Robinson v. Gadsden State Community College

Filing 27

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/29/2016. (JLC)

FILED
2016 Mar-29 PM 03:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DR. LORETTA S. ROBINSON,
Plaintiff,
v.
GADSDEN STATE COMMUNITY
COLLEGE,
Defendant.

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) Case No.: 4:14-CV-1538-VEH
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MEMORANDUM OPINION
This civil action was filed on August 6, 2014, by the plaintiff, Dr. Loretta S.
Robinson, against the defendant, Gadsden State Community College (“GSCC”). (Doc. 1).
The complaint alleges that the defendant discriminated and retaliated against the plaintiff
in violation of the Americans with Disabilities Act, 42 U.S.C. § 12201, et seq. (the
“ADA”) (Counts One and Two). The complaint also alleges a violation of the Alabama
Discrimination Statute, Ala. Code § 21-7-8 (Count Three). All counts arise out of the
plaintiff’s employment with the defendant.
This case now comes before the court on the motion for summary judgment filed
by the defendant. (Doc. 14). For the reasons stated herein, the motion will be
GRANTED, and this case will be DISMISSED with prejudice.

I.

STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there

is no genuine dispute as to any material fact and the moving party 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) (“[S]ummary judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”) (internal quotation marks and citation omitted). The party
requesting summary judgment always bears the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the pleadings or filings
that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings in answering the movant. Id. at 324. By its own
affidavits – or by the depositions, answers to interrogatories, and admissions on file –
it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the

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outcome of the suit under the governing law will properly preclude the entry of summary
judgment. 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 nonmoving party.” Id. If the evidence
presented by the non-movant to rebut the moving party’s evidence is merely colorable,
or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that
party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on
the given issue or issues at trial, then it can only meet its burden on summary judgment
by presenting affirmative evidence showing the absence of a genuine issue of material
fact – that is, facts that would entitle it to a directed verdict if not controverted at trial.
Id. (citation omitted). Once the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce “significant, probative evidence
demonstrating the existence of a triable issue of fact.” Id. (citation omitted) (emphasis
added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the

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non-movant must rebut by either (1) showing that the record in fact contains supporting
evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence
sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on
mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey,
518 U.S. 343, 358 (1996). The second method a movant in this position may use to
discharge its burden is to provide affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When
this occurs, the non-movant must rebut by offering evidence sufficient to withstand a
directed verdict at trial on the material fact sought to be negated. Id.
II.

FACTS
This court's summary judgment scheduling order provides:
The first section [of the brief of the party opposing summary
judgment] must consist of only the non-moving party's disputes, if any, with
the moving party's claimed undisputed facts. The non-moving party's
response to the moving party's claimed undisputed facts shall be in
separately numbered paragraphs that coincide with those of the moving
party's claimed undisputed facts. Any statements of fact that are disputed
by the non-moving party must be followed by a specific reference to those
portions of the evidentiary record upon which the dispute is based. All
material facts set forth in the statement required of the moving party will
be deemed to be admitted for summary judgment purposes unless
controverted by the response of the party opposing summary judgment.

(Doc. 3 at 17) (emphasis in original). The plaintiff has not filed any opposition to the

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motion for summary judgment. Accordingly, the following facts, set out in the movant's
brief, are deemed to be admitted:
1.
Dr. Loretta Sue Robinson (“Dr. Robinson”) was hired by Gadsden
State Community College (“GSCC”) in September 1990 as a nursing
instructor and continues to be employed by GSCC.
2.
Dr. Robinson is able to perform the duties of her job as outlined in
her job description. Dr. Robinson is presently 55 years of age.
3.
Dr. Robinson's original campus/base assignment was at Helderman
Hall on the Wallace Drive Campus in Gadsden, where she had enjoyed
working without any problems since September 1990.
4.
Dr. Robinson’s last office at Helderman Hall was tiled and climate
controlled by a wall unit which could not be regulated with the thermostat.
5.
In 2011, Gadsden State Community College restructured its nursing
faculty to better serve the students of Gadsden State Community College's
nursing program.
6.
On June 28, 2011, Dr. Robinson was advised by Dr. Raymond Staats
that her campus/base assignment would be changed to the McClellan
campus in Anniston without change in title, status or compensation.
7.
Dr. Robinson made no complaint at that time with regard to the
transfer.
8.
Upon transferring to the McClellan campus, Dr. Robinson was
initially assigned the temporary use of an office/storage room located in
the classroom area for the EMS program as there was not a vacant office
in the nursing faculty area.
9.
On January 6, 2012, Dr. Robinson was asked to move into a recently
vacated office in the nursing faculty area, so that the office/storage room
could be used by the EMS program. In response, Dr. Robinson advised Kim
Sonnberger, Coordinator of Nursing Education, and Dr. Susan Tucker,
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Director of the College’s Nursing Program, that she could not work in a
carpeted office due to infections and allergies.
10.
On January 9, 2012, Dr. Robinson advised Connie Meloun, Assistant
Dean of Health Services, that she would be more than happy to relocate to
an office without carpeting.
11.
On January 11, 2012, Dr. Thomas, Dr. Robinson’s primary care
physician, advised that Dr. Robinson should not work or live in carpeted
areas due to severe allergic rhinitis.
12.
On January 17, 2012, Connie Meloun advised Dr. Robinson that an
office next to Kim Sonnberger could be renovated by replacing carpet with
tile.
13.
Renovation of the vacant office was completed in July or early
August of 2012.
14.
Dr. Robinson alleges her disability began in late August 2012,
arising out of her respiratory problems, asthma, hypoalbuminemia, low
protein, serum protein, hypothyroidism, bronchitis, pneumonia,
environmental allergies, and shortness of breath, anxiety and stress. Dr.
Robinson was hospitalized from August 20, 2012 through August 22, 2012
with pneumonia, but returned to work per Dr. Thomas' medical directives
on August 27, 2012.
15.
Dr. Robinson had not visited the new office until after her August
20, 2012 hospitalization. Dr. Thomas excused Dr. Robinson from work
from August 20, 2012 to August 27, 2012, and from clinicals from August
20, 2012 to September 1, 2012. Dr. Robinson expressed concerns to Dr.
Thomas regarding the perceived hazards in the new office following which
Dr. Thomas advised by note of August 22, 2012 that due to environmental
concerns Dr. Robinson should remain in her current office.
16.
On September 7, 2012, Dr. Jim Jolly, Dean of Instruction, issued a
memo to Dr. Robinson advising that the EMS storage room was no longer
available and asking Dr. Robinson to move into the renovated office
assigned to her by close of business on September 11, 2012.
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17.
On September 11, 2012, Dr. Robinson moved to the renovated
office although fearful and anxious of getting sick. After less than one hour
of occupation in the renovated office, Dr. Robinson claims to have begun
experiencing symptoms of shortness of breath, pounding heart, nausea and
a feeling of doom.
18.
Dr. Robinson was taken to Dr. Thomas’[s] office by a co-employee.
Dr. Thomas took Dr. Robinson off work until September 25, 2012.
19.
On September 13, 2012, Kim Cobb, Director of Human Resources,
provided Dr. Robinson with a copy of the College’s policy and forms for
workplace accommodation requests.
20.
On September 18, 2012, Dr. Robinson returned the forms for
workplace accommodation requests to the College’s Human Resources
office, but did not provide medical documentation of a disability.
21.
Prior to Dr. Robinson's return to work, Dr. Staats, through Kim
Cobb, requested to know what specific allergens affected Dr. Robinson, so
that a safe work environment could be provided to Dr. Robinson.
22.
Dr. Robinson was allowed to continue using the EMS storage
room/office until an evaluation of her requested accommodation could be
completed.
23.
In response to Dr. Staats’[s] request for additional information, Dr.
Thomas completed a physician's statement on September 24, 2012 and
prepared a memo dated September 27, 2012. In these notes, Dr. Thomas
advised that Dr. Robinson had been diagnosed with asthma, drug and
environmental allergens, hypothyroidism, low serum albumin and
work-related stress. Dr. Thomas further advised that the use of steroids
affected Dr. Robinson's immunocompetency. Specific examples of
allergens given were sulfa, adhesives and old carpet. Dr. Thomas did not
specify any disability nor address any work place accommodations.
24.
ERG Environmental conducted air quality testing on September 24,
2012[,] and submitted a report dated September 27, 2012, which indicated
that both the EMS office/storage room and the renovated office were in the
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“Clean Building” range.
25.
In the late fall of 2012, Dr. Robinson began wearing a mask at her
own discretion.
26.
On November 26, 2012, Kim Cobb advised Dr. Thomas of the
results of the air quality testing and asked that Dr. Thomas advise whether
Dr. Robinson could move into the office renovated in August 2012, with
an air purifier that had been provided for Dr. Robinson's use.
27.
On December 3, 2012, Dr. Robinson was offered the option to
relocate to Helderman Hall, where she had previously been assigned
from1990 until 2011, but Dr. Robinson declined.
28.
On December 4, 2012, Kim Cobb requested that Dr. Robinson
consult with Dr. Thomas regarding moving into the renovated office or to
relocate back to Helderman Hall.
29.
December 7, 2012, Dr. Thomas advised that Dr. Robinson should
avoid exposure to allergens in old carpet, old buildings, linoleum, chemical
cleaners, floor wax, adhesives and mold. Further, that Dr. Robinson would
benefit from an office free of chemical cleaners and wax floors, as well as
the use of an air purifier. Again, Dr. Thomas did not address any medical
condition or disability and advised that Dr. Robinson had been referred to
Dr. Grubbe and Dr. Patel for further testing.
30.
Dr. Robinson moved into the renovated office on December 10,
2012. An air purifier had been installed in the renovated office. Dr.
Robinson continues to work from her renovated office.
31.
On December 12, 2012, Dr. Robinson was seen by Dr. Grubbe,
allergy specialist, and executed an authorization for the air quality test
results to be released to Dr. Grubbe. The authorization was faxed to Kim
Cobb at GSCC on January 14, 2013. and results were provided to Dr.
Grubbe on January 15, 2013.
32.
Dr. Robinson was again treated by Dr. Grubbe in March, 2013, at
which time Dr. Grubbe did not make any recommendations with regard to
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the air quality test results, nor did he place any physical restrictions on Dr.
Robinson.
33.
Since November 25, 2012, Dr. Robinson has occasionally had to use
her rescue inhaler, but has not suffered an asthma attack requiring medical
care.
34.
On November 30, 2012, Dr. Robinson filed her initial Charge of
Discrimination with the EEOC alleging harassment and denial of ADA
accommodations.
35.
In the fall of 2013, Dr. Robinson requested that Student X be
removed from her clinical rotation which would require Student X be
placed in clinicals that would require her to drive a considerable distance
from her home. The decision was made to allow X to remain in Dr.
Robinson's clinicals. X was given a positive evaluation by Dr. Robinson.
36.
On January 23, 2014, Dr. Robinson filed a second Charge of
Discrimination alleging retaliation.
37.
Since filing her EEOC charges, Dr. Robinson has not experienced
any adverse employment action and has been awarded summer contracts for
2013 and 2014 which earned Dr. Robinson an additional twenty plus
thousand dollars each summer.
38.
When not teaching, Dr. Robinson works PRN at Stringfellow
Hospital. Dr. Robinson is able to take care of her daily living activities,
such as shopping, cooking, and cleaning. She also likes to bird watch,
garden, scrapbook and assist older people with things like mopping floors,
washing dishes, taking care of pets.
(Doc. 24 at 7-15) (citations to the record omitted).
III.

ANALYSIS
A.

Eleventh Amendment Immunity

GSCC correctly asserts that Eleventh Amendment immunity is applicable to the
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ADA claims against it. The Eleventh Amendment provides that
[t]he judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens or subjects of any
foreign state.
U.S. Const. amend. XI. “It is firmly established that the Eleventh Amendment immunizes
unconsenting states from private suits in federal courts

for

retrospective money

damages, whether brought by their own citizens or by citizens of other states.” Ostroff,
554 F. Supp. at 355 (citing Hans v. Louisiana, 134 U.S. 1, 1 (1890); Edelman v. Jordan,
415 U.S. 651, 662–63 (1974)). The United States Supreme Court has specifically held
that suits by “employees of the State of Alabama [to] recover money damages by reason
of the State’s failure to comply with the provisions of [the ADA] . . . are barred by the
Eleventh Amendment.” Bd. of Trustees of Univ . of Alabama v. Garrett, 531 U.S. 356,
360, 121 S. Ct. 955, 960, 148 L. Ed. 2d 866 (2001). The question then becomes whether
GSCC is “the State of Alabama” for purposes of the Eleventh Amendment.
In Morris v. Wallace Cmty. Coll.-Selma, 125 F. Supp. 2d 1315, 1335-36 (S.D.
Ala. 2001) aff'd sub nom. Morris v. Wallace Cmty., 34 F. App'x 388 (11th Cir. 2002),
a very well reasoned and persuasive opinion, Judge Vollmer held that Eleventh
Amendment immunity applies to Alabama community colleges. Judge Vollmer explained
that Eleventh Amendment immunity “extends . . . to entities having a sufficiently close
connection to the state that a suit against the entity is effectively one against the state
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itself.” Morris, 125 F. Supp. 2d at 1334 (citing Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). He continued:
Whether an entity other than the state itself partakes of the state's
Eleventh Amendment immunity depends on whether it is an “arm of the
state.” Mt. Healthy City School District Board of Education v. Doyle, 429
U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). “Whether [the
College] is an arm of the state protected by the Eleventh Amendment ‘turns
on its function and character as determined by state law.’ ... Factors that
bear on this determination include the definition of ‘state’ and ‘political
subdivision,’ the state's degree of control over the entity, and the fiscal
autonomy of the entity.” Fouche v. Jekyll Island—State Park Authority,
713 F.2d 1518, 1520 (11th Cir.1983)(quoting Sessions v. Rusk State
Hospital, 648 F.2d 1066, 1069 (5th Cir.1981)). A fourth factor,
sometimes subsumed within the “fiscal autonomy” factor, is “who is
responsible for judgments against the entity.” Tuveson v. Florida
Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th
Cir.1984). These factors were most recently applied by the Eleventh
Circuit in Miccosukee Tribe v. Florida State Athletic Commission, 226
F.3d 1226, 1231–34 (11th Cir.2000).
Although the defendants have not applied this factor analysis, the
Court is satisfied that the College is entitled to Eleventh Amendment
immunity. Powers v. CSX Transportation, Inc., 105 F.Supp.2d 1295,
1299–1301 (S.D.Ala.2000) (applying the factor analysis to the Alabama
Department of Transportation). First, Alabama's state law sovereign
immunity extends to community colleges such as the College. Second, the
life of the College is heavily regulated by the State Board of Education,
itself presumptively an arm of the state possessing Eleventh Amendment
immunity. Ala.Code § 16–60–110. Third, the College is further regulated
by the Chancellor of the Postsecondary Education Department. Id. §
16–60–111.5. Fourth, the College depends heavily on the state for funding,
id. §§ 16–60–111.4(4), (6), –111.5(6), has limited ability to borrow
money, id. § 16–60–113, and apparently may not issue bonds. See id. §
16–60–90 (establishing a separate authority to issue bonds for
construction and equipment). Fifth, the plaintiff has made no showing that
any monetary relief awarded against the College would not come from the
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state treasury.
Id. at 1335-1336 (footnotes omitted); see also, LaFleur v. Wallace State Cmty. Coll.,
955 F. Supp. 1406, 1421-22 (M.D. Ala. 1996) (holding that community college is
entitled to Eleventh Amendment immunity because the Supreme Court of Alabama has
held that institutions of higher learning, including the state's community colleges, are
arms of the state.). The court agrees with the analysis and the reasoning used by Judge
Vollmer in the Morris case, and adopts it. GSCC is entitled to Eleventh Amendment
immunity from suit under the ADA. Summary judgment on the ADA claims (Count One
and Two) will be granted.1
B.

Alabama Immunity

As to the plaintiff’s state law claim, GSCC also correctly argues that it is entitled
to governmental immunity under the Alabama Constitution. Article I, § 14 of the Alabama
Constitution provides generally that the State of Alabama is immune from suit: “[T]he

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An exception to Eleventh Amendment immunity exists concerning prospective relief to
enjoin continuing violations of the federal constitution. The exception also extends to monetary
relief, including costs, that is ancillary to such prospective injunctive relief. Kentucky v. Graham,
473 U.S. 159, 169 n.18 (1985). As explained by the Eleventh Circuit, the exception “is derived from
Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), which held that official
capacity suits for prospective relief to enjoin state officials from enforcing unconstitutional acts are
not deemed to be suits against the state and thus are not barred by the Eleventh Amendment.”
Scott v. Taylor, 405 F.3d 1251, 1255 (11th Cir. 2005) (emphasis supplied). “In such cases, it is the
individual and not the state which is being sued, and when a state official acts unconstitutionally, he
is stripped of his official or representative character and Eleventh Amendment protection.”
Williams v. Ala. State Univ., 865 F. Supp. 789, 792 (M.D. Ala. 1994) (emphasis added) (citing Ex
parte Young, 209 U.S. at 159–60), rev’d on other grounds, 102 F.3d 1179 (11th Cir. 1997). The
court notes that the plaintiff has only sued GSCC, and has not named any individual defendant(s).
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State of Alabama shall never be made a defendant in any court of law or equity.” This
constitutional provision “has been described as a ‘nearly impregnable’ and ‘almost
invincible’ ‘wall’ that provides the State an unwaivable, absolute immunity from suit in
any court.” Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1206 (Ala. 2006). Section
14 “specifically prohibits the State from being made a party defendant in any suit at law
or in equity.” Hutchinson v. Board of Trustees of Univ. of Alabama, 256 So. 2d 281,
283 (Ala. 1971). Additionally, under § 14, state agencies are “absolutely immune from
suit.” Lyons v. River Road Constr., Inc., 858 So. 2d 257, 261 (Ala. 2003).
“[T]his immunity extends to the state's institutions of higher learning.”
Taylor v. Troy State University, 437 So.2d 472, 474 (Ala.1983). In
particular, the state's sovereign immunity reaches community colleges . .
.. Ex parte Craft, 727 So.2d 55, 58 (Ala.1999); Williams v. John C.
Calhoun Community College, 646 So.2d 1, 2 (Ala.1994); Shoals
Community College v . Colagross, 674 So.2d 1311, 1313–14
(Ala.Civ.App.1995), cert. denied, 674 So.2d 1315 (Ala.1996). All that
need be shown is that the defendant “was a post-secondary educational
institution operating under the authority and supervision of the State Board
of Education.” Id. at 1314.
Morris, 125 F. Supp. 2d at 1344. Governmental immunity bars the state law claim against
GSCC. Summary judgment will be granted as to Count Three.
C.

The Merits of the ADA Claims

Even if the ADA claims were not barred, they would fail on their merits. The
Eleventh Circuit has recently noted:
We analyze ADA discrimination claims under
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the McDonnell

Douglas burden-shifting analysis applied to Title VII employment
discrimination claims. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th
Cir.2000). Under that framework, a plaintiff-employee first establishes a
prima facie case of discrimination. See Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1087 (11th Cir.2004). To establish a prima facie case of ADA
discrimination, a plaintiff must show (1) a disability, (2) that she was
otherwise qualified to perform the job, and (3) that she was discriminated
against based upon the disability. Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1193 (11th Cir.2004). The burden then shifts to the
defendant to articulate a legitimate reason for its employment action.
Wilson, 376 F.3d at 1087. If it can, the burden shifts back to the plaintiff
to offer evidence that the reason is pretextual. Id. If the plaintiff fails to
show pretext, we affirm the grant of summary judgment on that ground.
EEOC v. Total Sys. Servs., 221 F.3d 1171, 1177 (11th Cir.2000). Where
the defendant has met its burden of articulating a legitimate,
non-discriminatory reason for its action, we may assume without deciding
that the plaintiff has established a prima facie case and decide the case on
the question of pretext. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1564
(1997); Wascura v. City of S. Miami, 257 F.3d 1238, 1243 (11th
Cir.2001).
Thomas v. Dolgencorp, LLC, No. 15-13399, 2016 WL 1008622, at *1 (11th Cir. Mar.
15, 2016).
The same burden-shifting framework applies to ADA retaliation claims. Stewart
v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). To
establish a prima facie case of retaliation, the plaintiff must allege that “‘(1) [s]he
engaged in a statutorily protected expression; (2) [s]he suffered an adverse employment
action; and (3) there was a causal link between the adverse action and h[er] protected
expression.’” Smith v. Miami-Dade Cty., 621 F. App'x 955, 960 (11th Cir. 2015)
(quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir.2001)).
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Because the defendant’s undisputed facts “articulate a legitimate reason for its
employment action[,] . . . the burden [has shifted] back to the plaintiff to offer evidence
that the reason is pretextual.” Thomas, 2016 WL 1008622, at *1. However, the plaintiff
has not responded to the motion for summary judgment. She has therefore failed to carry
her burden. Summary Judgment is appropriate as to Counts One and Two for this
alternative reason as well.
IV.

CONCLUSION
For the reasons stated above, Summary Judgment will be GRANTED to the

defendant and this case will be DISMISSED with prejudice. A final order will be
entered.
DONE this 29th day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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