Wedgeworth v. McDonough

Filing 50

MEMORANDUM OPINION AND ORDER-For the reasons stated within, the court DENIES the defendant's summary judgment motion 42 as to the plaintiff's failure to accommodate claim. However, the court GRANTS the defendant's summary judgment 42 as to the plaintiff's discriminatory discharge claim and DISMISSES that claim WITH PREJUDICE. Signed by Magistrate Judge Staci G Cornelius on 03/07/2025. (AKD)

FILED
2025 Mar-07 AM 09:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JUANICCA WEDGEWORTH,
Plaintiff,
v.
DENIS MCDONOUGH,
Defendant.

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Case No. 2:22-cv-00266-SGC

MEMORANDUM OPINION & ORDER 1
This is an employment discrimination case.

The plaintiff, Juanicca

Wedgeworth, asserts claims for violation of the Rehabilitation Act of 1973, 29
U.S.C. § 701, et seq. (the “Rehabilitation Act”), against Denis McDonough, the
Secretary of Veterans Affairs.

(Doc. 5). 2

More specifically, she claims the

defendant failed to accommodate, and then terminated her employment because of,
her disability.3 The case is before the court on the defendant’s motion for summary
1

The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 14).
2

Citations to the record refer to the document and page numbers assigned by the court’s CM/ECF
electronic document system and appear in the following format: (Doc. __ at __).
3

The defendant construes the amended complaint as asserting claims under both the Rehabilitation
Act and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the “ADA”).
(Doc. 42 at 14-15). The court construes the amended complaint as asserting claims under only the
Rehabilitation Act. However, the court notes that, if the plaintiff had asserted claims under the
ADA, the claims would fail. The ADA prohibits private employers with more than 15 employees
and state and local governments from discriminating against an employee on the basis of her
disability, see 42 U.S.C. §§ 12111(2) and (5), 12112(a), 12131(1), 12132, while the Rehabilitation

judgment. (Doc. 42). The parties have briefed the motion fully, and it is ripe for
review. (Docs. 42, 44, 47). For the reasons stated below, the court will deny the
motion as to the plaintiff’s failure to accommodate claim, but the court will grant the
motion as to the plaintiff’s discriminatory discharge claim and dismiss that claim
with prejudice.
I.

Standard of Review
Under Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, “[t]he [district]

court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party
seeking summary judgment bears the initial burden of informing the district court of
the basis for its motion and identifying those portions of the record the party believes
demonstrate the absence of a genuine dispute of material fact. Celotex Corp., 477
U.S. at 323. If the moving party carries its initial burden, the non-movant must go

Act prohibits such discrimination by federal executive branch agencies and recipients of federal
financial assistance, see 29 U.S.C. § 794(a). An employee of a federal agency, such as the U.S.
Department of Veterans Affairs, may assert a claim for disability discrimination under the
Rehabilitation Act but not the ADA. See Lymore v. Cooke, 2022 WL 45051, at *2 (M.D. Fla. Jan.
5, 2022); Moseley v. Boente, 2017 WL 476278, at *1 (S.D. Ga. Feb. 6, 2017); Brown v. Henderson,
2000 WL 362035, at *1 (S.D. Ala. Mar. 16, 2000). The court has explained this to the plaintiff in
a prior order. (Doc. 4 at 4).
2

beyond the pleadings and come forward with evidence showing there is a genuine
dispute of material fact for trial. Id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the
evidence is merely colorable or not significantly probative, summary judgment is
appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about
the facts should be resolved in favor of the non-movant, and all justifiable inferences
should be drawn in the non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
II.

Summary Judgment Facts 4
The plaintiff is a licensed social worker. (Doc. 43-2 at 4). The defendant

hired the plaintiff on September 15, 2019, to be a social worker in the Emergency
Department at the West Campus of the Central Alabama Veterans Health Care
System Medical Center in Montgomery, Alabama (the “VA emergency
department”). (Doc. 43-1 at 1). A social worker in the VA emergency department
assesses psychosocial problems of veterans presenting for treatment and connects
them with services that meet their needs. (Doc. 43-4 at 2-4). The plaintiff’s

4

The following facts are undisputed, unless otherwise noted. The court views the facts in the light
most favorable to the plaintiff, as the non-movant, and gives the plaintiff the benefit of all
reasonable inferences.
3

scheduled “tour of duty” was Thursday through Saturday, 7:00 A.M. to 7:30 P.M.,
and every other Sunday, 8:00 A.M. to 4:30 P.M. (Doc. 43-7 at 1). The plaintiff
commuted to the VA emergency department in Montgomery from her home in
Birmingham, Alabama. (Doc. 43-2 at 8). To retain her position, the plaintiff was
required to complete a one-year trial period (also described as a “probationary
period”) successfully. (Doc. 43-1 at 1).
In January 2020, the plaintiff began a pattern of “calling out” at the start of
her work week. (Doc. 43-5 at 2). Beginning in April 2020, the plaintiff’s direct
supervisor (Carrietta Pritchett-Stallworth) had multiple conversations with the
plaintiff about her attendance deficiencies. (Doc. 43-5 at 2). Pritchett-Stallworth
also provided written counseling to the plaintiff about her absences in memoranda
dated April 30, 2020, and July 31, 2020. (Doc. 43-5 at 2-3; Doc. 7; Doc. 8).
The plaintiff responded to the July 31, 2020 memorandum by disclosing in
writing diagnoses of anxiety and depression and explaining the conditions had been
triggered or exacerbated by the COVID-19 pandemic and several deaths in her
family. (Doc. 43-9 at 2). When deposed in connection with this case, the plaintiff
explained in greater detail how her anxiety and depression affect her. She testified
they make it difficult to get out of bed and tend to her personal hygiene and cause
her to experience preoccupations that hinder her ability to focus and communicate
with others, all of which in turn impede her ability to work. (Doc. 43-2 at 25-26,
4

35).
The plaintiff requested in her response to Pritchett-Stallworth’s July 31, 2020
memorandum a telework tour of duty for the duration of the pandemic, explaining
she believed that by teleworking she could eliminate the stress of commuting and
“uncertainties” associated with working in a healthcare setting during a global
pandemic. (Doc. 43-9 at 2-3; see also Doc. 43-2 at 41). She proposed she could
maintain communication with managers and co-workers from home using her VAissued cell phone and a VA-issued laptop and perform veteran psychosocial
assessments by videoconference. (Doc. 43-9 at 3). In her deposition, the plaintiff
insisted she could have performed all aspects of her job from her home in
Birmingham using these technologies. (Doc. 43-2 at 33, 41).
Pritchett-Stallworth replied that VA emergency department social workers are
not eligible for telework. (Doc. 43-5 at 4). An electronic timesheet summary for the
plaintiff includes the code “Telework Eligible Flag: F,” which counsel for the
defendant asserts is evidence corroborating Pritchett-Stallworth’s statement. (Doc.
42 at 6; Doc. 43-12 at 4). Counsel for the defendant also asserts a Veterans Health
Administration directive setting out policy for VA medical facility emergency
departments requires them to have a social worker on site 24 hours a day, 7 days a
week. (Doc. 42 at 6). To be more precise, the directive requires each emergency

5

department to have “on-site or on-call access to social work services . . . 24 hours a
day, 7 days a week.” (Doc. 42-13 at 17).
By the end of August 2020, the plaintiff had used 308 hours of leave,
excluding leave she took when she became infected with COVID-19. (Doc. 43-5 at
4; Doc. 43-6). Due to the plaintiff’s absences during her probationary period,
Pritchett-Stallworth recommended the plaintiff’s employment be terminated. (Doc.
43-5 at 4). The plaintiff was issued a termination letter on September 10, 2020.
(Doc. 43-16).
The plaintiff sought an administrative remedy for alleged disability
discrimination shortly after the termination of her employment.

After an

administrative law judge entered summary judgment in favor of the defendant, the
plaintiff commenced this action. (Docs. 1; 5; 10-1; 43-17; 43-18).
III.

Discussion
As stated, the Rehabilitation Act prohibits federal executive branch agencies,

such as the U.S. Department of Veterans Affairs, and recipients of federal financial
assistance from discriminating against disabled employees. A plaintiff establishes a
prima facie case of disability discrimination under the Rehabilitation Act by
showing (1) she has a disability, (2) she is a “qualified individual,” meaning she can
perform the “essential functions” of her job without accommodation or, failing that,
with a reasonable accommodation, and (3) her employer discriminated against her
6

“solely by reason of her [] disability.” 29 U.S.C. § 794(a); 42 U.S.C. § 12111(8);
Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017); Ellis v. England,
432 F.3d 1321, 1326 (11th Cir. 2005); Davis v. Florida Power & Light Co., 205 F.3d
1301, 1305 (11th Cir. 2000). 5 A plaintiff may satisfy the third prong of a prima facie
case of disability discrimination by showing either that her employer failed to
provide a reasonable accommodation for her disability or that her employer
subjected her to an adverse employment action, such as discharge, because of her
disability. Boyle, 866 F.3d at 1289.
A.

Disability Prong

To prove she has a disability within the meaning of the Rehabilitation Act, a
plaintiff must show (1) she has “a physical or mental impairment that substantially
limits one or more major life activities”; (2) she has a record of such an impairment;
or (3) she is “regarded as” having such an impairment, meaning her employer
perceives her as having such an impairment even if she does not actually have such
an impairment. 42 U.S.C. § 12102(1); Todd v. Fayette Cnty. Sch. Dist., 998 F.3d
1203, 1216 (11th Cir. 2021).

5

Discrimination claims proceeding under the Rehabilitation Act largely are governed by the same
standards as discrimination claims proceeding under the ADA, and cases decided under the ADA
are precedent for cases decided under the Rehabilitation Act. Cash v. Smith, 231 F.3d 1301, 1305
n.2 (11th Cir. 2000); Karantsalis v. City of Miami Springs, Fla., 17 F.4th 1316, 1321-22 (11th Cir.
2021). One notable exception is that the Rehabilitation Act requires that a plaintiff’s disability be
the “sole[]” reason for the discrimination, whereas the ADA requires only a lesser “but for”
standard of causation. § 794(a); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th
Cir. 2008).
7

Anxiety and depression are mental impairments within the meaning of the
Rehabilitation Act. Pritchard v. S. Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996)
(depression), amended in part on reh’g, 102 F.3d 1118 (11th Cir. 1996); Kelly v.
N.Y. State Off. of Mental Health, 200 F. Supp. 3d 378, 391 (E.D.N.Y. 2016) (anxiety
and depression).

Each constitutes a disability within the meaning of the

Rehabilitation Act if it substantially limits one or more major life activities, 42
U.S.C. § 12102(1), defined to include, as relevant here, “caring for oneself . . .
concentrating, thinking, communicating, and working,” 42 U.S.C. § 12102(2)(A).
“[E]xtensive analysis is not required to determine whether an individual’s
impairment is a disability under the [Rehabilitation Act].” EEOC v. St. Joseph’s
Hosp., Inc., 842 F.3d 1333, 1343 (11th Cir. 2016). “ ‘Substantially limits’ is not
meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(i).6 “An impairment
need not prevent, or significantly or severely restrict, the individual from performing
a major life activity in order to be considered substantially limiting.” § 1630.2(j)(ii).
Moreover, “an impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.” § 12102(4)(D). “[Eleventh
Circuit] precedent requires that a plaintiff’s evidence of disability include the timing,
frequency, and duration of [her] impairments to survive summary judgment.” Sugg

6

Courts, including the Eleventh Circuit, frequently refer to administrative regulations to assess
whether an impairment substantially limits a major life activity. Hilburn v. Murata Elecs. N. Am.,
Inc., 1220, 1226 (11th Cir. 1999).
8

v. City of Sunrise, 2022 WL 4296992, at *8 (11th Cir. Sept. 19, 2022) (citing Munoz
v. Selig Enters., Inc., 981 F.3d 1265, 1273-74 (11th Cir. 2020); Lewis v. City of
Union City, Ga., 934 F.3d 1169, 1180 (11th Cir. 2019)).
The defendant argues the plaintiff cannot prove her anxiety and depression
substantially limit a major life activity, directing the court to evidence he contends
shows the plaintiff is able to work and engage in activities outside of work. (Doc.
42 at 20-23). The defendant has mischaracterized some of this evidence or, at least,
omitted context critical to a fair reading of the evidence.7,8 Regardless, for purposes
of a disability discrimination claim, the question is not whether the plaintiff has a
disability that precludes her from working but, rather, whether the plaintiff has a
disability that substantially limits a major life activity, such as working. Some of
7

The defendant asserts the plaintiff testified during the administrative proceedings that she is able
to engage in normal life activities outside of work. (Doc. 42 at 20-21). When asked whether she
was able to engage in normal life activities outside of work, the plaintiff testified, “Yes, just not
so much right now. And like I said this started – or my anxiety increased in 2020. So, I haven’t
really done much outside of you know – trying to take care from (sic) work since the pandemic.
So, it’s kind of limited a little bit more right now.” (Doc. 43-3 at 8-9).
8

The defendant asserts the plaintiff testified when deposed that she is able to work. (Doc. 47 at
4). When asked whether she considered herself disabled for employment purposes, the plaintiff
responded:
For employment purposes, I am able to work. Normally, it just depends on the
circumstances. It depends on – and it’s a mental health disability; so its not
something that – it’s something that’s present and can be managed. However, there
are triggers with most mental health disabilities. So, you know, it depends on what
situation is in that particular person’s life, what the triggers are that will affect their
day-to-day movement, mobility, employment, and doing those things accurately
and efficiently.
(Doc. 43-2 at 25).
9

the evidence the defendant fairly characterizes as showing the plaintiff is able to
work is of limited utility, if any, to the defendant’s argument because the mere fact
she is able to work, standing alone, does not necessarily show the plaintiff’s ability
to work is without substantial limitation. Finally, and most importantly for purposes
of the pending motion, insofar as the evidence the defendant cites does tend to show
the plaintiff’s major life activities are not substantially limited by her anxiety and
depression, the evidence does not entitle the defendant to summary judgment on the
disability prong of the plaintiff’s prima facie case because there is other evidence
tending to show the contrary.
That evidence is the plaintiff’s response to Pritchett-Stallworth’s July 31,
2020 memorandum and her deposition testimony in this case, in which the plaintiff
asserts she experiences episodes of anxiety and depression and that the episode she
experienced in 2020 was triggered or exacerbated by the COVID-19 pandemic. The
plaintiff testified her anxiety and depression affect her ability to care for herself,
insofar as they make it difficult to get out of bed and tend to her personal hygiene,
and hinder her ability to focus and communicate with others, insofar as she
experiences preoccupations secondary to her mental illness. (Doc. 43-2 at 25-26,
35). Insofar as getting out of bed was an obvious prerequisite to the plaintiff’s
commute from Birmingham to Montgomery and presence in the VA emergency
department, tending to basic personal hygiene is necessary to present as appropriate
10

in the workplace, and focusing and communicating with others are requirements of
any job, a reasonable inference is that the limitations imposed on the plaintiff by her
anxiety and depression compromised the performance of her job functions as a VA
emergency department social worker. Additional evidence of the impact of the
plaintiff’s anxiety and depression on her ability to work includes the 308 hours of
leave she used over the course of the single year she worked at the VA emergency
department. (See Doc. 43-5 at 4; Doc. 43-6). 9 That evidence also speaks to the
frequency with which the plaintiff experienced impairing levels of anxiety and
depression during her 2020 episode, and the fact that the plaintiff requested an
accommodation for her mental illness for the duration of the pandemic permits the
inference she expected her symptoms to last for that duration. A reasonable jury
could find, based on this evidence, that the plaintiff’s anxiety and depression
substantially limit her ability to work. 10

9

The defendant asserts that in Hilburn the Eleventh Circuit held absences totaling approximately
100 days between 1989 and 1992 did not demonstrate a substantial limitation on the plaintiff’s
major life activity of working. (Doc. 47 at 4). A more complete statement would be that the
appeals court held the absences, the first period of which were accrued when the plaintiff suffered
a heart attack, did not demonstrate a substantial limitation on the plaintiff’s ability to work because
the plaintiff had not connected the absences to any residual effects of her heart problems. See
Hilburn, 181 F.3d at 1229. The plaintiff here has connected her absences to her anxiety and
depression. Therefore, Hilburn is inapposite.
10

In addition to challenging the plaintiff’s ability to show she has a physical or mental impairment
that substantially limits one or more life activities, the defendant challenges the plaintiff’s ability
to prove disability under the “record of impairment” or “regarded as” prongs of the definition.
Having concluded there is sufficient evidence for the plaintiff’s claims to survive summary
judgment on the issue of whether she has a physical or mental impairment that substantially limits
11

B.

Qualified Individual Prong

As stated, to prove she is a qualified individual, a plaintiff must show she can
perform the essential functions of her job without accommodation or, failing that,
with a reasonable accommodation. An accommodation, in turn, is reasonable only
if it enables an employee to perform the essential functions of her job. Holly v.
Clairson Indus., L.L.C., 492 F.3d 1247, 1256 (11th Cir. 2007). This is another way
of saying the Rehabilitation Act does not require an employer to eliminate an
essential function of an employee’s job to accommodate the employee’s disability.
Id.
“Determining whether a particular job duty is an essential function involves a
factual inquiry to be conducted on a case-by-case basis.” Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1258 (11th Cir. 2001). A court may consider an employer’s
judgment as to whether a function is essential, a written description of the job, the
amount of time spent on the job performing the function, the consequences of not
requiring the employee to perform the function, the terms of a collective bargaining
agreement, the work experience of past employees in the position, and the current
work experience of employees in similar positions. 42 U.S.C. § 12111(8); 29 C.F.R.
§ 1630.2(n)(3); Bagwell v. Morgan Cnty. Comm’n, 676 F. App’x 863, 865-66 (11th

one or more life activities, the court declines to consider whether the plaintiff can prove disability
under the “record of impairment” or “regarded as” prongs.
12

Cir. 2017).
An employer’s judgment as to whether a function is essential is entitled to
“substantial weight” but is not “conclusive” of the matter. Holly, 492 F.3d at 1258
(internal quotation marks omitted and alteration adopted). Relatedly, while a job
description is a relevant factor in the essential function analysis, “ ‘an employer may
not turn every condition of employment which it elects to adopt into a job function,
let alone an essential job function, merely by including it in a job description.’”
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003) (quoting
Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1071 (9th Cir. 2000), rev’d on other
grounds, 536 U.S. 73 (2002)). If an employer’s judgment was conclusive or its job
description beyond question, “an employer that did not wish to be inconvenienced
by making a reasonable accommodation could, simply by asserting that the function
is ‘essential,’ avoid the clear [] mandate [of the Rehabilitation Act].” Holly, 492
F.3d at 1258. An employer’s judgment as to whether a function is essential, or its
job description identifying a function as essential, may be successfully challenged
by evidence the function is not “ ‘job-related, uniformly enforced, or consistent with
business necessity.’” Brown v. Austin, 13 F.4th 1079, 1086 (10th Cir. 2021) (quoting
Mason v. Avaya Comms., Inc., 357 F.3d 1114, 1119 (10th Cir. 2004)) (alteration
adopted).
The plaintiff here proposed one accommodation: that she be allowed to
13

telework. 11,12

The defendant argues the proposed accommodation was not

reasonable because in-person presence in the VA emergency department is an
essential component of the job of a VA emergency department social worker. (Doc.
42 at 25-30). The defendant cites Pritchett-Stallworth’s affidavit testimony, the
plaintiff’s electronic timesheet summary, and the Veterans Health Administrative
directive setting out policy for VA medical facility emergency departments in
support of the argument. (Doc. 42 at 27). The court is not persuaded the defendant’s
evidence shows in-person presence at the VA emergency department is an essential
component of the job of a VA emergency department social worker.
Counsel for the defendant asserts in the defendant’s summary judgment
motion that the Veterans Health Administration directive setting out policy for VA
medical facility emergency departments “specifically mandates that a [VA

11

The defendant asserts the plaintiff requested permission to telework not because of her anxiety
and depression but, rather, pursuant to a work-from-home policy implemented in connection with
the COVID-19 pandemic. (Doc. 47 at 8-9). A fair characterization of the plaintiff’s testimony
would be that she sought permission to telework under the COVID-19-era work-from-home policy
because of her anxiety and depression, which were triggered or exacerbated by the pandemic.
(Doc. 43-2 at 31-32).
12

The plaintiff asserts for the first time in her response to the defendant’s summary judgment
motion that in addition to requesting permission to telework, she “inquired about shift rotation.”
(Doc. 44 at 1). The court will not consider shift rotation as a second accommodation proposed by
the plaintiff. See Gilmour v. Gates, McDonald and Co., 482 F.3d 1312, 1315 (11th Cir. 2004) (“A
plaintiff may not amend her complaint through argument in a brief opposing summary
judgment.”); Mitchell v. Pilgrim’s Pride Corp., 817 F. App’x 701, 708 (11th Cir. 2020) (holding
district court did not err in refusing to consider allegations made for first time in response to
summary judgment motion because such response “can’t be used as a backdoor and unauthorized
attempt to amend [a] complaint.”).
14

emergency department] social worker be ‘on-site.’”

(Doc. 42 at 27).

That

characterization of the mandate is incomplete, at best. The directive requires every
VA emergency department to have “on-site or on-call access to social work
services.” (Doc. 42-13 at 17). Inclusion of the phrase “on-call access” suggests the
possibility that access to a social worker via telephone, e-mail, or videoconference
could satisfy the requirements of the directive.
As stated, the plaintiff’s electronic timesheet includes the code “Telework
Eligible Flag: F.” (Doc. 43-12 at 4). The only explanation for the meaning of the
code is the assertion made by counsel for the defendant in the defendant’s summary
judgment motion that the code means the plaintiff’s position was not eligible for
telework. (Doc. 42 at 6). However, an assertion made by counsel in a motion is not
evidence. Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980). The
assertion made by counsel here is not accompanied by any evidence as to the
meaning of the code, and the court is unwilling to assign meaning to the code absent
such evidence.
More to the point, the fact that a job is ineligible for telework does not
necessarily mean in-person presence at the job site is an essential function of the job,
as the term essential function is used in the Rehabilitation Act. An employer could
designate a job as ineligible for telework simply because allowing an employee in
the position to telework would inconvenience the employer. Even assuming the
15

code on the plaintiff’s electronic timesheet indicates the VA emergency department
social worker position is not eligible for telework, it says nothing of the reason why.
The same is true of Pritchett-Stallworth’s affidavit testimony. Pritchett-Stallworth
attested she told the plaintiff that VA emergency department social workers are not
eligible for telework, but she did not explain why VA emergency department social
workers are not eligible for telework and, more specifically, whether the ineligibility
is related to a function of the social worker position or service need of the VA
emergency department. (See Doc. 43-5 at 4). The defendant essentially asks the
court to infer from the ineligibility of a VA emergency department social worker for
telework that in-person presence at the VA emergency department is an essential
component of the job of a social worker in the department. The court cannot make
the inference because it is not the only reasonable inference available. See Sconiers
v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020) (“[I]f a reasonable jury could
make more than one inference from the facts, and one of those permissible inferences
creates a genuine issue of material fact, a court cannot grant summary judgment.
Rather, the court must hold a trial to get to the bottom of the matter.”) (internal
citation omitted).
In sum, the evidence submitted by the defendant does not demonstrate the
absence of a genuine dispute of material fact regarding the essential nature of a VA
emergency department social worker’s in-person presence in the VA emergency
16

department or, in turn, whether the plaintiff’s proposed accommodation that she be
allowed to telework was reasonable. The failure of the defendant, as the moving
party, to make this showing is a sufficient basis on which to deny the defendant’s
summary judgment motion on the second element of a failure-to-accommodate
claim. The non-moving party must come forward with evidence to support an
element of her claim challenged by the moving party only if the moving party carries
its initial burden. Celotex Corp., 477 U.S. at 324.
Nonetheless, the court notes the record contains evidence that would support
a determination in-person presence at the VA emergency department is not essential
to the job of a social worker assigned to the department and that allowing the plaintiff
to telework would have enabled the plaintiff to perform her job. That evidence is
the telework proposal the plaintiff submitted to Pritchett-Stallworth and the
plaintiff’s deposition testimony.

The plaintiff proposed she could maintain

communication with managers and co-workers from home using her VA-issued cell
phone and a VA-issued laptop and perform veteran psychosocial assessments by
videoconference. (Doc. 43-9 at 3).13 She testified she could have performed all

13

The defendant argues the plaintiff could not perform these aspects of her job outside the VA
emergency department. (Doc. 42 at 27-28). He marshals no evidence to support the argument and
seems to believe the “very nature” of the job functions makes it obvious they had to be performed
on site. (See Doc. 42 at 27-28). The court does not believe the nature of the plaintiff’s job
responsibilities, standing alone, demonstrates the absence of a genuine issue of fact as to whether
the plaintiff could fulfill the responsibilities anywhere other than on site in the VA emergency
department. Even if the nature of the responsibilities constitutes some evidence of an on-site
17

aspects of her job from her home in Birmingham using these technologies. (Doc.
43-2 at 33, 41). Finally, she explained allowing her to telework would help her do
her job, insofar as it would eliminate the stress of commuting and “uncertainties”
associated with working in a healthcare setting during a global pandemic. (Doc. 432 at 41; Doc. 43-9 at 3).
The court acknowledges the plaintiff’s evidence is, in large part, self-serving.
Some courts have held in the context of disability discrimination claims that an
employee’s self-serving testimony is insufficient to create a genuine issue of
material fact on summary judgment in light of an employer’s “overwhelming
evidence” to the contrary. See, e.g., Wells v. Shalala, 228 F.3d 1137, 1144 (10th
Cir. 2000). This holding is of no consequence here. As discussed, the defendant has
failed to come forward with evidence, let alone overwhelming evidence, in-person
presence in the VA emergency department is an essential component of the job of a
social worker assigned to the department. Regardless, the general rule in the
Eleventh Circuit is that self-serving testimony can create a genuine dispute of
material fact that defeats summary judgment. See, e.g., United States v. Stein, 881
F.3d 853, 857-58 (11th Cir. 2018).

presence requirement, there is evidence to the contrary (discussed above), thereby creating a
genuine issue of material fact for trial.
18

C.

Discrimination Prong
1.

Failure to Accommodate

Failure to provide a disabled employee with a reasonable accommodation
constitutes discrimination under the Rehabilitation Act, unless the accommodation
would impose an undue hardship on the employer. Holly, 492 F.3d at 1262. An
employer has the burden of showing an accommodation would impose an undue
hardship on it. Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 (11th Cir.
1997). As discussed above, there remains a genuine dispute of material fact as to
whether the plaintiff’s proposed accommodation that she be allowed to telework was
reasonable.

The defendant limited its argument to the reasonableness of the

proposed accommodation and did not attempt to show it would impose an undue
hardship on the VA emergency department. 14 The court will deny the defendant’s
summary judgment motion as to the plaintiff’s failure to accommodate claim. This
claim survives.
2.

Discriminatory Discharge

Disparate treatment occurs when a disabled employee “is singled out for
disadvantage because of her disability.” Forbes v. St. Thomas Univ., Inc., 768 F.

14

The defendant argues the plaintiff cannot satisfy the third prong of her failure to accommodate
claim because she was discharged because of her unacceptable attendance record during her
probationary period, not because of her anxiety or depression. (Doc. 42 at 30). This argument
goes to the plaintiff’s ability to make out a claim for discriminatory discharge, not the plaintiff’s
ability to make out a failure to accommodate claim.
19

Supp. 2d 1222, 1227 (S.D. Fla. 2010). Courts often evaluate this type of disability
discrimination claim using the framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Center v. Sec’y, Dep’t of Homeland Sec., Customs and
Border Protection Agency, 895 F.3d 1295, 1303 (11th Cir. 2018). 15 This framework
requires that, after a plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action at issue. Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1193 (11th Cir. 2004). The burden is one of production, not persuasion. Id.
The defendant need not persuade the court it actually was motivated by the reason
articulated. Id. If the defendant articulates a legitimate, non-discriminatory reason
for the adverse employment action, the burden returns to the plaintiff to show the
proffered reason is a pretext for discrimination. Id.; Phillips v. Legacy Cabinets, 87
F.4th 1313, 1321 (11th Cir. 2023). A reason is not a pretext for discrimination unless
it is shown both that the reason is false and that discrimination was the real reason.

15

The McDonnell Douglas burden-shifting framework applies only where, as here, a plaintiff
relies on circumstantial, as opposed direct, evidence to establish her claim. Moreover, the
McDonnell Douglas burden-shifting framework “is not the sine qua non” for a plaintiff to survive
summary judgment in relation to a discrimination claim based on circumstantial evidence. Sims
v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013). “Instead, ‘the plaintiff will always survive
summary judgment if [s]he presents circumstantial evidence that creates a triable issue concerning
the employer’s discriminatory intent.’” Id. (quoting Smith v. Lockheed Martin Corp., 644 F.3d
1321, 1328 (11th Cir. 2011)). “A triable issue of fact exists ‘if the record, viewed in the light most
favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination by the decisionmaker.’” Id. (quoting Smith, 644 F.3d at
1328).
20

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Hornsby-Culpepper v.
Ware, 906 F.3d 1302, 1312 (11th Cir. 2018).
The defendant asserts the plaintiff’s employment was terminated because of
her unacceptable attendance record during her probationary period. (Doc. 42 at 31;
Doc. 43-5 at 4; Doc. 43-16).

An employee’s absences, including (perhaps,

especially) those accrued during a probationary period, constitute a legitimate, nondiscriminatory reason for discharging the employee. Patterson v. Georgia Pac.,
LLC, 38 F.4th 1336, 1352-53 (11th Cir. 2022); Hunter v. Mobis Ala., LLC, 559 F.
Supp. 2d 1247, 1258 (M.D. Ala. 2008). The plaintiff has failed to show the reason
is pretext for discrimination.16
The plaintiff claims in her response to the defendant’s summary judgment
motion that Pritchett-Stallworth never warned her that her absences could result in
the termination of her employment. (Doc. 44 at 1). Although the failure to warn an
employee of poor performance when poor performance is the articulated reason for
the employee’s discharge may indicate pretext, it is not sufficient to defeat summary
judgment standing alone. Almond v. City of Canton, Ga., 2006 WL 8432780, at *18
(N.D. Ga. Dec. 5, 2006) (collecting cases), report and recommendation adopted,
2007 WL 9701438 (N.D. Ga. Jan. 18, 2007). Here, the alleged failure to warn stands

16

Moreover, the record lacks a “convincing mosaic” of circumstantial evidence that would permit
a reasonable inference of intentional discrimination outside the McDonnell Douglas framework.
21

alone. The court notes the plaintiff also claims in her response to the defendant’s
summary judgment motion that the defendant failed to follow policies and
procedures. (Doc. 44 at 3). Because the plaintiff does not articulate what those
policies and procedures were or how she contends the defendant failed to follow
them, let alone point to evidence supporting the assertion, the assertion neither
buttresses the plaintiff’s claim the defendant failed to warn her that her absences
could result in the termination of her employment nor suggests pretext in and of
itself. See Maddox-Jones v. Bd. of Regents of Univ. Sys. of Ga., 448 F. App’x 17,
19 (11th Cir. 2011) (“A plaintiff cannot defeat summary judgment by relying upon
conclusory assertions.”). The court will grant the defendant’s summary judgment
motion as to the plaintiff’s discriminatory discharge claim and dismiss this claim
with prejudice.
IV.

Conclusion
For the reasons stated above, the court DENIES the defendant’s summary

judgment motion (Doc. 42) as to the plaintiff’s failure to accommodate claim.
However, the court GRANTS the defendant’s summary judgment (Doc. 42) as to
the plaintiff’s discriminatory discharge claim and DISMISSES that claim WITH
PREJUDICE.

22

DONE this 7th day of March, 2025.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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