Salser v. Clarke County Board of Education et al

Filing 47

ORDER granting 40 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 07/15/2011. (jbo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
MARY LEE SALSER,

*

Plaintiff,

*

vs.

*
CASE NO. 3:10-CV-17 (CDL)

CLARKE COUNTY SCHOOL DISTRICT, *
et al.,
*
Defendants.
*
O R D E R
Plaintiff Mary Lee Salser (“Salser”) was employed by the
Clarke County School District (“School District”) as a speech
language

pathologist.

Salser,

who

has

rheumatoid

arthritis,

claims that the School District and its employees discriminated
and retaliated against her in violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), and
violated

the

Family

and

Medical

29 U.S.C. § 2601 et seq. (“FMLA”).

Leave

Act

of

1993,

The Court previously granted

Defendants‟ motion for partial summary judgment as to Salser‟s
ADA claims based on acts and omissions that occurred prior to
October 4, 2007.

Salser

3:10-CV-17

(CDL),

2011

Defendants

now

Salser‟s claims.

seek

WL

v.

Clarke

56064

summary

Cnty.

(M.D.

judgment

Sch.

Ga.
on

Dist.,

Jan.

the

5,

No.

2011).

remainder

of

For the following reasons, Defendants‟ Motion

for Summary Judgment (ECF No. 40) is granted.

SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P.

56(a).

Fed. R.

In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is material if it is relevant or

necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
The evidence, viewed in the light most favorable to Salser,
reveals the following.1
I.

Salser’s Disability
Salser

suffers

from

a

variety

including rheumatoid arthritis.

of

medical

conditions,

Salser also has a compromised

immune system and becomes ill very easily.

1

As a result of her

Defendants‟ statements of material fact that Salser failed to
controvert with specific citation to the record are deemed admitted.
M.D. Ga. R. 56.
The Court has fulfilled its duty to “review the
movant‟s citations to the record to determine if there is, indeed, no
genuine issue of material fact.”
Reese v. Herbert, 527 F.3d 1253,
1269 (11th Cir. 2008) (internal quotation marks omitted).

2

rheumatoid arthritis, Salser has difficulty walking, and two to
three

days

a

week

she

is

unable

to

perform

any

day-to-day

activities.
II.

Salser’s Job Duties
Salser began her employment with the School District as a

Speech Language Pathologist (“SLP”) in August 2001.

The School

District employs SLPs to “[d]iagnose and treat pre-school and
school-aged

children

through

communication disabilities.”

high

school

with

various

Pl.‟s Resp. to Defs.‟ Mot. for

Summ. J. [hereinafter Pl.‟s Resp.] Ex. B, School District SLP
Job Description, ECF No. 44-1 [hereinafter SLP Job Description].
Some

of

the

“essential

functions”

identified

in

the

School

District‟s SLP job description include: (1) communicating with
building principals and the SLP Coordinator to ensure program
efficacy;

(2)

maintaining

accurate,

complete,

and

correct

records as required by law, district policy, and administrative
regulation; and (3) attending staff meetings.

Id.

Importantly,

evaluation and therapy services cannot be delegated to anyone
other than a certified or licensed SLP.
SLPs must provide therapy in accordance with a student's
Individualized

Education

Program

(“IEP”),

which

must

be

developed and reviewed in accordance with specific procedural
requirements

set

forth

Education Act (“IDEA”).

in

the

Individuals

with

Disabilities

A student‟s IEP designates the specific

3

amount

of

SLP

therapy

services

the

student

is

entitled

to

receive.
SLPs are responsible for developing therapy schedules which
are disseminated to classroom teachers.

Therapy schedules are

usually developed so that students are not pulled out of the
classroom for “specials” such as music, physical education, or
art, or during the delivery of instruction in key content areas
such as math or language arts.

Therapy must be consistent to be

effective, and it is important for an SLP to adhere to the
schedule.2

established

therapy

specialized

training,

the

School

Because
District

SLPs
does

have

highly

not

employ

substitutes to fill in for SLPs who are absent from work on an
intermittent basis.

Salser contends that her supervisor, Speech

Language Coordinator Amy Arnold, was qualified to carry out the
regular duties of an SLP, did not have a caseload of her own,
and represented to others that she was available to act as a
substitute SLP.
1.

Pl.‟s Resp. Ex. A, Salser Aff. ¶ 3, ECF No. 44-

It is undisputed, however, that if an SLP was unable to

attend a scheduled therapy session, the School District required
that the absent SLP make up the missed session with the student.
Defs.‟ Mot. for Summ. J. [hereinafter Defs.‟ Mot.] Ex. 4, Arnold
2

Salser notes that some scheduled therapy sessions were missed because
of a student‟s absence, student testing, or a conflict between a
student‟s scheduled therapy and some other school activity or
function. Pl.‟s Resp. Ex. A, Salser Aff. ¶ 5, ECF No. 44-1.

4

Aff. ¶ 11,

ECF

No.

40-4;

Blake

Dep.

25:6-11,

ECF

No.

36.

Although SLPs have some flexibility to make up missed therapy
sessions, a student who is entitled to SLP services once a week
should not go more than a couple of weeks without receiving any
therapy services.
In

addition

Arnold Aff. ¶ 11.
to

conducting

eligibility

evaluations

and

providing therapy to students, SLPs are required to assist in
writing speech-related goals and objectives for IEPs.

If a

student is receiving special education services only because of
a speech or language impairment, an SLP acts as the student‟s
case manager and is responsible for convening an annual IEP
meeting to review the student‟s progress toward annual goals.
The annual review must be completed within one year of the date
the IEP was written.

If the annual review is not held by that

deadline, the School District is considered out of compliance
with state and federal requirements.
services

cannot

discontinue

be

SLP

unilaterally

services,

an

Further, a student‟s SLP

terminated
SLP

must

by

an

complete

SLP.

To

dismissal

paperwork indicating that a student‟s parent has consented to
the discontinuation of services.

Salser contends that in her

absence, a substitute could have filled in for her to complete
IEP meetings.

Pl.‟s Br. in Supp. of Resp. to Defs.‟ Mot. for

Summ. J. 8-9, ECF No. 43-2 [hereinafter Pl.‟s Br.] (citing Grace

5

Dep. 32:22-33:22, ECF No. 37); Pl.‟s Statement of Material Facts
in Dispute ¶ 21, ECF No. 43-1 [hereinafter Pl.‟s SMF] (same).
SLPs

are

also

responsible

record-keeping duties.

for

performing

a

number

of

One of their most fundamental duties is

to maintain timely, accurate, and up-to-date therapy logs which
document

when

therapy

during the session.

sessions

were

held

and

what

occurred

SLPs must also maintain records indicating

that students have been properly dismissed from SLP services and
documenting

when

Medicaid

reimbursable

services

have

been

provided.
If an SLP anticipates being unable to meet a deadline, the
School District requires that the SLP contact Speech Language
Coordinator Amy Arnold ahead of time.

Arnold is responsible for

overseeing compliance with federal and state requirements and
can provide SLPs with support to help prevent them from missing
deadlines.

An

SLP‟s

failure

to

timely

evaluate

a

student

suspected of having a speech or language impairment, failure to
review a student‟s IEP prior to the annual review deadline, or
failure

to properly dismiss a student from SLP services are

procedural
District

violations
may

be

under

sanctioned

the

IDEA

by

the

for

which

Georgia

the

School

Department

of

Education or the U.S. Department of Education Office of Civil
Rights.

6

III. Salser’s Initial Requests for Accommodations
In

2005,

provided)

Salser

seven

requested

specific

(and

the

School

accommodations:

(1)

a

District
classroom

appropriate for equipment; (2) a flexible work schedule; (3) a
communication link; (4) an ergonomically correct desk and chair;
(5) a mid-day schedule break other than lunch; (6) storage at
waist-to-chest

level;

and

breaking down classrooms.

(7)

assistance

in

setting

up

and

Salser Dep. Ex. 58, Letter from J.

Miller to M. Salser, Nov. 7, 2005, ECF No. 21 (confirming that
Salser‟s requests for accommodation made in her July 27, 2005
email

had

been

fulfilled).

As

part

of

her

flexible

work

schedule, Salser was allowed to complete paperwork from home
when

she

was

not

scheduled

to

provide

therapy

to

students,

conduct screenings, perform eligibility evaluations, or attend
IEP meetings.

But, the flexible work schedule accommodation did

not excuse Salser from her recordkeeping duties.
IV.

Salser’s Dual School Assignment
During Salser‟s first five years with the School District

she was assigned to Timothy Road Elementary School
Road”).

(“Timothy

From all indications, while stationed at Timothy Road,

Salser was a successful employee who was highly valued by the
School District.
satisfactory

Salser Aff.

evaluations

for

¶

the

12 (stating Salser received
2001-2002,

2002-2003,

2003-

2004, 2004-2005, and 2005-2006 school years); Pl.‟s Resp. Ex. F,

7

Salser Annual Evaluation Summary Reports, ECF No. 44-1 (stating
that despite “health issues,” Salser is a “veteran SLP” who
provides

“quality

services,”

is

“flexible,”

is

an

“active

participant” at department meetings, and is “well respected at
her school”).
At the start of the 2006-2007 school year, Salser was given
a

dual

school

assignment

at

Chase

Street

Elementary

(“Chase Street”) and Coile Middle School (“Coile”).

School

In the fall

of that same year, “after months of requesting a scooter to help
with [her] mobility,” the School District provided Salser with a
motorized scooter.

Salser Aff. ¶ 6.

But, according to Salser,

Associate Superintendent of Student Services Dr. Mike Blake told
her that the scooter was “not to leave Chase Street.”
also

Pl.‟s

Resp.

Ex.

D,

Email

from

M.

Blake

to

Id.; see

M.

Salser,

Dec. 4, 2006, ECF No. 44-1 (referring to a “scooter for use at
Chase Street”).
Coile.

Therefore, Salser did not use the scooter at

Salser again received a satisfactory evaluation for the

2006-2007 school year.

Pl.‟s Resp.

Ex.

E, Salser 2006-2007

Annual Evaluation Summary Report, Feb. 13, 2007, ECF No. 44-1.
Soon,

however,

Salser‟s

colleagues

and

supervisors

began

to

express concerns regarding her performance.
V.

Salser’s Job Performance Deteriorates
At the start of the 2007-2008 school year, Salser had a

meeting with Arnold, Director of Special Education Susan Rozier,

8

and Coile Special Education Team Leader Heather Grace.
meeting,

Rozier

expressed

concerns

during the 2006-2007 school year.

about

Salser‟s

At the

attendance

Arnold also raised concerns

about Salser‟s failure to communicate with her in advance of
missing IEP deadlines the previous year.

Salser notes, however,

that her 2006-2007 performance review did not mention attendance
as a problem.

Id.

During that same meeting, Salser made Arnold, Rozier, and
Grace aware that she had difficulty moving throughout the Coile
building.

Grace

Dep.

11:24-12:12.

As

a

result,

Salser‟s

therapy room at Coile was moved to the front office suite near a
handicap

accessible

restroom,

and

she

separate, more accessible sign-in sheet.

was

provided

with

a

Salser was also told

that she could provide the names of students who needed to meet
with her for therapy to the office staff, who would then call
those students to come to Salser‟s suite so that she did not
have to escort students to and from speech therapy.
In the fall of 2007, Salser‟s absences began to negatively
impact

her

productivity

at

work.

In

August

2007,

Salser

reported taking two days of leave out of fifteen work days.

In

September 2007, Salser reported taking seven-and-a-half days of
leave out of nineteen work days.

Five of those seven-and-a-half

days were bereavement leave due to the death of Salser‟s father.
When Salser returned to work in October 2007, she was tired,

9

sick, and “not in great shape.”
October

2007,

Salser

reported

Salser Dep. 265:14-25.

taking

two-and-a-half

In

days

of

leave out of twenty-three work days.
During the same period, Salser failed to meet the deadlines
for

submitting

records.

her

Also,

August

in

2007

September

and

September

2007,

Chase

2007

Street

Medicaid
Assistant

Principal Adam Kurtz began receiving complaints from teachers
that

students

Salser

as

were

required

not

receiving

under

their

SLP

therapy

IEPs.3

Kurtz

services
reported

from
these

complaints to Arnold, who requested Salser‟s therapy logs to
investigate.

Salser delayed in providing the requested therapy

logs and ultimately never produced therapy logs for two students
who had not been properly dismissed from SLP services.

Salser

notified Arnold that those two students had been dismissed from
SLP services; but Salser failed to timely complete and turn in
appropriate paperwork.4

Arnold Aff. ¶ 21.

The absence of the

therapy logs suggested to Arnold that Salser was not providing
3

Salser notes that some of the complaints were received on the same
day, October 3, 2007, after Kurtz asked whether students were
receiving speech services.
Kurtz Dep. 61:8-62:3, ECF No. 38.
Kurtz
explained that he asked teachers whether students were receiving
speech services as part of Chase Street‟s full-time equivalency count
which determined state funding for student services.
Id.; see also
id. at 41:1-21 (discussing full-time equivalency count).
Kurtz had
also previously received complaints regarding Salser the previous
school year and in September 2007. Id. at 54:5-58:5, 62:4-63:5.
4

Salser contends that she “provided copies of the therapy logs
requested,” Pl.‟s SMF ¶¶ 62-64, but she did not direct the Court to
any evidence supporting that assertion.

10

SLP

services

to

eligible

students.

And,

Arnold

noticed

discrepancies between the therapy logs Salser did produce and
her reported leave.

This caused Arnold to believe that Salser

was not providing therapy to students and was not performing her
documentation and record-keeping duties.

Salser attributes the

discrepancies to “a clerical error or two” in transposing her
notes to her therapy logs.

Salser Aff. ¶ 9.

In addition to the complaints at Chase Street, in October
2007, Grace informed Arnold that Salser had failed to write IEP
speech-related goals for a number of students at Coile.
explains

that

bereavement

at

that

leave,

that

time
she

she
was

had

just

primarily

Salser

returned

working

at

from
Chase

Street, and that she was often not told of meetings that were
held at Coile or was told about the meetings only at the last
minute.

Salser Aff. ¶ 10; Salser Dep. 264:25-266:3 (explaining

that Salser‟s father died in September 2007, that she was ill at
the time, that she was “playing catch-up the entire fall,” and
that “yes, [Arnold] didn‟t get her logs when she needed them,
but [Salser] was doing the best [she] could to keep up”).
In October 2007, Arnold met with
performance

problems.

Arnold

Salser

emphasized

the

communicating with her in advance of missing
directed
meeting

Salser

to

deadlines.

inform
Arnold

Arnold

if

she

subsequently

11

to discuss

her

importance
a

of

deadline

and

needed

issued

assistance

Salser

three

Georgia Teacher Duties and Responsibilities Instrument (“GTDRI”)
written deficiency notifications for performance problems in the
following

areas:

(1)

conducts

assigned

classes

at

the

times

scheduled; (2) communicates effectively with families, students,
and

colleagues;

and

(3)

maintains

accurate,

complete,

appropriate records and files reports promptly.5

and

Salser Dep.

Exs. 195-97, GTDRI Deficiency Notifications, Oct. 18, 2007, ECF
No. 21.

The GTDRI deficiency notifications directed Salser to

take the following corrective actions: (1) inform her supervisor
if

she

would

not

be

able

to

meet

a

deadline;

(2)

maintain

accurate therapy logs; (3) document missed therapy sessions and
indicate

when

make-up

sessions

would

be

held;

(4)

clarify

discrepancies between therapy logs and reported leave; and (5)
send in Medicaid records for the previous month by the 5th of
the following month.
In

response

Id.
to

improved in some areas.
Salser

Dep.

Ex.

146,

the

deficiency

notifications,

Salser

Arnold Dep. 60:12-22, ECF No. 34; see
Email

from

A.

Arnold

to

M.

Salser,

Nov. 6, 2007 (telling Salser “You‟ve really been doing awesome.
It hasn‟t gone unnoticed!” in response to Salser sending in
October Medicaid records by November 5th).
Salser had additional problems.
5

But, in other areas,

Arnold Dep. 60:23-24.

First,

The GTDRI is an evaluation instrument developed by the Georgia
Department of Education as part of the Georgia Teacher Evaluation
Program (“GTEP”).

12

despite

Arnold‟s

directives,

Salser

failed

to

clarify

discrepancies between her therapy logs and her reported leave.
Arnold Aff. ¶ 26.

Second, after failing to complete a student‟s

evaluation

a

before

scheduled

IEP

meeting,

Salser

failed

to

follow Arnold‟s instruction to convene a second IEP meeting to
review Salser‟s evaluation of the student.
28.

Arnold Aff. ¶¶ 27-

Third, Salser claimed she was not providing therapy to a

student

because

the

student

had

been

dismissed

from

SLP

services, but she failed to produce any dismissal paperwork, and
Arnold later learned that the student was still receiving SLP
services through the School District.

Arnold Aff. ¶ 29; Salser

Dep. Ex. 141, Email from L. Andrews to M. Salser & H. Grace,
Oct. 30, 2007, ECF No. 21.

Finally, Salser failed to submit her

pre-K screening data by the October 31, 2007 deadline and failed
to inform Arnold that she anticipated not being able to meet
that deadline.6
61:14-62:10
issue

as

Arnold Aff. ¶¶ 30-31; see also Arnold Dep.

(stating

much

as

that

letting

missing
[Arnold]

the

deadline

know

so

was

that

“not

[she

the

could]

provide the support to prevent missing the deadline”).
In November 2007, Salser reported taking three-and-a-half
days of leave out of nineteen work days.
6

That same month, the

During the 2006-2007 school year Salser claimed that she was unable
to conduct pre-K screenings by the October 31 deadline because she
“had no way to get down to the classroom to do it.”
Salser Dep.
229:1-5.
But by the 2007-2008 school year, the School District had
provided Salser with a scooter to help her get around the building.

13

School

District‟s

data

compliance

specialist

informed

Arnold

that IEPs for five of Salser‟s students were out of compliance
because paperwork had not been submitted indicating that the
students‟

IEP meetings

deadlines.

had been held by their

annual review

Salser failed to communicate with Arnold in advance

of missing the annual review deadlines for the five students, or
otherwise inform Arnold that she needed assistance conducting
annual reviews.
In December 2007, Salser reported taking one day of leave
out of fourteen work days.

And, on December 5, 2007, Salser did

not provide SLP services at Coile because she could not “move
very much.”
Grace

&

A.

Salser Dep. Ex. 161, Email from M. Salser to H.
Arnold,

December 20, 2007,

Dec.

Arnold

5,

2007,

issued

ECF

Salser

No.
a

21.

fourth

On
GTDRI

deficiency notification for failing to communicate in advance of
missing an evaluation deadline.
Arnold

stated

that

she

In that deficiency notification

“understood

that

[Salser‟s]

absences

created a very difficult situation for achieving this deadline,”
but further explained that she was “concerned that [Salser] did
not communicate to [Arnold] that this was going to be late so
that

possibly

[Arnold]

could

have

helped

make

this

happen.”

Arnold Aff. Ex. E, GTDRI Deficiency Notification, Dec. 20, 2007,
ECF No. 40-4.

Arnold further explained that “[t]he state has

14

left no room for error in meeting timelines.
mandate is to be at 100%.”

Our goal and

Id.

On January 11, 2008, Salser sent an e-mail to Blake and
Assistant

Superintendent

of

Human

Resources

Bud

Bierly,

requesting “a single school assignment in a building that is ADA
compliant.”

Salser

Dep.

Ex.

176,

Letter

via

Email

from

Salser to R. Bierly & M. Blake, Jan. 11, 2008, ECF No. 21.

M.

That

same day Bierly responded to Salser‟s email and asked that he,
Blake,

and

Salser

meet

“in

issues [Salser] addressed.”

the

very

near

future

to

discuss

Salser Dep. Ex. 177, Email from R.

Bierly to M. Salser & M. Blake, Jan. 11, 2008, ECF No. 21.
meeting, however, did not occur.
January

11

email,

Salser

That

Shortly after sending her

contracted

tuberculosis

and

became

unable to work.
On January 17, 2008, Arnold informed Salser that one of her
files was being reviewed in connection with a Medicaid audit and
Arnold noticed that the file did not include required report
card data for the 2006-2007 school year.

Arnold Aff. Ex. H.,

Email from A. Arnold to M. Salser, Jan. 17, 2008, ECF No. 40-4.
In response, Salser told Arnold “I‟ll get it to you.”

Arnold

Aff. Ex. H., Email from M. Salser to A. Arnold, Jan. 17, 2008,
ECF No. 40-4.

Salser, however, did not provide the report card

data to Arnold.

Arnold Aff. ¶ 37.

After January 18, 2008,

Salser stopped responding to Arnold‟s emails and did not return

15

her phone calls.

Id. ¶ 38.

For the rest of January, Arnold did

not know why Salser was absent from work, did not have any
information about her medical condition, and did not know that
Salser anticipated being absent on a continuous or long-term
basis.

Id. ¶ 40.

On January 24, 2008, Arnold emailed Salser

because the file Salser had delivered to Arnold for the Medicaid
audit was incomplete and did not include the essential report
card data.

Arnold Aff. ¶ 41.

In the email, Arnold offered to

help Salser look for the missing data and asked whether Salser
was available to meet the following week.

Arnold Aff. Ex. N,

Email from A. Arnold to M. Salser, Jan. 24, 2008, ECF No. 40-4.
Salser did not respond to Arnold‟s offer of assistance, and she
never provided Arnold with the report card data.
41.

Likewise,

after

Salser

signed

in

Arnold Aff. ¶
to

Coile

on

January 28, 2008, Arnold sent her an e-mail asking whether she
had returned to work, but Salser did not respond.

Arnold Aff.

¶¶ 44-45; Arnold Aff. Ex. Q, Email from A. Arnold to M. Salser,
Jan. 28, 2008, ECF No. 40-4.

Arnold also continued to receive

information from School District personnel regarding problems
with Salser‟s caseload.
Emails

Between

J.

Arnold Aff. ¶ 43; Arnold Aff. Ex. O,

Semonsky

&

A.

Arnold,

Jan. 24, 2008-

Jan. 25, 2008, ECF No. 40-4 (discussing Coile student who was
supposed to receive SLP services whose file showed no evidence
of

receiving

SLP

services).

Finally,

16

on

February 4, 2008,

Salser sent an e-mail to Arnold, Blake, and Bierly stating that
she had been diagnosed with latent tuberculosis and, due to side
effects from medication for that condition, she was unable to
work.7

Arnold Aff. Ex. R, Email from M. Salser to A. Arnold, M.

Blake, & R. Bierly, Feb. 4, 2008, ECF No. 40-4.
Arnold assumed that once Salser was no longer suffering
from the side effects of her medication, she would return to
work.

Therefore,

in

anticipation

of

her

return,

Arnold

continued to review and evaluate Salser‟s performance prior to
the April 15th annual performance evaluation deadline.

Arnold

Aff. ¶ 47; see also Bierly Aff. ¶ 13 (“Annual evaluations are
generally completed by April 1st of each year, but never later
than April 15th.”).

During her continued review of Salser‟s

therapy logs, Arnold discovered that Salser had conducted seven
therapy

sessions

with

a

student

before

obtaining

parental

consent to provide special education services and had failed to
7

According
to
Salser,
she
had
contracted
tuberculosis
by
January 11, 2008, and was out of work on approved FMLA leave as of
January 17, 2008.
Pl.‟s SMF ¶¶ 108-112, 113, 114, 119.
But, as
discussed above, Salser did not make anyone at the School District
aware of her tuberculosis diagnosis until February 4, 2008.
The
School District approved Salser‟s FMLA leave on February 11, 2008 and,
only then, made Salser‟s FMLA leave retroactive to January 18, 2008.
Bierly Aff. Ex. E, FMLA Leave Approval Notification, Feb. 11, 2008,
ECF No. 40-3.
Therefore, prior to February 4, 2008, the School
District did not know why Salser was absent from work and did not have
any information about her medical condition.
E.g., Bierly Aff. ¶ 15
(“Prior to February 4, 2008, I was not aware that Salser was suffering
from a serious health condition which might qualify her for leave
under the Family Medical Leave Act („FMLA‟).”); accord Arnold Aff. ¶
46.

17

complete accurate IEP and eligibility records for thirteen of
the eighteen students she was responsible for serving at Coile.
Arnold

Aff.

¶

48.

Upon

completing

her

review

of

Salser‟s

therapy logs, Arnold decided it would be necessary to provide
Salser with a fifth GTDRI deficiency notification, issue her an
“unsatisfactory” annual performance evaluation, and place her on
a professional development plan (“PDP”) for the upcoming school
year.

Arnold Aff.

¶

49;

see also

Arnold Aff. Ex. S, CCSD

Notification & Documentation Record 5, Mar. 28, 2008, ECF No.
40-4

(documenting

deficiencies,

including

fifth

deficiency

notification related to Arnold‟s continued review of Salser‟s
therapy logs).
Arnold began drafting Salser‟s PDP in March 2008, and was
still working on it a day or two before the April 15th deadline.
Arnold Aff. ¶ 50.

Because Salser had not responded to e-mails

and was unavailable to meet with Arnold to receive and discuss
her evaluation in person, Arnold was concerned that Salser might
not receive her annual evaluation by the April 15th deadline.
Arnold

Aff.

¶

51.

Therefore,

Arnold

instructed

a

School

Resource Officer (“SRO”) to deliver Salser‟s annual performance
evaluation, PDP, and 2008-2009 school year contract to her at
home.8

Id.; Salser Aff. ¶ 13.

When the SRO arrived at Salser‟s

8

A School Resource Officer is a police officer hired by the School
District. Salser Aff. ¶ 13; Arnold Dep. 92:16-23.

18

home, he announced that he was delivering something from human
resources.

Salser Dep. 294:19-295:1.

Salser looked at it and

said, “I don‟t know what that is or what it says but I don‟t
want it.”

Id. at 295:1-3.

Id. at 295:3-4.

She shut the door and the SRO left.

When the SRO made a second attempt to deliver

Salser‟s performance evaluation, PDP, and contract, she refused
to answer her door.

Id. at 295:5-7.

in her door and left.

The SRO placed the package

Id. at 295:7-8.

Salser‟s contract for the 2008-2009 school year indicated
that she had received her “step increase,” meaning that she had
received full credit for another year of teaching experience and
had advanced on the salary scale.

Bierly Aff. ¶ 19.

Salser‟s

unsatisfactory annual performance evaluation did not impact her
ability

to

increase.
VI.

advance

on

the

salary

scale

or

receive

her

step

Bierly Aff. ¶ 19.

Salser’s Leave and Benefits
After receiving Salser‟s e-mail informing him that she had

contracted tuberculosis, Bierly sent Salser written notification
that

she

was

February 4, 2008,

approved

for

she

fifty

had

FMLA

leave

one

days

and,
of

as

FMLA

of

leave

remaining.

Bierly Aff. Ex. E, FMLA Leave Approval Notification,

Feb.

2008,

11,

January 18, 2008

ECF

No.

through

40-3.

Salser‟s

February 4, 2008

designated as FMLA leave days.

Id.

19

were

absences

from

retroactively

Salser took sixty days of

FMLA leave on a continuous basis from January 18, 2008 through
April 24, 2008.

Throughout the duration of Salser‟s FMLA leave,

Defendants maintained her health insurance benefits the same as
if

she

had

continued

continued

in

FMLA

working.

leave

Salser

status

was

between

inadvertently

April 25, 2008

and

May 23, 2008, the last day of school for the 2007-2008 school
year.
Salser

filed

an

Equal

Employment

Opportunity

Commission

(“EEOC”) charge of discrimination (“Charge”) on April 1, 2008.
Salser Dep. Ex. 191, Charge of Discrimination, Apr. 1, 2008, ECF
No. 21.

The School District was notified of Salser‟s Charge on

April 7, 2008.

Bierly

Aff.

Ex.

F,

Letter

from

EEOC

to

the

School District, Apr. 7, 2008, ECF No. 40-3.
Upon learning that Salser‟s FMLA leave had been exhausted,
Bierly informed her that she was expected to return to work on
July 31, 2008

or,

if

unable

to

do

so,

she

could

petition

Superintendent James Simms for an extended leave of absence.
Salser

Dep.

Ex.

20,

Letter

July 18, 2008, ECF No. 21.
and

was

granted

April 1, 2009.

an

from

R.

Bierly

to

M.

Salser,

On July 23, 2008, Salser requested

extension

of

leave

without

pay

through

Salser Dep. Ex. 19, Letter from M. Salser to J.

Simms, July 23, 2008, ECF No. 21; Salser Dep. Ex. 21, Letter
from J. Simms to M. Salser, July 31, 2008, ECF No. 21.

20

On
Salser‟s

March

30,

leave

was

2009,
going

two

days

to

end,

before
she

the

sent

extension

Simms

a

of

letter

requesting an additional extension of her leave of absence until
August 2009.

Salser Dep. Ex. 24, Letter from M. Salser to J.

Simms, Mar. 30, 2009, ECF No. 21.

On April 6, 2009, Simms sent

Salser a letter of non-renewal because, at the time he sent the
letter,

Simms

was

unaware

that

additional extension of leave.

Salser

had

requested

an

Simms Dep. 22:6-23:7; Salser

Dep. Ex. 25, Letter from J. Simms to M. Salser, Apr. 6, 2009,
ECF No. 21.

Simms testified that if he had known of Salser‟s

request for an additional extension of her leave, he would not
have sent the letter of non-renewal.

Simms Dep. 22:6-24:2.

Consistent with that testimony, once Simms learned of Salser‟s
request, he rescinded the April 6th letter of non-renewal before
it took effect, granted Salser‟s request for an extension of her
leave of absence, and sent her a contract for the 2009-2010
school year.

Salser Dep. Ex. 26, Letter from J. Simms to M.

Salser, June 16, 2009, ECF No. 21.
While
responsible

Salser

was

in

for

paying

leave
her

own

without
health

pay

status

insurance

she

was

premiums

directly to the Georgia Department of Community Health State
Health

Benefit

Plan

(“SHBP”).

SHBP

is

responsible

for

administering health insurance benefits for employees of local
school

districts.

Salser‟s

health

21

insurance

coverage

was

continued during her period of leave without pay pursuant to the
terms of a request which was submitted to SHBP.

Salser Dep. Ex.

22, SHBP Request to Continue Health Benefits During Leave of
Absence Without Pay, Oct. 28, 2008, ECF No. 21.
request

indicated

that

through April 2009.
April

30,

2009).

she

had

been

granted

Salser‟s SHBP
approved

leave

Id. (indicating authorized leave ended on
SHBP

continued

Salser‟s

coverage

for

one

additional month beyond her period of approved leave and then
terminated her insurance benefits after May 31, 2009.

Salser

Dep. Ex. 5, SHBP Invoice, Apr. 6, 2009, ECF No. 21 (“Our records
show that this approved period expires on May 31, 2009.

To be

eligible for coverage beyond the coverage billed above, you must
return to work or request a coverage extension . . . .”); accord
Salser Dep. Ex. 6, Certificate of Group Health Plan Coverage,
June 8, 2009, ECF No. 21.
an

additional

As discussed above, Salser requested

extension
Simms

of

her

granted

leave

of

absence

on

Salser‟s

request

on

March 30, 2009

and

June 16, 2009.

But there is no evidence that Salser or the

School District made SHBP aware of the extension at that time.
Salser subsequently emailed School District Benefits Coordinator
Darlene

Nicklow

on

July 1, 2009

and

informed

her

that

her

insurance had been terminated and that she had not received a
bill for June or July.

Salser Dep. Ex. 8, Email from M. Salser

to D. Nicklow, July 1, 2009, ECF No. 21.

22

Prior to Salser‟s

email, Nicklow was unaware that Salser‟s health insurance had
been terminated by SHBP.

See

Salser Dep. 53:10-11 (stating

Nicklow “was not aware that [Salser] wasn‟t getting the bills”);
see also Salser Dep. Ex. 8, Email from D. Nicklow to M. Salser,
July 1, 2009, ECF No. 21 (telling Salser regarding her health
insurance that “[o]nce you are on direct bill, I do not do
anything with it”).

The same day Salser informed Nicklow that

her health insurance had been terminated, Nicklow contacted SHBP
and

had

Salser‟s

May 31, 2009.

health

insurance

reinstated

retroactive

to

Salser Dep. 60:3-61:11; see also Salser Dep. Ex.

10, Email from D. Nicklow to M. Salser, July 1, 2009, ECF No. 21
(explaining

to

terminated,

that

Salser‟s

health

Salser

why

Nicklow
insurance

her

had

sent

health
SHBP

through

insurance
a

request

August 31, 2009,

had
to

been
extend

and

that

Salser would need to send SHBP any premiums she had not paid);
Salser Dep. Ex. 12, SHBP Invoice, July 7, 2009, ECF No. 21
(billing
premiums).

Salser

$753.40

for

June,

July,

and

August

2009

Salser elected not to continue her health insurance

coverage through SHBP.

Salser Dep. 61:12-62:10.

Salser has not returned to work and she remains out of work
on leave without pay.

Salser Dep. 69:17-70:9.

VII. Access to Chase Street Elementary School
During the 2006-2007 school year and the first half of the
2007-2008 school year, the students and faculty of Chase Street

23

were

temporarily

Elementary

housed

School

at

while

the

Chase

former
Street

Gaines
was

School

being

Road

renovated.

Faculty and staff moved into the newly renovated Chase Street
building during the 2007-2008 winter break.

The facade and

front structure of the original Chase Street Elementary School
was left intact and incorporated into the renovated building.
There

are

steps

which

go

up

to

the

main

building, but no handicap accessible ramp.

entrance

of

the

The side entrances

to the building are at grade level and are flanked on the north
and

south

sides

by

two

parking

handicapped parking spaces.

lots,

both

of

which

contain

Staff enter through the grade level

entrances along the side of the building by using an electronic
tag to unlock the doors.
On January 7, 2008, employees were required to report to
work at the newly renovated Chase Street building.

At that

time, faculty and staff did not have keys to the new building
because the electronic tags had not come in.

Employees entered

the building through unlocked doors at the main entrance to the
school.
remained

The

doors

locked.

To

to

the

enter

side

entrances

through

the

of

side

the
doors,

building
it

was

necessary to call the main office and have someone manually open
the

door.

When

Salser

called

the

office,

because everyone was in a faculty meeting.

no

one

answered

The following day,

Salser was able to enter the building without incident.

24

She

called the office and someone brought her scooter to her at the
side entrance.
advance

of

Salser was also issued a key that same day, in

the

employees.

arrival

of

the

electronic

keys

for

other

Salser subsequently got to her classroom by parking

her scooter near the grade-level side entrance at the end of
each

day.

When

she

came

into

the

building

the

following

morning, she would ride her scooter to her classroom.
DISCUSSION
Salser contends that Defendants discriminated against her
in

violation

of

the

ADA

by

reasonable accommodations.

failing

to

provide

her

with

Salser also claims that Defendants

interfered with her rights under the FMLA.

Finally, Salser

contends that Defendants retaliated against her for her requests
for reasonable accommodations under the ADA and for her use of
FMLA leave.
Defendants

For the following reasons, the Court finds that
are

entitled

to

summary

judgment

as

to

each

of

Salser‟s claims.
I.

Individual Capacity Claims
As a preliminary matter, the Court finds that Defendants

sued

in

their

Salser‟s

capacity

entitled

The Eleventh Circuit Court of Appeals has held that
not

amenable

to

and

summary

claims.

are

discrimination

to

as

defendants

ADA

are

judgment

“individual

to

individual

retaliation

private

suit

for

violating the antidiscrimination provision of Subchapter I of

25

the ADA.”

Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir.

2007) (per curiam).

The Eleventh Circuit has also held that

“individuals are not amenable to private suit for violating the
ADA‟s anti-retaliation provision, 42 U.S.C. § 12203, where the
act or practice opposed by the plaintiff is made unlawful by the
ADA provisions concerning employment, 42 U.S.C. §§ 12111-12117.”
Id. at 828.

Therefore, the Court finds that Defendants Bonnie

E. Jackson, James H. Simms, Jean Miller, Robert Bierly, Adam
Kurtz, and Amy Arnold are entitled to summary judgment as to
Salser‟s ADA discrimination and retaliation claims against them
in their individual capacity.9
The
individual

Court

also

capacity

finds
are

Salser‟s FMLA claims.

that

entitled

Defendants
to

summary

sued

in

judgment

their
as

to

The Eleventh Circuit has held that “a

public official sued in his or her individual capacity is not an
„employer‟ under the FMLA, and therefore there is no federal
subject matter jurisdiction over such a claim.”
Carver, 169 F.3d 683, 687 (11th Cir. 1999).

Wascura v.

Therefore, the

Court finds that Defendants Bonnie E. Jackson, James H. Simms,
Jean

Miller,

Robert

Bierly,

Adam

Kurtz,

and

Amy

Arnold

are

entitled to summary judgment as to Salser‟s FMLA claims against
them in their individual capacity.

9

Salser sued Defendant Philip D. Lanoue in his official capacity only.

26

Finally,

the

Court

construes

Salser‟s

official

capacity

claims against Philip D. Lanoue, Bonnie E. Jackson, James H.
Simms, Jean Miller, Robert Bierly, Adam Kurtz, and Amy Arnold as
claims against the School District.

See Smith v. Allen, 502

F.3d 1255, 1271 (11th Cir. 2007) (“[A]n official capacity suit
is, essentially, pleading an action against the entity of which
an officer is an agent.”) (internal quotation marks omitted),
abrogated on other grounds by Sossamon v. Texas, 131 S. Ct. 1651
(2011).
II.

Salser’s ADA Discrimination Claims
The

ADA

provides

that

no

covered

employer

shall

discriminate against “a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.”
(effective to Dec. 31, 2008).10

42 U.S.C. § 12112(a)

“To establish a prima facie case

of discrimination under the ADA, a plaintiff must show: (1) she
is disabled; (2) she is a qualified individual; and (3) she was
subjected

to

unlawful

discrimination

10

because

of

her

Because all of Salser‟s discrimination claims are based on the
School District‟s actions that occurred prior to January 1, 2009, the
Court analyzes her claims under the ADA as it existed prior to
January 1, 2009.
Fikes v. Wal-Mart, Inc., 322 F. App‟x 882, 883 n.1
(11th Cir. 2009) (per curiam) (applying pre-2009 ADA because there was
no expression of congressional intent for the amendments to apply
retroactively).

27

disability.”11

Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th

Cir. 2000); accord Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,
1255 (11th Cir. 2001).
It is undisputed that Salser is disabled within the meaning
of

the

ADA.

Salser

contends

that

the

School

District

discriminated against her on the basis of her disability by
failing to provide reasonable accommodations as required by the
ADA.12

Lucas,

257

F.3d

at

1255

(“An

employer

unlawfully

discriminates against a qualified individual with a disability
when the employer fails to provide „reasonable accommodations‟
for the disability-unless doing so would impose undue hardship
on the employer.” (citing 42 U.S.C. § 12112(b)(5)(A) (effective
to

Dec.

31,

2008)

&

29

C.F.R.

§

1630.9(a)

(effective

to

May 23, 2011))).

The School District responds that Salser was

not

individual”

a

“qualified

within

the

meaning

of

the

ADA

because she was unable to perform the essential functions of her
job with or without reasonable accommodations.
11

“The burden-shifting analysis of Title VII employment discrimination
claims is applicable to ADA claims.” Earl v. Mervyns, Inc., 207 F.3d
1361, 1365 (11th Cir. 2000).
12

Salser makes passing references to a hostile work environment in her
Amended Complaint and in response to Defendants‟ motion for summary
judgment.
Pl.‟s Am. Compl. ¶ 9, ECF No. 26; Pl.‟s Br. 6.
As the
Court explained in its Order granting Defendants‟ motion for partial
summary judgment, “[d]enial of a reasonable accommodation for a
disability is . . . a discrete act of discrimination” and “[e]ven
allegations of a „pattern‟ of discrete acts cannot be brought under a
hostile work environment theory.” Salser v. Clarke Cnty. Sch. Dist.,
No. 3:10-CV-17 (CDL), 2011 WL 56064, at *3 (M.D. Ga. Jan. 5, 2011).

28

“An

individual

is

„qualified‟

if

she,

with

or

without

reasonable accommodation, can perform the essential functions
and

job

requirements

of

the

position

the

individual

holds.”

Earl, 207 F.3d at 1365 (citing 42 U.S.C. § 12111(8) (effective
to

Dec.

31,

2008)).

“An

employer

must

provide

reasonable

accommodations for employees with known disabilities unless such
accommodations would result in undue hardship to the employer.”
Id.

“An accommodation is reasonable, and thus required under

the ADA, only if it allows the employee to perform the essential
functions of the job.”

Id.; Lucas, 257 F.3d at 1255.

“[W]hat

is reasonable for each individual employer is a highly factspecific inquiry that will vary depending on the circumstances
and necessities of each employment situation.”

Holbrook v. City

of Alpharetta, 112 F.3d 1522, 1527 (11th Cir. 1997).
Here, it is undisputed that the essential functions of an
SLP include: (1) providing therapy to students; (2) evaluating
students

for

speech

disabilities;

(3)

maintaining

accurate,

complete, and correct records; and (4) communicating with SLP
coordinator

Amy

Arnold.13

SLP

13

Job

Description

1

(defining

“Determining whether a particular job duty is an essential function
involves a factual inquiry to be conducted on a case-by-case basis.”
Lucas, 257 F.3d at 1258.
In conducting this inquiry, “consideration
shall be given to the employer‟s judgment . . . and if an employer has
prepared a written description before advertising or interviewing
applicants for the job, this description shall be considered evidence
of the essential functions of the job.”
Earl, 207 F.3d at 1365
(quoting 42 U.S.C. § 12111(8) (effective to Dec. 31, 2008)). “A job
function also may be essential if there are a limited number of

29

“nature of work” as “[d]iagnose and treat pre-school and schoolaged children through high school with various communications
disabilities” and listing other “essential functions” including
communicating

with

SLP

coordinator

complete, and correct records).

and

maintaining

accurate,

It is also undisputed that at

times Salser was unable to perform the essential functions of
her

SLP

District

position,

even

provided.

with

the

Salser

accommodations

contends,

the

however,

School

that

any

difficulty she had performing the essential functions of her
position were the direct result of the School District‟s failure
to provide her with additional reasonable accommodations.

E.g.,

Pl.‟s Br. 6 (“[Salser‟s] situation with performance became an
issue only after she was moved to work in two schools, with a
lack

of

support

staff.”);

accord

id.

at

4,

8-9.

More

specifically, Salser identifies two accommodations not provided
that

she

contends

would

have

allowed

her

to

perform

the

essential functions of her SLP position: (1) a single school
assignment,

e.g.,

id.

at

10;

and

(2)

assistance

from

her

supervisor, Amy Arnold, in performing her SLP duties, e.g. id.
(“Amy Arnold was qualified to handle SLP duties and could have
assisted Ms. Salser.”); accord id. at 8-9; see also Pl.‟s SMF ¶

employees among whom performance of the job can be distributed.”
(citing 29 C.F.R. § 1630.2(n)(2)(ii) (effective to May 23, 2011)).

30

Id.

21 (“[O]thers could have filled in for Mary Lee Salser to have
[IEP] meetings completed.”).
A.

Single School Assignment

The School District was not required to provide Salser with
a

single-school

assignment

because

she

did

not

request

any

accommodation for her dual-school assignment until a week before
she became completely unable to work.

The Eleventh Circuit has

held that “the duty to provide a reasonable accommodation is not
triggered unless a specific demand for an accommodation has been
made.”

Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d

1361, 1363 (11th Cir. 1999) (per curiam).

Moreover, the EEOC‟s

interpretative guidelines, issued pursuant to the ADA, provide
that

“[i]n

general . . . it

is

the

responsibility

of

the

individual with a disability to inform the employer that an
accommodation is needed.”

29 C.F.R. pt. 1630 App. § 1630.9

(effective to May 23, 2011).14
a

disability

has

“Once a qualified individual with

requested

provision

of

a

reasonable

accommodation, the employer must make a reasonable effort to
determine the appropriate accommodation.”

Id.

Salser contends that she “complained that the transfer to
two

schools . . . and

schools

simultaneously

her
put

having

to

additional

14

serve

students

stains

on

her

at

both

from

a

As explained above, the Court analyzes Salser‟s claims under the ADA
as it existed prior to January 1, 2009.

31

mobility

standpoint

and

difficult physically.”15
(“Having

been

responsibilities
physical

made

the

of

the

job

more

Pl.‟s Br. 9-10 (citing Salser Aff. ¶ 11

transferred
to

demands

two

from

one

put

more

schools

well-being . . . .

I

advised

school
of
my

a

for

strain

supervisors

my

on

my

that

having two schools to go between was more difficult for me.”)).
But Salser‟s

vague complaints

are not

the type of

“specific

demand for an accommodation” required to trigger the duty to
provide a reasonable accommodation.
Although

the

Eleventh

Circuit

had

Gaston, 167 F.3d at 1363.
previously

not

“determined

precisely what form the request [for reasonable accommodation]
must take,” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247,
1261 n.14 (11th Cir. 2007), it recently indicated that “for a
demand to be specific enough to trigger the duty to provide a
reasonable

accommodation,

the

defendant

„must

have

enough

information to know of both the disability and desire for an
15

Salser‟s affidavit does not specify when or to whom she registered
her complaints about her dual-school assignment.
The Court‟s own
review of the record revealed only one complaint: an August 16, 2006
email from Salser to the School District‟s Director of Human Resources
Jean Miller in which Salser stated that “the fact that I have been
moved to a school farther away from my home and given a second site
places great stress on me. It is difficult to move between the sites
and fulfill my responsibilities.”
Salser Dep. Ex. 81, Email from M.
Salser to J. Miller, Aug. 16, 2006, ECF No. 21. In addition to being
beyond the time period relevant to this action, see Salser v. Clarke
Cnty. Sch. Dist., No. 3:10-CV-17 (CDL), 2011 WL 56064 (M.D. Ga. Jan.
5, 2011) (dismissing Salser‟s ADA claims based on acts and omissions
that occurred prior to October 4, 2007), Salser‟s August 16, 2006
complaint is not the type of “specific demand for an accommodation”
required to trigger the duty to provide a reasonable accommodation,
Gaston, 167 F.3d at 1363.

32

accommodation, or circumstances must at least be sufficient to
cause

a

reasonable

[employer]

to

make

appropriate

about the possible need for an accommodation,‟”

inquiries

United States

v. Hialeah Hous. Auth., No. 10-12838, 2011 WL 989815, at *3
(11th Cir. Mar. 22, 2011) (per curiam) (emphasis added) (quoting
Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010)
(quotation

marks

omitted))

reasonable

accommodation

(discussing

demand

in

requirements

Fair

Housing

for

Act

ADA

case).

Here, it is undisputed that the School District knew of Salser‟s
disability.

But

Salser

has

not

directed

the

Court

to

any

evidence that she requested an accommodation for her dual-school
assignment.

Further,

there

is

no

indication

that

Salser‟s

dual-school assignment so obviously required accommodation that
there was no need for her to make a request.

As Salser points

out, she worked the full 2006-2007 school year at both Chase
Street and Coile, and received a satisfactory evaluation at the
end of the year.
Salser has produced no evidence that she made any request
for accommodation related to her dual-school assignment prior to
January 11, 2008, when she “formally request[ed] a single school
assignment in a building that is ADA compliant.”

Salser Dep.

Ex. 176, Letter via Email from M. Salser to R. Bierly & M.
Blake, Jan. 11, 2008, ECF No. 21.

By then, Salser had become

infected with tuberculosis and, within a week, was completely

33

unable to work.

See Bierly Aff. ¶ 17 (stating Salser‟s absences

after Jan. 18, 2008 were retroactively designated FMLA leave);
accord Pl.‟s SMF ¶¶ 108-112.
assignment

would

not

have

At that point, a single school
enabled

Salser

to

perform

the

essential functions of her SLP position.

Therefore, the Court

finds

discriminate

that

the

School

District

did

not

against

Salser by failing to provide an accommodation for her dualschool assignment that she did not ask for until it was too late
to help her.

Earl, 207 F.3d at 1365 (“An accommodation is

reasonable, and thus required under the ADA, only if it allows
the employee to perform the essential functions of the job.”).
B.

Reallocation of Essential Job Duties

The School District was also not required to reallocate
Salser‟s job functions to her supervisor and others when she was
unable to perform them because there is no evidence that Salser
requested such an accommodation.
supervisor,

Speech
handle

Language
SLP

Salser now contends that her

Coordinator

duties

and

Amy

could

have

Arnold,
assisted

“was

qualified

to

Ms.

Salser.”

Pl.‟s Br. 10; accord id. at 8-9; see also Pl.‟s SMF ¶

21 (“[O]thers could have filled in for Mary Lee Salser to have
[IEP] meetings completed.”).
Court

to

any

evidence

that

performing her SLP duties.
evidence

shows

that

Arnold

But Salser has not directed the
she

ever

requested

assistance

To the contrary, the undisputed
directed

34

Salser,

on

multiple

occasions, to inform her if she needed assistance.
Aff.

¶¶

25,

30

(discussing

Arnold‟s

offers

of

See Arnold
assistance);

Arnold Aff. Ex. C, Email from A. Arnold to M. Salser, Nov. 16,
2007, ECF No. 40-4 (“If you need help, please let me know.”);
Salser

Dep.

Ex.

196,

GTDRI

Deficiency

Notification,

Oct. 18, 2007, ECF No. 21 (directing Salser to communicate with
Arnold

in

advance

deadline).

And

if

unable

Salser

has

to
not

complete
directed

assigned
the

task

Court

by

to

any

evidence that she ever accepted Arnold‟s offers of assistance or
otherwise sought assistance from Arnold or anyone else.

See

Arnold Aff. ¶¶ 30-31, 33-34 (chronicling Salser‟s failure to
communicate

with

Arnold

in

advance

of

missing

multiple

deadlines).

Therefore, the Court finds that the School District

did not discriminate against Salser by failing to provide her
with

the

assistance

performing

her

SLP

duties

undisputed evidence shows she did not ask for.

that

the

See Gaston, 167

F.3d at 1363 (“[T]he duty to provide a reasonable accommodation
is not triggered unless a specific demand for an accommodation
has been made.”); 29 C.F.R. pt. 1630 App. § 1630.9 (effective to
May 23, 2011) (“In general . . . it is the responsibility of the
individual with a disability to inform the employer that an
accommodation is needed.”).
Further,

even

if

Salser

had

requested

assistance

in

performing her SLP duties, the School District was not required

35

to

have Arnold do

require

an

Salser‟s

employer

to

job for her.

reallocate

essential functions of a job.

job

The

duties

ADA does not
to

change

the

See Holbrook, 112 F.3d at 1527-28

(holding that the ADA did not require a police department to
accommodate

a

disabled

detective—who

was

unable

to

drive

an

automobile or collect certain kinds of evidence—with a “minor
shuffling

of

case

assignments”).

As

explained

in

federal

regulations promulgated pursuant to the ADA,
[a]n employer or other covered entity may restructure
a job by reallocating or redistributing nonessential,
marginal job functions . . . .
An employer or other
covered entity is not required to reallocate essential
functions.
The essential functions are by definition
those that the individual who holds the job would have
to perform, with or without reasonable accommodation,
in order to be considered qualified for the position.
29

C.F.R.

pt.

1630

App.

§

1630.2(o)

(effective

May 23, 2011); accord Holbrook, 112 F.3d at 1527-28.
is

undisputed

position

that

included:

the

essential

functions

(1)

providing

therapy

of
to

to

Here, it

Salser‟s

SLP

students;

(2)

evaluating students for speech disabilities; and (3) maintaining
accurate, complete, and correct records.
Salser

suggests

accommodated

her

that

the

disability

essential functions for her.
should

have

completed

School
by

having

SLP Job Description 1.
District

should

have

Arnold

perform

those

Pl.‟s Br. 8-9 (suggesting Arnold

Salser‟s

IEPs

for

her);

id.

at

10

(suggesting Arnold should have completed Salser‟s “SLP duties”);

36

see also Pl.‟s SMF ¶ 21 (“[O]thers could have filled in for Mary
Lee Salser to have [IEP] meetings completed.”).16
ADA

does

not

require

an

employer

to

But since the

reallocate

a

disabled

employee‟s essential job functions, the Court finds that the
School

District

was

not

required

to

have

Salser‟s essential job functions for her.

Arnold

complete

Holbrook, 112 F.3d at

1527-28.
C.

Summary

In summary, the Court finds that the School District did
not

discriminate

against

Salser

by

failing

to

provide

an

accommodation for her dual-school assignment that she did not
ask for until it was too late to help her.

The Court also finds

that the School District did not discriminate against Salser by
failing

to

reallocate

the

essential

functions

of

her

SLP

position to other employees, an accommodation that Salser never

16

Salser also notes that while she was at Timothy Road Elementary she
had assistance from another employee in “getting paperwork done.”
Pl.‟s Br. 4.
But after her move to Chase Street and Coile, Salser
contends that she “did not have the help from support staff, which was
reflected in complaints she began to receive about paperwork getting
done.”
Id.
Although Salser does not specify the nature of the
“paperwork,” it is undisputed that one of her essential job functions
as an SLP was to maintain accurate, complete, and correct records.
SLP Job Description 1.
Therefore, to the extent the School District
previously went beyond what the ADA required and provided her with
assistance in performing that essential function, it was not required
to continue doing so. See Lucas, 257 F.3d at 1257 n.3 (“[A]n employer
who goes beyond the demands of the law to help a disabled employee
incurs no legal obligation to continue doing so.”); Holbrook, 112 F.3d
at 1528 (holding that city‟s decision to cease previously-provided
accommodation, that exceeded requirements of ADA because it related to
essential function of plaintiff‟s job, did not violate ADA).

37

requested and that the ADA does not require.
Court finds that

the School District is

Accordingly, the

entitled to summary

judgment on Salser‟s ADA discrimination claims.
III. Salser’s FMLA Interference Claim17
Salser‟s FMLA interference claims fail as a matter of law
because she has produced no evidence that she was denied any
benefit she was entitled to under the FMLA.

“To prove FMLA

interference, an employee must demonstrate that [she] was denied
a benefit to which [she] was entitled under the FMLA.”

Martin

v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1266-67 (11th Cir.
2008).
total

Under the FMLA, an eligible employee is “entitled to a
of

12

workweeks

of

leave

during

any

12-month

period . . . [b]ecause of a serious health condition that makes
the employee unable to perform the functions of the position of
such employee.”

29 U.S.C. § 2612(a)(1)(D).

The employer is

required to maintain the employee‟s healthcare coverage while
she

is

on

FMLA

leave.

29

U.S.C.

§

2614(c);

29

C.F.R.

§

825.100(b).

17

The Eleventh Circuit has recognized two types of FMLA claims: (1)
interference; and (2) retaliation. Hurlbert v. St. Mary's Health Care
Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006).
It is not clear
whether Salser asserts claims for FMLA interference, retaliation, or
both. Compare Compl. ¶¶ 72-75, ECF No. 1 (alleging FMLA interference)
with Pl.‟s Br. 11-13 (framing FMLA claims in terms of retaliation).
Out of an abundance of caution, the Court will address any FMLA
interference claims here, and any FMLA retaliation claims below.

38

Here,

the

undisputed

evidence

shows

that

the

School

District did not deny Salser any benefit she was entitled to
under the FMLA.

Salser first notified the School District that

she was suffering from a serious health condition which might
qualify

her

for

FMLA

Arnold Aff. ¶ 46.

leave—tuberculosis—on

February

4,

2008.

A week later, Bierly sent Salser written

notification that she had been approved for FMLA leave and that
her absences from January 18, 2008 through February 4, 2008 were
retroactively designated as FMLA leave days.
17.

Salser was provided with twelve full weeks of FMLA leave,

beginning January 18, 2008.
paid

Bierly Aff. ¶¶ 16-

Salser‟s

healthcare

Id. ¶ 20.
premiums

The School District also

and

maintained

her

health

insurance benefits as if she had continued to work during the
duration of her FMLA leave.

Id. ¶ 21.

Salser‟s FMLA leave

period expired before she was able to return to work.
Salser

Dep.

July 18, 2008,

Ex.

20,

ECF

Letter
No.

from

21.

R.

Bierly

Therefore,

to

Id. ¶ 22;
M.

Salser,

Salser‟s

FMLA

interference claim fails as a matter of law because she has
produced no evidence that she was denied any benefit she was
entitled to under the FMLA.
IV.

Salser’s Retaliation Claims
Salser contends that the School District retaliated against

her for her requests for reasonable accommodations under the ADA
and for her use of FMLA leave.

39

Salser claims that the School

District

retaliated

against

her

in

the

following

ways:

(1)

issuing her an unsatisfactory annual performance evaluation in
April 2008; (2) delivering the unsatisfactory annual performance
evaluation via an SRO in April 2008, while she was out on FMLA
leave; (3) issuing her a contract non-renewal letter in April
2009; and (4) terminating her healthcare coverage in May 2009.18
Where, as here, a plaintiff presents no direct evidence of
retaliatory intent, the plaintiff may proceed under the burdenshifting
Green,
E.g.,

framework

411

U.S.

Crawford

established

792,
v.

93

in

S.Ct.

Carroll,

McDonnell

1817,

529

F.3d

36

Douglas

L.Ed.2d

961,

Corp.

668

975-76

v.

(1973).

(11th

Cir.

2008); see also Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
117

F.3d

retaliation

1278,

1287

claims

are

(11th

Cir.

assessed

1997)

under

the

(noting
same

that

framework

ADA
as

Title VII retaliation claims); Hurlbert v. St. Mary's Health
Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (applying
McDonnell Douglas burden-shifting framework to FMLA retaliation
claims).

To establish a prima facie case of retaliation, a

plaintiff

must

show

that

she

18

(1)

engaged

in

statutorily

Salser‟s Complaint also alleges that the School District retaliated
against her by failing to answer her questions regarding a fire
evacuation plan at Chase Street. Compl. ¶¶ 41-42. Salser failed to
address this claim in response to Defendants‟ motion for summary
judgment. See generally, Pl.‟s Br.
Therefore, the Court deems this
claim abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 599 (11th Cir. 1995) (“[G]rounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.”).

40

protected activity; (2) suffered an adverse employment action;
and (3) the adverse action was causally related to the protected
activity.

E.g., Hulbert, 439 F.3d at 1297.

If the plaintiff

establishes a prima facie case of retaliation, then the burden
shifts

to

the

employer

to

articulate

a

legitimate

non-

retaliatory reason for the challenged employment action.

Brown

v. Ala. Dep't of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
“If

the

employer

offers

such

legitimate

reasons

for

the

employment action, the plaintiff must then demonstrate that the
employer‟s proffered explanation is a pretext for retaliation.”
Crawford, 529 F.3d at 976 (internal quotation marks omitted).
The Court assumes for purposes of summary judgment that
Salser has established a prima facie case of retaliation based
on the alleged retaliatory acts.

The School District, however,

has articulated a legitimate, non-retaliatory reason for each of
those challenged employment actions and Salser has produced no
evidence of pretext.

Therefore, the Court finds that the School

District is entitled to summary judgment on Salser‟s retaliation
claims.
A.

Unsatisfactory Annual Performance Evaluation

First,
annual

Salser

performance

District,

however,

contends

that

evaluation
points

to

her

was

2007-2008

unsatisfactory

retaliatory.

Salser‟s

failure

The
to

School

communicate

with her supervisor Amy Arnold as a legitimate, non-retaliatory

41

reason for Salser‟s unsatisfactory evaluation.

The undisputed

evidence shows that Salser failed to communicate with Arnold and
others during the 2007-2008 school year.

For example, Salser

failed to produce therapy logs when Arnold asked for them and
failed to clarify discrepancies between her therapy logs and her
reported leave.

Despite being provided with a scooter at Chase

Street to aid her mobility, Salser also failed to complete pre-K
screenings

by

the

October 31, 2007

deadline,

inform Arnold that she needed assistance.

and

failed

to

And, after being

directed to inform Arnold if she was going to miss a deadline,
Salser failed to communicate with Arnold in advance of missing
the

IEP

annual

review

deadline for five students.

Finally,

although Salser was required to inform Arnold if she was going
to be absent for two or more consecutive days, Salser failed to
notify Arnold until February 4, 2008 that she had not reported
for

duty

at

either

January 17, 2008.

of

her

assigned

schools

since

In response, Salser has failed to produce any

evidence that the School District‟s legitimate, non-retaliatory
reason for issuing her an unsatisfactory evaluation—her failure
to

communicate

with

Arnold—was

pretext

for

retaliation.

Therefore, the School District is entitled to summary judgment
on

Salser‟s

claim

that

her

2007-2008

performance evaluation was retaliatory.

42

unsatisfactory

annual

B.

Evaluation Delivery

Salser also argues that the delivery of her unsatisfactory
annual performance evaluation to her home by an SRO, in April
2008, while she was on FMLA leave, was retaliatory.
School

District

has

articulated

legitimate,

But the

non-retaliatory

reasons for both the timing and the manner of the evaluation‟s
delivery.

First, the School District contends that it delivered

Salser‟s performance evaluation in April 2008 because, although
Salser was out on FMLA leave, it believed that she was still
entitled to an annual evaluation by April 15, 2008 under Georgia
law.

Further, the School District contends that it used an SRO

to deliver Salser‟s annual evaluation because it believed that
Salser was attempting to avoid all contact and communication
with the School District and because it believed that she would
not

sign

for

certified

mail.

Salser‟s

suggestion

that

the

evaluation “could have been delivered by overnight mail” does
nothing

to

rebut

the

retaliatory reason.

School

District‟s

legitimate,

non-

See Chapman v. AI Transp., 229 F.3d 1012,

1030 (11th Cir. 2000) (“A plaintiff is not allowed to recast an
employer‟s proffered nondiscriminatory reasons or substitute his
business judgment for that of the employer.
proffered

reason

is

one

that

might

Provided that the

motivate

a

reasonable

employer, an employee must meet that reason head on and rebut
it, and the employee cannot succeed by simply quarreling with

43

the

wisdom

of

that

reason.”);

accord

Crawford

v.

City

of

Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007).

To the

contrary,

belief

the

reasonableness

of

the

School

District‟s

that Salser was attempting to avoid communication was confirmed
when Salser refused to accept the package from the SRO and said
“I don‟t know what that is or what it says but I don‟t want it.”
Salser Dep. 295:1-3.
other

evidence

Salser has also failed to produce any
the

reasons

retaliatory

that

School

for

the

District‟s
timing

and

legitimate,
manner

evaluation‟s delivery were pretext for retaliation.

of

nonthe

Therefore,

the School District is entitled to summary judgment on Salser‟s
claim that the delivery of her unsatisfactory annual performance
evaluation was retaliatory.
C.

Non-Renewal Letter

Salser further contends that the School District‟s decision
to issue her a contract non-renewal letter in April 2009 was
retaliatory.

The School District contends that Superintendent

Simms sent Salser the non-renewal letter because Salser had not
returned from leave, and he was not aware that she had submitted
a

March 30, 2009

Consistent
Simms,

with

upon

request
this

learning

to

extend

legitimate,
of

her

leave

without

non-retaliatory

Salser‟s

March

20,

pay.

explanation,

2009

request,

rescinded the April 6th letter of non-renewal before it took
effect, granted Salser‟s request for an extension of her leave

44

of absence, and sent her a contract for the 2009-2010 school
year.

Salser

has

produced

no

evidence

that

the

School

District‟s

legitimate, non-retaliatory reason for issuing her

the

2009

April

retaliation.

contract

non-renewal

Therefore,

the

School

letter

was

District

pretext

is

entitled

for
to

summary judgment on Salser‟s claim that the April 2009 contract
non-renewal letter was retaliatory.
D.

Healthcare Termination

Finally,
District

to

the

a

role

had

extent
in

Salser

the

contends

termination

that

of

the

her

School

healthcare

coverage, the School District has articulated a legitimate, nonretaliatory reason for its actions.

After Salser‟s FMLA leave

was exhausted, her healthcare coverage was continued during her
first

extension

April 1, 2009,

of

leave

pursuant

submitted to SHBP.

to

without
a

pay,

request

which
to

lasted

continue

until

coverage

Apparently unaware that the School District

had granted Salser a second extension of leave without pay, SHBP
terminated Salser‟s healthcare coverage on May 31, 2009, one
month after her first extension of leave without pay ended.

The

School

was

District‟s

benefits

supervisor,

Darlene

Nicklow,

unaware that Salser‟s healthcare coverage had been terminated.
On the same day Salser informed Nicklow that her coverage had
been

terminated,

retroactive

to

May

Nicklow
31,

arranged

2009.

to

Salser

45

have
has

not

it

reinstated

produced

any

evidence that the School District‟s legitimate, non-retaliatory
reasons

for

its

role

(if

any)

in

the

termination

healthcare coverage were pretext for retaliation.

of

her

Therefore,

the School District is entitled to summary judgment on Salser‟s
claim

that

the

termination

of

her

healthcare

coverage

was

retaliatory.
E.

Summary

In summary, the Court finds that the School District did
not

retaliate

against

Salser

by:

(1)

issuing

her

an

unsatisfactory annual performance evaluation in April 2008; (2)
delivering the unsatisfactory annual performance evaluation via
an SRO in April 2008, while she was out on FMLA leave; (3)
issuing her a contract non-renewal letter in April 2009; or (4)
terminating

her

challenged

action,

legitimate,

healthcare
the

coverage

School

non-retaliatory

in

May

District

reason

for

2009.

has
its

For

each

articulated
actions.

a
In

response, Salser has failed to direct the Court to any evidence
that the School District‟s proffered explanation is a pretext
for retaliation.

Therefore, the Court finds that the School

District is entitled to summary judgment on Salser‟s ADA and
FMLA retaliation claims.
CONCLUSION
For the foregoing reasons, Defendants‟ Motion for Summary
Judgment (ECF No. 40) is granted.

46

IT IS SO ORDERED, this 15th day of July, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

47