilities in the proffered legitimate reason so as to permit a
rational jury to conclude that the explanation given was not the real reason, or that
the reason stated was insufficient to warrant the adverse action.”).

“A reason is

not pretext for discrimination,” however, “‘unless it is shown both that the reason
was false, and that discrimination was the real reason.’” Brooks v. Cnty. Comm’n
of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
Both parties proceed under the circumstantial evidence framework. The
court will do the same.
(a)

Prima Facie Case

For purposes of the prima facie case of the McDonnell Douglas analysis,
Plaintiff can make out a § 504 disability discrimination claim by showing that
(1) she has a disability, (2) she was otherwise qualified for her job as an assistant
district attorney, (3) she was subjected to an adverse employment action, and
(4) the adverse employment action occurred under circumstances that raise a
reasonable inference of unlawful discrimination solely on the basis of Plaintiff’s
disability. See Ward v. United Parcel Serv., ___ F. App’x ___, 2014 WL 4452960,
at *4 (11th Cir. 2014) (“To establish a prima facie case [under the Americans with
Disabilities Act], a plaintiff may show that (1) he was disabled, (2) he was
qualified to perform the job, and (3) he was subjected to an adverse employment
24

action because of his disability.” (citing Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1193 (11th Cir. 2004)); Tarmas v. Sec’y of Navy, 433 F.
App’x 754, 761–62 (11th Cir. 2011) (holding that under the Rehabilitation Act to
establish a prima facie case under the McDonnell Douglas framework, “[i]t is not
enough for a plaintiff to demonstrate that an adverse employment action was based
partly on his disability,” but instead, “a plaintiff must prove that he suffered an
adverse employment action ‘solely by reason of’ his handicap”).7

Defendant

challenges all four elements.8
(i)

Whether Plaintiff Has a Disability

The Rehabilitation Act incorporates the Americans with Disabilities Act’s
(“ADA”) definition of a “disability.” See 29 U.S.C. § 705(9)(B) (providing that
7

The term “prima facie” has two meanings. See Collado v. United Parcel Serv., Co.,
419 F.3d 1143, 1153 n.7 (11th Cir. 2005) (noting that a “source of confusion stems from the fact
that the term ‘prima facie case’ has two meanings” and explaining how “prima facie” is used in
an ADA discrimination case). “Prima facie” traditionally refers to the “‘quantum of evidence
needed to create a jury question.’” Id. (quoting Wright v. Southland Corp., 187 F.3d 1287, 1292
(11th Cir. 1999)). “In the McDonnell Douglas context, however, the term relates to a step in the
analytical framework.” Id. Here, the term “prima facie” is used to describe the first step of the
McDonnell Douglas framework and is not used in the traditional sense as the “‘quantum of
evidence needed to create a jury question.’” Collado, 419 F.3d at 1153 n.3 (quoting Wright, 187
F.3d at 1292).
The parties rely on Jackson v. Veterans Administration, 22 F.3d 277, 278 (11th Cir.
1994). (See, e.g., Def.’s Summ. J. Br., at 9.) Jackson, which was an appeal after a bench trial,
recites the prima facie elements in the traditional sense, not as part of the McDonnell Douglas
framework. But admittedly, as touched on later in this opinion, it is difficult to discern how the
two prima facie standards differ in this circuit.
8

Under the Rehabilitation Act, to establish a prima facie case, the employee also must
show that he or she “worked for a program or activity that received federal financial assistance.”
Jackson, 22 F.3d at 278. Defendant does not dispute that his agency receives federal financial
assistance. (See Order on Pretrial H’rg, at 6 (Stipulations).)
25

the term “disability” for purposes of § 794 has “the meaning given it in” 42 U.S.C.
§ 12102. Under the ADA, “disability” means “with respect to an individual – (A)
a physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(1); see generally
Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000) (discussing the definition of a
disability in the context of the Rehabilitation Act). “[M]ajor life activities include
. . . speaking.” § 12102(2)(A).
In 2008, “Congress made significant changes to the ADA by enacting the
ADA Amendments Act of 2008 (the ‘ADAAA’), which became effective on
January 1, 2009,” Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267
(11th Cir. 2014), and prior to the initial injury to Plaintiff’s vocal cords. “Through
the ADAAA, Congress broadened the definition of ‘disability,’ thereby broadening
that term’s coverage, so that the definition of disability under the ADA would be
interpreted consistently with how courts had applied the definition of a
handicapped individual under the Rehabilitation Act of 1973.”9 Borwick v. Univ.
of Denver, 569 F. App’x 602, 604 (10th Cir. 2014) (internal citations and quotation
marks omitted); see also Pub. L. No: 110–325, 122 Stat. 3553 § 2(a) (3) (“[W]hile
Congress expected that the definition of disability under the ADA would be
9

The Rehabilitation Act, which was passed in 1973, used the term “handicap,” not
“disability.” The 1992 amendments to § 794(a) substituted “disability” in place of “handicap.”
26

interpreted consistently with how courts had applied the definition of a
handicapped individual under the Rehabilitation Act of 1973, that expectation has
not been fulfilled.”).

In his arguments, Defendant has not acknowledged the

ADAAA; however, given its stated purpose to expand the ADA’s coverage so as to
align with that afforded under the Rehabilitation Act, the court finds that the
ADAAA and its interpretative regulations are persuasive authority for defining
“disability” for purposes of Plaintiff’s Rehabilitation Act discrimination claim.
The ADAAA provides that the “definition of disability . . . shall be
construed in favor of broad coverage.”

§ 12102(4)(A).

Additionally, the

interpretive regulations set out that “the threshold issue of whether an impairment
‘substantially limits’ a major life activity should not demand extensive analysis.”
29 C.F.R. § 1630.2(j)(1)(iii). Instead, “‘the primary object of attention in cases
brought under the ADA should be whether entities covered by the ADA have
complied with their obligations[.]’” Mazzeo, 746 F.3d at 1268 (quoting 42 U.S.C.
§ 12101 note).
The determination of whether “an individual is substantially limited in a
major life activity” encompasses a “condition, manner, or duration” analysis:
[I]n determining whether an individual is substantially limited in a
major life activity, it may be useful in appropriate cases to consider, as
compared to most people in the general population, the condition
under which the individual performs the major life activity; the
manner in which the individual performs the major life activity;
and/or the duration of time it takes the individual to perform the major
27

life activity, or for which the individual can perform the major life
activity.
Id. § 1630.2(j)(4)(i).
Plaintiff contends that, because of the damage to her vocal cords caused by
the ventilator, she is substantially limited in the major life activity of speaking. See
§ 12102(1)(A).

To summarize, under subsection (A), an individual has a

qualifying disability if he or she has (1) an impairment (2) that affects a major life
activity and (3) substantially limits that major life activity. Defendant does not
challenge that Plaintiff has a physical impairment that affects the major life activity
of speaking. Accordingly, this portion of the definition of a disability is deemed
satisfied.
Rather, Defendant argues that Plaintiff’s impairment does not pose a
substantial limitation on her ability to speak. Defendant categorizes Plaintiff’s
asserted disability as a temporary condition, analogous to a spasm in a back muscle
or an operable knee injury, and argues that a temporary impairment does not
qualify as one that is substantially limiting.

Defendant focuses on Plaintiff’s

testimony that her speaking ability has continued to improve as a result of the nine
surgeries she has undergone over the course of nearly five years and on her
admission that, during her employment, several judges could hear her in the
courtroom without the aid of the amplification system.

28

To survive summary judgment, Plaintiff must produce evidence from which
a reasonable jury could find that her vocal cord damage substantially limited her
ability to speak. For the reasons that follow, she meets this threshold in light of the
ADAAA’s broad construction of the phrase “substantially limits.”
First, Plaintiff has presented medical evidence, although she is not required
to do so, see § 1630.2(j)(1)(v), that the ventilator caused damage to her vocal cords
in August 2009, and that she remains under a doctor’s care for treatment of her
persistent vocal cord injury. (See Pl.’s Medical Records (Ex. 7 to Doc. # 21).)
Plaintiff further has testified that she has undergone nine surgeries over the course
of her treatment, and her medical records reflect that, as of April 2014 (almost five
years after the initial injury), (1) she still has multiple postoperative diagnoses
including “laryngeal insufficiency” and “chronic hoarseness,” (2) her voice
remains “low,” “[r]aspy, and “still very weak” when there is “background noise,”
and (3) her “[v]oice quality [is] abnormal for patient’s age and gender.” (Apr.
2014 Clinic Notes.) The medical records indicate that for more than five years,
Plaintiff’s voice has been affected detrimentally by the damage to her vocal cords
caused by the ventilator, and a reasonable jury could find that nine surgeries later,
Plaintiff’s voice still is not of the same volume or quality as that of the average
person in the general population. See § 1630.2(j)(4)(i).

29

Second, although Defendant focuses on Plaintiff’s testimony that at times
the judges could understand Plaintiff in the courtroom when her microphone was
turned off, there is conflicting evidence.

Prior to her alleged constructive

discharge, both Mr. Robinson and Ms. Stone told Plaintiff that her voice “was an
issue,” and Mr. Robinson told Plaintiff that some judges had a problem with her
voice in the courtroom. (Jan. 30, 2013 meeting (audio recording).) Defendant also
admits that Plaintiff’s voice posed “some degree of inconvenience” in that “[it]
was at times difficult to hear her.” (Def.’s Aff., at 5.) Overall, the evidence
creates a genuine dispute for trial as to whether Plaintiff’s speech was difficult to
understand, particularly in the courtroom.
Third, there is evidence that contradicts Defendant’s argument that Plaintiff
has suffered only a temporary impairment to her speaking ability. The evidentiary
record tracks Plaintiff’s nearly five-year struggle with her voice difficulties.
Although her voice quality has improved, the most recent clinical notes, as
discussed, indicate that her voice remains impaired. Moreover, Defendant’s focus
on a temporal requirement loses efficacy in light of the ADAAA. Defendant relies
on pre-ADAAA case law to argue that temporary impairments do not qualify as
disabilities, but the ADAAA recognizes that “transitory and minor” impairments
may constitute disabilities. See § 1630.2(j)(1)(ix) (“[T]he six-month ‘transitory’
part of the ‘transitory and minor’ exception to ‘regarded as’ coverage . . . does not
30

apply to the definition of ‘disability’ under . . . the ‘actual disability’ prong.”). The
revised regulations interpreting the ADAAA also do not define “duration” in terms
of the permanency of the impairment and, thus, call into question the continuing
validity of pre-ADAAA case law focusing on the long-term effects of the
impairment. See Moore v. Jackson Cnty. Bd. of Educ., 979 F. Supp. 2d 1251, 1261
(N.D. Ala. 2013) (concluding that by enacting the ADAAA, “Congress no longer
intends for temporary impairments to be excluded from the definition of
‘disability’”); see also § 1630.2(j)(4)(i) (defining “duration” not in terms of
permanency of disability but in terms of the “duration of time it takes the
individual to perform the major life activity, or for which the individual can
perform the major life activity”).

For these reasons, Defendant’s temporal

arguments against a finding of a substantially limiting impairment are rejected.
In sum, the evidence creates a genuine dispute of material fact whether
Plaintiff’s voice is impaired to the extent that it substantially limits her ability to
speak. Accordingly, whether Plaintiff is an individual with a qualifying disability
is for the jury to decide.10
(ii)

Whether Plaintiff Is a Qualified Individual

“The term ‘qualified individual’ means an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment
10

In light of this finding, it is unnecessary to address Plaintiff’s alternative argument that
she is disabled because Defendant regarded her as having a speaking impairment.
31

position that such individual holds or desires.”

42 U.S.C. § 12111(8).

The

Eleventh Circuit has held that the inquiry of whether an individual is “qualified”
for a job entails a two-step process.

First, the individual must demonstrate

“sufficient experience and skills, an adequate educational background, or the
appropriate licenses for the job . . . .” Gary v. Ga. Dep’t of Human Res., 206 F.
App’x 849, 851–52 (11th Cir. 2006) (quoting Reed v. Heil Co., 206 F.3d 1055,
1062 (11th Cir. 2000)). Second, the individual must show that he or she can
perform the essential functions of the job, either with or without reasonable
accommodations. See id.
Defendant does not dispute that Plaintiff’s educational degrees, skills, and
experience made Plaintiff a qualified assistant district attorney when he appointed
her in 2004. He also confirms that Plaintiff performed her work satisfactorily as an
assistant district attorney for the nearly five years preceding her hospitalization in
August 2009. Defendant contends, however, that, after Plaintiff’s return to work in
2009, her performance began to suffer and steadily deteriorated to the point that
she no longer satisfied the minimum job requirements. Specifically, Defendant
points to evidence of Plaintiff’s alleged shortcomings in “remembering significant
events, following directions, organization, calendaring, preparation, attentiveness,
and professionalism.”

(Def.’s Summ. J. Br., at 17 (Doc. # 17).)

Defendant

contends, therefore, that, even if it is assumed that Plaintiff is disabled for purposes
32

of the Rehabilitation Act, Plaintiff is not qualified to perform “the basic tasks
required for any [assistant district attorney]” (Def.’s Summ. J. Br., at 17) and, thus,
is not a qualified individual within the meaning of § 12111(8).
Although not addressed by the parties, a preliminary issue is whether the
prima facie case should include an evaluation of Plaintiff’s qualifications. The
Eleventh Circuit has observed that “the qualifications and experience that get a
candidate hired for a job and the performance that is satisfactory enough for her to
keep it are two different things.” Alvarez v. Royal Atl. Devs., 610 F.3d 1253, 1265
(11th Cir. 2010). When, as here, the employee’s performance “is bound up in the
inquiry into whether [his or employer]’s proffered reason . . . was a pretext for
discrimination,” the court may defer consideration of the employee’s performance
until the pretext stage of the McDonnell Douglas analysis. See id.; see also
Holifield v. Reno, 115 F.3d 1555, 1562 n.3 (11th Cir. 1997) (deferring
consideration of plaintiff’s job performance to pretext stage of litigation). The
court will exercise the deferral option here.
(iii)

Whether Plaintiff Was Constructively Discharged

The third element of the prima facie case requires the employee to show that
he or she “has suffered an adverse employment action.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005).

An adverse employment action is one that a

reasonable person would find causes a “serious and material change in the terms,
33

conditions, or privileges of employment.” Davis v. Town of Lake Park, 245 F.3d
1232, 1238–39 (11th Cir. 2001).
Defendant does not dispute that had Plaintiff accepted one of the two
employment options he offered her in January 2013, she would have suffered a
loss in pay, benefits, and responsibilities. (See Def.’s Dep., at 125 (confirming that
each option was a “demotion”)); see also Crawford v. Carroll, 529 F.3d 961, 970–
71 (11th Cir. 2008) (“An adverse employment action may be an ultimate
employment decision, such as ‘termination, failure to hire, or demotion.’”
(emphasis added)). But, as Defendant points out, she accepted neither option.
Defendant argues that instead, Plaintiff voluntarily resigned because she knew that
she no longer fulfilled “the basic requirements of an [Assistant District Attorney]”
and that a voluntary resignation is not an adverse employment action. (Def.’s
Summ. J. Br., at 18.) Plaintiff disagrees, contending that she was forced to resign
because the two options presented to her for part-time, non-supervisory
employment were degrading and humiliating.
The issue is whether Plaintiff’s resignation was voluntary or tantamount to a
constructive discharge. A constructive discharge occurs when working conditions
are “so intolerable that a reasonable person in [the employee’s] position would
have been compelled to resign.” Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d
974, 977 (11th Cir. 2003) (citation and internal quotation marks omitted). The
34

Eleventh Circuit has observed that “[e]mployees may be constructively discharged
by a demeaning demotion or transfer.” Stamey v. S. Bell Tel. & Tel. Co., 859 F.2d
855, 860 n.11 (11th Cir. 1988); see also Pa. State Police v. Suders, 542 U.S. 129,
134 (2004) (“[A]n employer-sanctioned adverse action,” such as a “humiliating
demotion,” can qualify as a constructive discharge.).
The parties have not addressed the cases discussing constructive discharge
as an adverse employment action. Nonetheless, on this record, a reasonable jury
could find that a demotion to part-time, non-supervisory prosecutorial work in
juvenile court would be demeaning to a supervising assistant district attorney with
almost a decade of experience prosecuting felony cases. Not only did each option
constitute a loss in pay, benefits, responsibilities, and arguably clout, each option
also was temporary, ultimately resulting in Plaintiff’s separation from employment.
A reasonable jury could conclude that the two employment options merely were a
prologue to termination and that the temporary duration of the employment
options, from a reasonable employee’s perspective, added to the intolerableness of
the working conditions.
In sum, the evidence creates a genuine dispute of material fact as to whether
Defendant constructively discharged Plaintiff. Accordingly, Plaintiff satisfies the
adverse employment action requirement of the McDonnell Douglas prima facie
case.
35

(iv)

Whether Plaintiff Was Constructively Discharged

Solely Because of Her Disability
Under the Rehabilitation Act, “[i]t is not enough for a plaintiff to
demonstrate that an adverse employment action was based partly on his [or her]
disability.” Ellis, 432 F.3d at 1326. A plaintiff also must demonstrate that he or
she “suffered an adverse employment action ‘solely by reason of’ his handicap.”
Id. (quoting § 794(a)).
Defendant contends that Plaintiff “has failed to show that her claimed
disability, her voice, was the sole reason for any adverse employment action.”
(Def.’s Summ. J. Br., at 20.) Defendant’s arguments with respect to whether
Plaintiff was subjected to an adverse employment action solely because of her
disability again merges with Defendant’s proffered legitimate, nondiscriminatory
reason for Plaintiff’s constructive discharge. As grounds for each, Defendant
contends that Plaintiff’s deteriorating job performance, not her voice, is the reason
her employment ended, but that, even if the evidence permits the inference that her
voice and her deteriorating job performance fueled the constructive discharge,
“even one legitimate reason precludes a finding that the Defendant was motivated
solely by reason of her disability.” (Def.’s Summ. J. Br., at 19.)
The tension resulting from the “dovetail[ing]” of the first two stages of the
McDonnell Douglas framework has been noted by the Sixth Circuit, which does
36

not engraft a causation requirement (i.e., discriminated against solely because of a
disability) into the McDonnell Douglas prima facie case in ADA cases:
“[W]hether the employee was, in fact, discharged because of the disability –
requires at the prima facie stage what the McDonnell Douglas burden-shifting
framework seeks to uncover only through two additional burden shifts, thereby
rendering that framework wholly unnecessary.” Whitfield v. Tennessee, 639 F.3d
253, 259 (6th Cir. 2011). One district court in the Eleventh Circuit also has
weighed in on this issue. See Brandon v. Lockheed Martin Aeronautical Sys., 393
F. Supp. 2d 1341 (N.D. Ga. 2005).

The Brandon court concluded that the

formulation of the McDonnell Douglas prima facie case in ADA cases in this
circuit “is incorrect because if a plaintiff has proved that he was discriminated
against because of his disability, he has actually proved his entire case (and he is
entitled to have judgment entered in his favor), not simply made a prima facie
showing.” Id. at 1345. Brandon observed nonetheless that, “[d]espite the way that
the Eleventh Circuit has articulated this prong of the test, that court has never
applied the prong as stated. Instead, the Eleventh Circuit has simply required a
plaintiff to present facts from which an inference of discrimination can be made (as
is true in all other discrimination cases).” Id. at 1346.
It is unnecessary to delve further into the tension noted by the Whitfield and
Brandon courts or to decide the type of proof that would be sufficient in this circuit
37

to satisfy the causation element of the prima facie case’s fourth element. That is
because Plaintiff survives summary judgment no matter at which stage of the
McDonnell Douglas framework the sole-causation evidence is examined. For
efficiency, the court will examine the evidence one time at the pretext stage. The
analysis proceeds, therefore, to the next stage of the McDonnell Douglas
framework.
(b)

Legitimate, Nondiscriminatory Reasons for the Constructive

Discharge
Defendant contends that it has offered “numerous legitimate, nondiscriminatory reasons for the challenged employment actions in this case.”
(Def.’s Summ. J. Br., at 19.) In his affidavit submitted in support of summary
judgment, Defendant has provided a detailed account of Plaintiff’s myriad postAugust 2009 job deficiencies that he says culminated in his decision to demote her
to part-time, non-supervisory employment.

(See Def.’s Aff., at 2–8.)

These

reasons focus on Plaintiff’s perceived memory loss, violations of office policy,
lack of professional judgment in handling cases with case agents and before the
grand jury, and ineptness in managing the office.
These reasons are not based upon Plaintiff’s speaking disability and are
legitimate and nondiscriminatory.

Accordingly, Defendant has satisfied his

intermediate burden under McDonnell Douglas.
38

(c)

Pretext

In her summary judgment response, Plaintiff sets out two principal bases for
establishing pretext. First, she relies on the recording of the January 30, 2013
meeting, arguing that the chief deputy specifically said that “her voice” was a real
concern with the judges. (Pl.’s Summ. J. Resp., at 6; Jan. 30, 2013 meeting (audio
recording).)

Second, Plaintiff points to the absence of contemporaneous

documentation in her personnel file of job performance problems and the absence
of documentation in her medical records of any memory loss. She contends that
“[t]he only documentation of any such [employment] problems is in affidavits
created by the Defendant and his witnesses or employees for the purposes of this
lawsuit and motion for summary judgment.” (Pl.’s Summ. J. Resp., at 13; see also
Pl.’s Summ. J. Resp., at 7 (arguing that there is no “contemporary documentation
to support Defendant’s alleged legitimate nondiscriminatory [reasons]”).)
Defendant contends that, at the very least, he has articulated at least one reason for
constructively discharging Plaintiff that is unrelated to her disability and that, if
both permissible and impermissible factors motivated the constructive discharge,
Plaintiff cannot demonstrate that the constructive discharge was “solely by reason
of” her disability.
It is true, as stated, that Plaintiff’s claim cannot survive under the
Rehabilitation Act on proof of dual motives for the adverse employment action, see
39

supra note 5. Plaintiff also cannot create a genuine dispute of material fact “by
simply quarreling” with the wisdom of Defendant’s belief that she no longer
performed her job competently. Chapman, 229 F.3d at 1030.

She can create a

genuine dispute of material fact as to pretext, though, if she can demonstrate
weaknesses or inconsistencies in the legitimate reason “so as to permit a rational
jury to conclude that the explanation given was not the real reason,” Rioux, 520
F.3d at 1279, but that disability discrimination was the sole reason. Plaintiff meets
that burden, albeit barely, based on the following evidence demonstrating
weaknesses and inconsistencies in the proffered legitimate reason focused on
inferior job performance.
First, “[a] plaintiff may establish pretext by showing that an employer’s
‘nondiscriminatory reasons were after-the-fact justifications, provided subsequent
to the beginning of legal action.’” Williams v. Ala. Dep’t of Transp., 509 F. Supp.
2d 1046, 1056 (M.D. Ala. 2007) (quoting Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000)). While Defendant’s affidavit
compellingly details myriad job performance deficiencies that legitimately would
warrant Plaintiff’s demotion and ultimate termination, the affidavit, which was
submitted as a summary judgment exhibit, is dated July 14, 2014, and, thus, postdates this litigation.

The timing of the affidavit raises a question as to its

motivation because none of the reasons articulated by Defendant in his post40

litigation affidavit were specifically mentioned to Plaintiff in January 2013, as a
reason for demoting Plaintiff to a temporary, part-time, non-supervisory position.
Additionally, there is evidence pre-dating Plaintiff’s constructive discharge that
arguably is inconsistent with Defendant’s post-litigation affidavit.

Namely,

Defendant’s affidavit recites a pattern of performance problems beginning not long
after Plaintiff’s return to work in 2009, and continuing until January 2013, but
there also is evidence that, during the midst of Plaintiff’s alleged deteriorating job
capabilities, Plaintiff received a special merit-based pay raise, which Defendant
told Plaintiff was well deserved. (Mar. 23, 2011 email (Pl.’s Ex. 6).)
Moreover, Defendant has not pointed to any writing created prior to
Plaintiff’s constructive discharge that documents concerns with Plaintiff’s job
performance. (See, e.g., Def.’s Dep., at 126 (admitting that he did not document
the “things” he “named” that Plaintiff “allegedly had problems with, including
alleged memory issues”).) Although the lack of contemporaneous documentation
does not appear to be a procedural irregularity in Defendant’s practices and may
not be sufficient by itself to establish pretext, it is noteworthy that Defendant’s
post-litigation affidavit does not find corroboration in the pre-termination written
record.

It is the cumulative effect of the foregoing evidence that reveals

weaknesses and inconsistencies in the legitimate reasons and creates a jury issue as
to whether the reasons Defendant articulated in his affidavit about Plaintiff’s
41

performance problems “are the true reasons for the demotion or merely are
‘pretextual post hoc justifications’ submitted in defense of this litigation.”
Williams, 509 F. Supp. 2d at 1056 (quoting Santiago-Ramos, 217 F.3d at 56).
Second and relatedly, “an employer’s failure to articulate clearly and
consistently the reason for [the adverse employment action] may serve as evidence
of pretext.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298
(11th Cir. 2006). It is true that Chief Deputy Robinson, whom Defendant tasked to
inform Plaintiff of her employment fate in January 2013, mentioned that there was
other “stuff,” but he did not articulate the specifics of that “stuff,” other than to say
that it was more than Plaintiff’s personality conflict with the grand jury
administrator.

As stated, the chief deputy did not inform Plaintiff that her

demotion was based upon any of the detailed reasons Defendant subsequently set
out in his summary-judgment affidavit, nor did the chief deputy mention Plaintiff’s
alleged memory loss that is emphasized by Defendant, Ms. Stone, and others. The
vagueness of the other “stuff” Chief Deputy Robinson conveyed to Plaintiff at the
time of the adverse employment action creates a genuine dispute for trial as to
whether the other “stuff” encompasses a true reason for Plaintiff’s constructive
discharge.
Third, there is evidence that Plaintiff’s voice was a consideration in her
constructive discharge. During the January 2013 meeting, Chief Deputy Robinson
42

devoted substantial discussion to Plaintiff’s voice. The chief deputy emphasized
the dashed hopes that her voice would “get better” and the judges’ “concerns”
about her voice, and emphasized that her voice was an impediment to her
courtroom responsibilities. While Defendant says in his affidavit and confirms in
his deposition that he “would never have allowed for [Plaintiff] to be terminated
simply because of her vocal issues” (Def.’s Aff., at 6; Def.’s Dep., at 126–27), he
does not address the arguable link between the chief deputy’s statements to
Plaintiff that “[i]t’s just not working out” and that the judges have “concerns about
your voice.” (Jan. 30, 2013 meeting (audio recording).) The statements made by
Defendant’s chief deputy to Plaintiff during the January 2013 meeting about her
voice cannot be ignored; they conflict with Defendant’s attempt to disclaim
reliance on Plaintiff’s disability and raise a genuine dispute as to whether
Plaintiff’s disability is the sole reason that prompted Defendant’s decision to
adversely affect her employment.
The summary judgment record in its totality raises a genuine dispute of
material fact as to whether Defendant’s nondiscriminatory reasons for
constructively discharging Plaintiff are false and whether disability discrimination
is the real and sole reason for Defendant’s decision. See Brooks, 446 F.3d at 1163;
§ 794(a). At the same time, Plaintiff faces a challenging trial burden in light of the
Rehabilitation Act’s sole-causation standard and the depth of the evidence from
43

multiple individuals recounting Plaintiff’s deteriorating job performance. For now,
Plaintiff has submitted evidence that precludes summary judgment on her
disability discrimination claim alleging a constructive discharge. Accordingly,
Defendant’s motion for summary judgment on this claim is due to be denied.
B.

Retaliation Under the Rehabilitation Act
The Rehabilitation Act “incorporates the anti-retaliation provision from

§ 12203(a) of the ADA.” Morales v. Ga. Dep’t of Human Res., Div. of Family &
Children, 446 F. App’x 179, 183 (11th Cir. 2011); see also §§ 791(g), 793(d),
794(d).11 The ADA’s anti-retaliation provision provides that “[n]o person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter.”

42 U.S.C. § 12203(a).

In turn,

“[r]etaliation claims under the ADA are analyzed under the framework of Title
VII.” Morales, 446 F. App’x at 183. Accordingly, as the Eleventh Circuit has
observed, “We assess retaliation claims pursuant to the Rehabilitation Act under
the framework we use in assessing Title VII retaliation claims.” Burgos-Stefanelli
v. Sec’y, U.S. Dep’t of Homeland Sec., 410 F. App’x 243, 245 (11th Cir. 2011).

11

Section 794(d) provides:

The standards used to determine whether this section has been violated in a
complaint alleging employment discrimination under this section shall be the
standards applied under title I of the Americans with Disabilities Act of 1990 (42
U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and
12210), as such sections relate to employment.
44

Because the evidence submitted is circumstantial, Plaintiff’s retaliation
claims also are governed by the McDonnell Douglas tripartite burden-shifting
framework. Under the first part, a plaintiff makes a prima facie case of retaliation
by showing that “(1) she engaged in an activity protected under [the Rehabilitation
Act],” (2) “she suffered an adverse employment action,” and (3) “there was a
causal connection between the protected activity and the adverse employment
action.” Crawford, 529 F.3d at 970. Defendant contends that Plaintiff cannot
demonstrate elements (1) and (2) of the prima facie case.
1.

Protected Activity

Defendant contends that Plaintiff has failed to demonstrate “a single
protected activity or expression that she engaged in to serve as the basis for any
possible retaliation claim.” (Def.’s Summ. J. Reply, at 13 (Doc. # 25); see also
Def.’s Summ. J. Br., at 22–23 (contending that “Plaintiff cannot recall any specific
complaints that she made”).) Plaintiff responds that she engaged in protected
activities

by

(1) “complaining

about

disability

discrimination”

and

by

(2) “opposing the harassment [ ] by supervisors about her health.” (Pl.’s Summ. J.
Resp., at 15.) The evidence upon which Plaintiff relies does not support her broad
contentions.
Plaintiff provides a string citation to her deposition testimony (three pages of
it) and the two audio recordings from the May 2012 and January 2013 meetings,
45

but without any analysis. She points to nothing in those evidentiary sources that
shows that she complained about or opposed discrimination or harassment. The
deposition transcript pages upon which she relies focus on the January 2013
meeting and the humiliation she endured when Defendant did not give her the
“common courtesy” to confront her directly with the two alternative employment
options for nonsupervisory, part-time employment for a limited duration. (Pl.’s
Dep., at 57–59.) There is no testimony contained in those three pages where
Plaintiff said, “‘Stop it.’” (Pl.’s Summ. J. Resp., at 15 (stating that “an employee’s
exclamation ‘Stop it’ or ‘I oppose it’ when made about discriminatory conduct is
sufficient to invoke the protections of the ‘Opposition’ clause,” but citing no
examples in the record where she made similar statements).) In fact, during her
deposition, Plaintiff was unable to articulate any protected activities in which she
engaged during her employment. When asked, she merely responded that she was
a “criminal lawyer,” not a lawyer with expertise in employment law. (Pl.’s Dep.,
at 114.)
Moreover, Plaintiff does not give one example of when or how she
complained or opposed unlawful discrimination or harassment during the May
2012 or January 2013 meetings.

Instead, in her brief in the “facts” section,

Plaintiff recites only what was said to her during these meetings. She does not
indicate what she said during those meetings that she now contends qualifies as
46

protected activity on her part, and it is beyond the proper role of the court on
summary judgment to guess what Plaintiff is attempting to argue qualifies as
protected activity. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (“[T]he onus is upon the parties to formulate arguments [on
summary judgment].”). Accordingly, the retaliation claims fail because Plaintiff
has not raised a genuine dispute of material fact that she engaged in any protected
activity.
2.

Adverse Employment Action

Defendant also contends that Plaintiff cannot show an adverse employment
action to support her retaliation claims. To demonstrate an adverse employment
action, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse,” meaning that the action “might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (defining adverse employment action under Title VII’s anti-retaliation
provision).
The Complaint’s retaliation count (Count II) alleges the following adverse
employment actions: Defendant (1) “refused to permit [Plaintiff] to take FMLA
leave” [Family and Medical Leave Act]; (2) “directed [Plaintiff] to continue
working when he needed to exercise her right to an accommodation”; (3) “denied
47

[Plaintiff’s]

accommodation

consisting

of

provision

of

a

microphone;

(4) “disciplined [Plaintiff] for using medical leave”; (5) “threatened and
intimidated

[Plaintiff]

for

using

medical

leave

and

for

requiring

an

accommodation”; and (6) “ended [Plaintiff’s] employment by forcing her to
resign.” (Compl. ¶ 69; see also Pl.’s Summ. J. Resp., at 15.) Each action in
(1) through (6) is treated as supporting a separate retaliation claim and is referred
to as a “claim” below.
Plaintiff cannot survive summary judgment by resting on the allegations of
her Complaint, but instead she must set forth evidence that shows a genuine
dispute of material fact. See Celotex, 477 U.S. at 324. She has failed to set forth
such evidence with respect to claims (1), (2), (3), (4), and (5) and, thus, for this
additional reason, those retaliation claims fail.12
(a)

Claim (1)

Claim (1) fails because Plaintiff has not pointed to any evidence to
substantiate the allegation that she was subjected to an adverse employment action.
In the Order on Pretrial Hearing, Plaintiff stipulates that she “was provided with all
the leave she requested and was never denied leave.” (Order on Pretrial H’rg,
at 4.) She similarly admitted during her deposition that Defendant never refused
any of her requests for leave (Pl.’s Dep., at 34), and, additionally, the record shows
12

It is presumed that a constructive discharge qualifies as an adverse employment action
under the retaliation framework, but Plaintiff points to no protected activity that was the impetus
for the constructive discharge.
48

that Defendant liberally gave Plaintiff leave and benefits to accommodate her
Plaintiff’s allegations that Defendant

medical appointments and surgeries.

disallowed her to take FMLA leave are directly refuted by the evidence and her
stipulation. Plaintiff is left with an unsupported allegation and an argument in a
brief.

See United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002)

(“[A]rguments in brief are not evidence.”). Because Plaintiff has not raised a
genuine dispute of material fact that she was subjected to an adverse employment
action, claim (1) fails.
(b)

Claims (2) and (3)

Claims (2) and (3) are problematic because Plaintiff has not pointed to any
evidence raising a genuine dispute of material fact that Defendant denied her
requested accommodation. To the contrary, Plaintiff concedes that Defendant
provided her the only accommodation she requested: an amplification system in
the courtroom. (See Pl.’s Dep., at 39–40 (answering in the affirmative when asked,
“So the accommodation you needed, which was a microphone and an amplification
system, he provided; is that correct?”); see also Pl.’s Dep., at 36–37, 45, 53.)
Without evidence to substantiate these alleged adverse employment actions,
summary judgment is due to be entered in Defendant’s favor on claims (2) and (3).

49

(c)

Claim (4)

The adverse employment action underlying claim (4) is that Defendant
disciplined Plaintiff for using medical leave. In her summary judgment response,
Plaintiff does not explain or give an example of how she contends she was
disciplined, nor does she provide any citation to evidence of any disciplinary
measures imposed against her for using medical leave. Her deposition testimony
reveals the contrary. When asked about “discipline,” Plaintiff admitted that she
“never lost pay,” never lost benefits,” “never was asked to take leave without pay,”
and was “never denied leave.” (Pl.’s Dep., at 111.) Plaintiff fails, therefore, to
raise a genuine dispute of material fact that she was disciplined for using medical
leave.
(d)

Claim (5)

As grounds for claim (5), Plaintiff alleges that she was “threatened and
intimidated . . . for using medical leave and for requiring an accommodation.” The
adverse employment actions underlying claim (5), therefore, are threats and
intimidation. Plaintiff’s summary judgment response again is bereft of any citation
to the record of evidence that she contends amounts to threats and intimidation.
Without providing the nature of the threats and intimidation, Plaintiff fails to
present a factual foundation for evaluating whether the threats and intimidation

50

would dissuade a reasonable employee from engaging in protected activity. 13 See
Burlington, 548 U.S. at 68. Plaintiff fails to demonstrate an adverse employment
action to support claim (5).
C.

Hostile Work Environment (Disability-Based and Retaliatory-Based)
Defendant argues that Plaintiff cannot make out a prima facie case of a

disability-based or retaliatory-based hostile work environment claim.

In an

unpublished opinion, the Eleventh Circuit has analyzed a hostile work environment
claim under the Rehabilitation Act, borrowing the elements from the Title VII
13

Defendant’s summary judgment brief points out that Plaintiff testified at her deposition
that, although Defendant always granted her leave requests, he used a “tone” when she asked for
medical leave. (Def.’s Summ. J. Br., at 8 (citing Pl.’s Dep., at 108 (mentioning Defendant’s
“tone” when asked how she had been “threatened and intimidated and discouraged from using
medical leave”).) Plaintiff does not rely on this evidence in her summary judgment response.
She also does not cite any authority that Defendant’s “tone” would be sufficient to demonstrate
an adverse employment action. The argument is deemed abandoned and, alternatively, lacks
support in case law.
Plaintiff also contends that Defendant threatened and intimidated her for requiring an
accommodation. The court is cognizant that, in this circuit, an employee engages in statutorily
protected activity in requesting an ADA accommodation if he or she “had a good faith,
objectively reasonable belief that he [or she] was entitled to those accommodations under the
ADA.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998); see also Kelley
v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013) (“Requesting an accommodation is
protected conduct under the ADA’s retaliation provision.”). Even if Plaintiff had argued that her
request for a microphone in the courtrooms was protected activity, Plaintiff points to no factual
basis, as discussed, that any threats or intimidation followed this request, which Defendant
undisputedly granted. As to the constructive charge, the sole adverse employment action that
finds factual support in the record, it occurred on January 30, 2013, almost a year after Plaintiff
requested a microphone in the courtrooms upon her reassignment to Chilton County in February
2012. Plaintiff does not attempt to link her request for a microphone to her constructive
discharge and appropriately so. Under Eleventh Circuit case law, “[e]ven a three-month interval
between the protected expression and the employment action . . . is too long” to establish
causation for purposes of the prima facie case. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160,
1182 (11th Cir. 2010); see also Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004)
(holding that, by itself, three months was insufficient to prove causation on a retaliation claim).
51

playbook. Burgos, 274 F. App’x at 842. The court will do the same. A plaintiff
makes out a prima facie case of hostile work environment by showing
(1) that she belongs to a protected group; (2) that she was subjected to
unwelcome harassment or retaliation; (3) that the harassment or
retaliation was based upon a protected characteristic . . . ; (4) that the
harassment or retaliation was sufficiently severe or pervasive to alter
the terms and conditions of her employment; and (5) there is a basis
for holding her employer liable.
Manley v. Dekalb Cnty. Ga., ___ F. App’x ___, 2014 WL 4346815 (11th Cir.
2014) (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002)); see also Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012) (holding
as a matter of first impression that “this circuit recognizes a cause of action for
retaliatory hostile work environment” under Title VII).
1.

Disability-Based Hostile Work Environment

Defendant contends that there is no evidence that he or any of his employees
were “mean or hostile” to Plaintiff on the basis of her disability (Def.’s Summ. J.
Br., at 17), and that, when asked at her deposition, Plaintiff could not provide any
examples of incidents establishing that she was subjected to a hostile work
environment on the basis of her disability (Def.’s Summ. J. Reply, at 2, 12).
Defendant’s arguments hammer directly on the fourth element.
In her summary judgment response, Plaintiff does not address the elements
of a hostile-work-environment claim based upon a disability or “formulate
arguments” about this claim, which she is required to do on summary judgment.
52

Resolution Trust Corp., 43 F.3d at 599. Rather, she says in cursory fashion that
there are audio “recordings of the harassment by supervisors regarding her health.”
(Pl.’s Summ. J. Resp., at 13; see also Pl.’s Summ. J. Resp., at 3 (facts section)
(referring generically to the audio recordings of the May 2012 and January 2013
meetings as revealing the “threaten[ing]” and demeaning workplace to which she
was subjected).) Elsewhere in her brief, Plaintiff describes the May 2012 meeting
as a “46[-]minute verbal harassment and rant . . . almost entirely about her health.”
(Pl.’s Summ. J. Resp., at 5–6.) This evidence fails to raise a genuine dispute of
material fact as to the severe-or-pervasive element’s objective component.
Under the fourth element of the prima facie case, the plaintiff’s workplace
must have been “permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted);
Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (same). The objective
component of the fourth element takes into consideration the allegedly
discriminatory or retaliatory conduct’s “frequency; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” 14 Reeves v. C.H.
14

There also is a subjective component, which in light of the court’s findings need not be
addressed. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (The victimized
53

Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010) (en banc) (quotation
marks and ellipses omitted). The objective severity or pervasiveness “should be
judged from the perspective of a reasonable person in the plaintiff’s position.” Id.
A review of the audio recordings and the entire summary-judgment record
points to the conclusion that, from an objective standpoint, no reasonable jury
could find that Plaintiff’s office environment was saturated with discriminatory
conduct that was sufficiently severe or pervasive as to alter the conditions of
Plaintiff’s employment and create a hostile working environment. Plaintiff points
to no evidence that Defendant ridiculed or insulted her based upon her disability or
that he or his employees physically threatened Plaintiff. Plaintiff focuses on Ms.
Stone’s comments during the May 2012 meeting and the treatment she endured
during the January 2013 meeting. While some of the comments made in the May
2012 and January 2013 meetings plainly were based upon Plaintiff’s disability and
perhaps were directed toward Plaintiff through “screaming” (Pl.’s Dep., at 101),
the comments made during these two meetings held eight months apart and over
the course of Plaintiff’s nearly four-year employment after her August 2009
hospitalization do not rise to the level of severe or pervasive as a matter of law.

employee “must subjectively perceive the harassment as sufficiently severe [or] pervasive to
alter the terms or conditions of employment, and this subjective perception must be objectively
reasonable.” (citation and internal quotation marks omitted)).
54

2.

Retaliatory Hostile Work Environment

For at least three reasons, Plaintiff’s retaliatory hostile work environment
claim fails. First, a retaliatory hostile work environment claim requires evidence
that the employer subjected the employee to a hostile work environment in
retaliation for the employee’s protected activity.15 See Gowski, 682 F.3d at 1312.
In Part IV.B.2., the court found that Plaintiff has not shown that she engaged in any
activity protected by the Rehabilitation Act; therefore, her retaliatory hostile work
environment claim also must fail. Second, Plaintiff points to no evidence of any
actions that “were sufficiently severe or pervasive to alter the terms and conditions
of employment,” as discussed above, which is an additional reason why her
retaliatory hostile work environment claim cannot survive summary judgment.
Third, the totality of Plaintiff’s argument is that she suffered “a hostile work
environment as a result of her having complained of disability discrimination.”
(Pl.’s Summ. J. Resp., at 1.) Such a cursory argument cannot support a claim.
3.

Summary

It is Plaintiff’s burden to demonstrate a prima facie case, see Freeman v.
City of Riverdale, 330 F. App’x 863, 865 (11th Cir. 2009), and Defendant properly
has employed the summary judgment procedure to show that Plaintiff “cannot
produce admissible evidence to support” claims for a retaliatory and disability15

For purposes of this opinion, it is assumed, without deciding, that a retaliatory hostile
work environment claim is cognizable under the Rehabilitation Act.
55

based hostile work environment, Fed. R. Civ. P. 56(c)(1)(B).

Accordingly,

Plaintiff’s hostile work environment claims cannot survive summary judgment
under the Rehabilitation Act, and Defendant’s motion for summary judgment will
be granted on these claims.
V. CONCLUSION
For the foregoing reasons, it is ORDERED that Defendant’s motion for
summary judgment (Doc. # 16) is GRANTED in part and DENIED in part as
follows:
(1)

GRANTED on Plaintiff’s disability discrimination claim alleging the

denial of a reasonable accommodation;
(2)

DENIED on Plaintiff’s disability discrimination claim alleging

constructive discharge;
(3)

GRANTED on Plaintiff’s retaliation claims; and

(4)

GRANTED

on

Plaintiff’s

hostile

work

environment

claims

(disability-based and retaliatory-based).
DONE this 3rd day of November, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

56