Scarbrough v. Columbus Consolidated Government
Filing
28
ORDER granting 18 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 07/19/2011 (ajp).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
CINDY G. SCARBROUGH,
*
Plaintiff,
*
vs.
*
COLUMBUS CONSOLIDATED
GOVERNMENT,
*
CASE NO. 4:10-CV-33 (CDL)
*
Defendant.
*
O R D E R
Plaintiff Cindy Scarbrough (“Scarbrough”) claims that her
former
employer,
Defendant
Columbus
Consolidated
Government
(“CCG”), terminated her employment because CCG perceived her to
be
an
alcoholic.
Scarbrough
alleges
that
CCG‟s
actions
constitute discrimination under the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”).
contends
that
Georgia
Constitution
information.
CCG
violated
by
her
right
disclosing
to
her
Scarbrough also
privacy
under
private
the
medical
Presently pending before the Court is CCG‟s Motion
for Summary Judgment (ECF No. 18).
For the following reasons,
CCG‟s motion 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.”
Fed. R.
Civ. P.
56(a).
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
In
submitted
support
a
of
its
statement
motion
of
for
material
accordance with Local Rule 56.
summary
facts
judgment,
(“CCG‟s
SMF”)
CCG
in
Def.‟s Statement of Material
Facts, ECF No. 19 [hereinafter CCG‟s SMF].
Scarbrough was not
represented by counsel when CCG filed its motion for summary
judgment and SMF, and the Court notified her of the need to
respond to CCG‟s motion for summary judgment and SMF.
Notifying
Plaintiff
of
Her
Right
to
Respond,
See Order
ECF
No.
20.
Scarbrough obtained representation by the time she filed her
response
to
CCG‟s
however,
failed
motion
to
for
respond
summary
to
CCG‟s
judgment.
SMF.
Scarbrough,
Therefore,
in
accordance with Local Rule 56, the facts in CCG‟s SMF are deemed
admitted.
See M.D. Ga. Rule 56.
2
Scarbrough‟s
material
facts
failure
does
to
not,
respond
standing
judgment by default in favor of CCG.
to
CCG‟s
alone,
statement
mandate
of
summary
The Court has reviewed the
citations contained in CCG‟s SMF to “determine [that] there is,
indeed,
Herbert,
no
527
genuine
F.3d
[dispute]
1253,
quotation marks omitted).
of
1269
material
(11th
Cir.
fact.”
2008)
Reese
v.
(internal
The evidence, viewed in light most
favorable to Scarbrough, reveals the following.1
I.
Scarbrough’s Work and Disciplinary History at CCG
Scarbrough started working for CCG in 1983, and she held
various positions in several departments over the years.
See
Scarbrough Dep. 19:6-11, 21:6-8, 22:7-14, 25:8-26:14, ECF No. 27
(outlining Scarbrough‟s CCG employment history).
Ultimately,
Scarbrough worked as an administrative technician in the Solid
Waste Recycling Division of CCG‟s Public Services Department.
Id. at 27:18-21, 28:7-21.
During the timeframe relevant to this
1
In her response to CCG‟s summary judgment motion, Scarbrough relies
on a determination by the Equal Employment Opportunity Commission
(“EEOC”) that CCG terminated her because of its perception that she
had a disability, in violation of the ADA. Even if the determination
were properly before the Court—which it is not, see Reese v. Herbert,
527 F.3d 1253, 1268 (11th Cir. 2008)—the EEOC finding would not be
dispositive of the pending summary judgment motion because the Court
is required to conduct its own review of Scarbrough‟s claims.
See
Kincaid v. Bd. of Trs., 188 F. App‟x 810, 817 (11th Cir. 2006) (per
curiam) (concluding EEOC determination did not create genuine dispute
of material fact because “the [court] had to conduct a de novo review
of the claims”).
3
action,
DeAnn
Smith
was
Scarbrough‟s
immediate
supervisor.
Def.‟s SMF Ex. B, Smith Aff. ¶ 4, ECF No. 19-2.2
The record reveals that CCG disciplined Scarbrough multiple
times over the years for absenteeism and other problems.
In
1999,
be
Scarbrough‟s
permanently
supervisor
dismissed
based
recommended
on
that
excessive
she
absenteeism.
Scarbrough Dep. 47:17-48:5; Scarbrough Dep. Ex. 1, Letter from
J. Anderson to C. Dubois, Apr. 6, 1999.3
Scarbrough agreed to
several conditions for continued employment in order to keep her
job with CCG.
Scarbrough Dep. Ex. 3, Letter from R. McKee to C.
Dubois, Apr. 13, 1999.
Scarbrough
subsequently
received
written
counseling
from
Smith in 2006 regarding: (1) excessive use of personal time off,
(2) derogatory comments about her hours of work, (3) inability
to follow the instructions of supervisors without questioning or
second-guessing
the
instructions,
behavior in the office.
and
“[i]f
improvements
action will be taken.”
unprofessional
Scarbrough Dep. Ex. 29, Letter from D.
Ivey to C. Scarbrough, Dec. 29, 2006.
that
(4)
are
not
Id. at 2.
made,
Smith warned Scarbrough
stronger
disciplinary
Smith noted, however, that “I
2
DeAnn Smith‟s name has changed, and she is referred to as DeAnn Hill
and/or DeAnn Ivey in portions of the record.
It is undisputed that
DeAnn Smith is the same person as DeAnn Hill and DeAnn Ivey.
3
Plaintiff‟s name has changed, and she is referred to as Cindy Dubois
in portions of the record. It is undisputed that Cindy Scarbrough is
the same person as Cindy Dubois.
4
trust you will have no problem in making the appropriate changes
in your behavior to ensure that you meet these standards.
have
proven
in
the
past
performing your duties.”
that
Id.
you
are
highly
capable
You
of
Although Scarbrough complained to
the Director of Public Services that other employees failed to
provide accurate documentation for their absences and that she
was being unfairly punished, see Scarbrough Dep. Ex. 31, Letter
from C. Scarbrough to R. Riggs, Jan. 12, 2007, the Director‟s
review
of
each
employee‟s
Scarbrough‟s claims,
timesheets
did
not
substantiate
see Smith Aff. ¶ 7.
In August 2007, Scarbrough continued to cause problems at
work.
Smith
verbally
counseled
Scarbrough
because
of
her
excessive use of the telephone for personal calls and being loud
and disruptive in the office.
Smith Aff. ¶¶ 14-16; Smith Aff.
Ex. 4, Memo for Record, Aug. 3, 2007, ECF No. 19-2.
Several
weeks later, Scarbrough was suspended for one day without pay
due
to:
(1)
excessive
absences,
(2)
leaving
work
without
completing work orders or the necessary paperwork for processing
new employees, (3) failing to make her supervisors aware of the
work she did not complete, and (4) her filing was several months
behind.
Smith Aff. Ex. 6, Employee Disciplinary Record, Aug.
21, 2007, ECF No. 19-2.
Smith told Scarbrough that she was
being suspended because the numerous counseling sessions had not
proven effective.
Id.
Smith also warned Scarbrough that if she
5
failed to make improvements immediately, stronger disciplinary
action would be taken.
Id.
Scarbrough‟s excessive absenteeism continued.
CCG placed Scarbrough on a
March
2008.
Scarbrough
Record, Mar. 31, 2008.
in
conjunction
with
As a result,
six month probationary period
Dep.
Ex.
10,
Employee
in
Disciplinary
While an employee at CCG is on probation
a
disciplinary
action,
any
violation
of
CCG‟s rules and regulations may result in dismissal.
Scarbrough
Dep.
of
62:16-20;
Scarbrough
Dep.
Ex.
4,
Department
Public
Services: Rules and Regulations § 4.
Scarbrough received an overall satisfactory rating on her
2007-2008
performance
review.
Scarbrough
Dep.
Ex.
11,
Non-
Management Employee Performance Review, Review Period May 17,
2007 to May 17, 2008.
Scarbrough received ratings of “below
expectations” in several categories, including: (1) the “Work
Production
Quality/Quantity”
absenteeism,”
because
of
improvement
(2)
her
in
“Communications”
“communicating
the
“Reliability
excessive
taking
category
more
category
amount
personal
because
effectively
due
to
her
“excessive
and
Punctuality”
of
leave
and
need
for
off,
and
(3)
the
time
category
she
needed
improvement
with
others
without
in
taking
things personal and becoming emotional when difficulties arise.”
Id.
6
II.
Events Leading to Scarbrough’s Discharge and the March 2007
Memo for Record
On
May
12,
Administrative
2008,
Scarbrough
Services
Office
was
and
scheduled
take
the
to
open
the
of
CCG
calls
employees unable to work that day, but she arrived ten minutes
late.
Scarbrough Dep. 33:15-34:13; Smith Aff. ¶ 26.
result of Scarbrough‟s tardiness,
Gary
Stickles
As a
(“Stickles”),
the Director of Public Services, had to answer at least three
phone
calls
before
Scarbrough
arrived.
Stickles Aff. ¶ 4, ECF No. 19-1.
Def.‟s
SMF
Ex.
A.
Scarbrough asked to leave work
early for personal reasons that afternoon.
Smith Aff. ¶ 26.
The next day, Smith authorized Scarbrough‟s request to use her
Mayor City Manager‟s day off for Employee Appreciation Week.
Id. ¶ 27.
Scarbrough called in sick on May 15 and 16, 2008.
Id. ¶ 28.
While Scarbrough was home sick on May 16, she called the
office
and
accused
(“Johnson”),
of
another
being
rude
CCG
to
Scarbrough‟s
called the office earlier that day.
Stickles
Aff.
¶
5.
According
employee,
Cyndi
sister
Johnson
when
she
Scarbrough Dep. 86:3-88:5;
to
Scarbrough,
Johnson
used
profanity towards Scarbrough when she tried to talk to Johnson
about what Johnson said to her sister.
After
the
conversation
with
Scarbrough Dep. 88:4-24.
Scarbrough
ended,
Johnson
told
Stickles that she had not been rude when talking to Scarbrough‟s
7
sister,
and
Scarbrough
Johnson
called
was
the
visibly
office
upset.
again,
Stickles
and
Aff.
another
¶
6.
employee
answered the phone; Scarbrough demanded in a loud voice to talk
to Johnson.
Id. ¶ 7.
Scarbrough‟s call was transferred to
Stickles, and she attempted to continue talking about Johnson,
but Stickles informed Scarbrough that he understood that Johnson
had not been rude.
not
call
the
Id.
office
He also told Scarbrough that she should
again
that
day.
Id.
Stickles
told
Scarbrough that they would discuss the matter further on Monday
when she returned to work.
Scarbrough
also
Id.
called
Smith
regarding
her
sister‟s
conversation with Johnson, and Smith informed Scarbrough that
she had heard the conversation and that Johnson had not been
rude.
Smith Aff. ¶ 29.
Smith noticed that during the phone
call Scarbrough slurred her words and sounded intoxicated.
Id.
When Scarbrough continued to talk about Johnson and would not
listen to Smith, Smith became upset and used profanity towards
Scarbrough.
Id.
Smith
informed
Stickles
of
her
use
profanity, and Stickles disciplined her for the incident.
of
Id.;
Stickles Aff. ¶ 11.
The following Monday, Stickles, Smith and Scarbrough met to
discuss
Scarbrough‟s phone calls to the office.
During the
meeting, Scarbrough raised her voice and cursed at Stickles and
Smith.
Smith Aff. ¶ 30; Stickles Aff. ¶ 8.
8
As a result of this
inappropriate
Scarbrough
behavior,
should
be
Stickles
suspended
dismissal was considered.
and
Smith
without
pay
decided
while
that
permanent
Smith Aff. ¶ 31; Stickles Aff. ¶ 9.
Smith sent Scarbrough a letter outlining Scarbrough‟s multiple
violations
of
CCG‟s
rules
and
regulations
during
her
probationary period, and the letter informed Scarbrough that she
had until May 23, 2008 to submit a response.
Scarbrough Dep.
Ex. 12, Letter from D. Hill to C. Scarbrough, May 19, 2008.
Scarbrough responded in writing that she had been discriminated
against but did not identify how CCG discriminated against her.
Scarbrough
Dep.
Ex.
13,
Stickles, May 21, 2008.
Letter
from
C.
Scarbrough
to
G.
Stickles scheduled another meeting with
Scarbrough and Smith to discuss the situation.
Stickles Aff.
¶ 12.
In
preparation
for
the
Scarbrough‟s personnel file.
meeting,
Id. ¶ 13.
Stickles
reviewed
Stickles read a “Memo
for Record” prepared by Smith based on a conversation that Smith
had with Scarbrough in March 2007 (“March 2007 Memo”).
March
2007
Memo
documented
a
conversation
between
Id.
The
Smith
and
Scarbrough that was initiated by Scarbrough when she asked Smith
if she could talk to her off the record as a friend.
Smith Aff.
Ex. 3, Memo for Record, Mar. 22, 2007, ECF No. 19-2 [hereinafter
March
2007
Memo].
Smith
and
telephone one night after work.
Scarbrough
Id.
9
talked
over
the
Scarbrough told Smith that
she had an alcohol problem and admitted that she drank five to
six glasses of wine every evening and that on weekends and days
Id.4
off she drank all day.
honor
Scarbrough‟s
request
Smith acknowledged that she would
to
keep
the
conversation
off
the
record, but Smith told Scarbrough that she put Smith “in a bad
position
because
procedures.”
it
Id.
was
[Smith‟s]
responsibility
to
follow
Smith warned Scarbrough that “if she wasn‟t
doing what she [was] supposed to do that [Smith] would have to
report this to [the Director] and she would have to go the „Last
chance agreement‟ route.”
Id.
Scarbrough said she understood
the policy and the position she put Smith in and promised Smith
that
she
would
together.
envelope
Id.
and
maintained
personnel
do
whatever
was
necessary
to
get
herself
Smith placed the March 2007 Memo in a sealed
kept
for
file
the
envelope
Scarbrough
maintained
in
separate
by
the
a
from
Human
personnel
file
Scarbrough‟s
Resources
Smith
formal
Department.
Smith Aff. ¶ 13.
When Scarbrough showed up for the meeting to discuss her
potential dismissal, Stickles immediately smelled alcohol on her
breath
and
believed
she
may
have
4
come
to
work
intoxicated.
Scarbrough admits that the conversation took place but denies that
she ever discussed the topic of alcohol with Smith.
Scarbrough Dep.
183:7-184:15.
Scarbrough‟s claim that CCG fired her based on the
perception that she was an alcoholic, however, relies on the existence
of the March 2007 Memo to support her contention that CCG regarded her
as an alcoholic.
10
Stickles Aff. ¶ 15.
When confronted by Stickles, Scarbrough
denied that she had been drinking.
Scarbrough Dep. 136:9-21,
137:16-19.
Scarbrough also told Stickles that “if I‟m on my own
time,
none
it‟s
214:8-12.
of
[Stickles‟s]
business
what
I
do.”
Id.
Prior to the meeting, Smith and Stickles agreed on
three conditions for Scarbrough‟s continued employment with CCG:
(1) that she be placed on probation for one year, (b) that for
any absence in the future she would be required to provide a
note from a physician explaining why she could not come to work,
and (c) that she would refer herself to a drug and alcohol
treatment program.
Smith Aff. ¶ 33; Stickles Aff. ¶ 14.
meeting,
presented
agreement
Stickles
for
the
drug
and
Scarbrough
alcohol
with
a
treatment
At the
self-referral
program
and
insisted she sign it in order to keep her employment with CCG.
Scarbrough Dep. 138:7-139:25; Scarbrough Dep. Ex. 19, Columbus
Consolidated Government: Employee Assistance Referral Agreement,
May 23, 2008.
Scarbrough said she would sign the agreement only
under duress, because she denied she had a drinking problem.
Scarbrough Dep. 139:13-140:5.
Stickles advised Scarbrough that
she had until the following Tuesday to think about it and sign
the form.
Stickles Aff. ¶ 17.
Scarbrough does not remember
discussing the other two conditions of her continued employment
at the meeting or receiving a letter from Stickles outlining the
three conditions of her continued employment.
11
Scarbrough Dep.
140:8-141:12; but see Scarbrough Dep. Ex. 18, Letter from G.
Stickles to C. Scarbrough, May 27, 2008.
After the meeting, Scarbrough spoke to the Assistant City
Attorney to discuss her pending dismissal, and the Assistant
City Attorney reported to Stickles that she smelled alcohol on
Scarbrough‟s
Scarbrough
breath.
told
Stickles
Stickles
Aff.
that
she
¶
18.
would
The
not
agree
conditions for her continued employment with CCG.
Accordingly,
Scarbrough
was
terminated.
next
to
day,
the
Id. ¶ 19.
Stickles
sent
Scarbrough a letter confirming his reasons for her termination.
Scarbrough
Dep.
Ex.
18,
Letter
from
G.
Stickles
to
C.
Scarbrough, May 27, 2008.
DISCUSSION
I.
Scarbrough’s ADA Claims
Scarbrough argues that CCG violated the ADA by terminating
her based on her perceived disability—alcoholism.
Scarbrough‟s
discrimination claim is based on her termination that occurred
on May 27, 2008, prior to the amendments to the ADA that took
effect January 1, 2009.
See ADA Amendments Act of 2008, Pub. L.
No. 110-325 § 8, 122 Stat. 3553, 3559.
Congress did not express
intent for the amendments to apply retroactively and therefore,
they are not applicable here.
F.
App‟x
882,
883
n.1
See Fikes v. Wal-Mart, Inc., 322
(11th
12
Cir.
2009)
(per
curiam).
Accordingly, the Court analyzes Scarbrough‟s claim under the ADA
as it existed prior to January 1, 2009.
The
pre-2009
“discriminat[ing]
disability
ADA
against
because
of
the
prohibits
a
an
qualified
disability
employer
individual
of
such
from
with
a
individual
in
regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training,
and
other
terms,
conditions
42 U.S.C. § 12112(a) (2008).
and
privileges
of
employment.”
To establish a prima facie case of
discrimination under the ADA, Scarbrough must demonstrate that
(1) she had a disability, (2) she was qualified to perform her
job,
(3)
she
was
discharged,
and
(4)
her
disability
was
a
substantial or motivating factor that prompted CCG to terminate
her employment.
Collado v. United States Parcel Serv. Co., 419
F.3d 1143, 1152 n.5 (11th Cir. 2005).
Scarbrough must first establish that she has a disability
under the ADA.
A disability is defined in the pre-2009 ADA as
“(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual; (B)
a record of such an impairment; or (C) being regarded as having
such
an
impairment.”
42
U.S.C.
§
12102(2)(A)-(C)
(2008).
Scarbrough argues she is entitled to ADA protection because CCG
regarded her as disabled.
A plaintiff is regarded as disabled
if she: “(1) has an impairment that does not substantially limit
13
a major life activity, but is treated by an employer as though
it does; (2) has an impairment that limits a major life activity
only because of others‟ attitudes towards the impairment; or (3)
has no impairment whatsoever, but is treated by an employer as
having
a
disability
as
recognized
by
the
ADA.”
Hilburn
Murata Elecs. N. Am., 181 F.3d 1220, 1230 (11th Cir. 1999).
with
actual
disabilities,
a
perceived
impairment
must
v.
“As
be
believed to substantially limit a major life activity of the
individual.”
Id.
Scarbrough
asserts
that
she
is
not
an
alcoholic.
She
contends that CCG perceived her to be an alcoholic and fired her
as
a
result.
Scarbrough
identified
work
as
the
major
life
activity that CCG allegedly thought she was unable to perform.
Pl.‟s Br. in Opp‟n to Def.‟s Mot. for Summ. J. 8, ECF No. 24
(“The Defendant perceived the Plaintiff to be unable to perform
a major life activity, namely, doing her job.”).
Scarbrough
claims the decision to condition her continued employment on
signing
the
self-referral
agreement
demonstrates
that
CCG
regarded her as an alcoholic incapable of working within the
policies of CCG.
CCG‟s requirement that she sign the self-
referral agreement, however, does not show that CCG perceived
Scarbrough as unable to do her job.
Even if CCG thought that
Scarbrough was an alcoholic, CCG expressly gave her a chance to
continue her employment.
See Roberts v. Rayonier, Inc., 135 F.
14
App‟x
351,
356
(11th
Cir.
2005)
(per
curiam)
(“We
reject
[plaintiff‟s] argument that [defendant‟s] requirement . . . that
he
sign
the
last
chance
agreement
is
[defendant] regarded him as disabled.
strong
evidence
that
To the contrary, the
evidence rebuts any such perception on [defendant‟s] part.
Far
from treating him as unable to perform his job, or severely
restricted in his job, [defendant] expressly allowed [plaintiff]
to continue.”).
Smith and Stickles continued to view Scarbrough
as able to do her job as long as she kept her attendance and
other
problems
under
Stickles Aff. ¶ 21.
control.
See
Smith
Aff.
¶¶
12,
36;
Stickles and Smith were allowed to hold
Scarbrough to the same standards as other CCG employees.
See
42 U.S.C.§ 12114(c)(4) (2008) (providing that an employer can
“hold
an
employee
. . .
who
is
an
alcoholic
to
the
same
qualification standards for employment or job performance and
behavior that such entity holds other employees, even if any
unsatisfactory performance or behavior is related to the . . .
alcoholism of such employee.”).
Moreover, even if the evidence did not refute Scarbrough‟s
contention that CCG regarded her as unable to perform her job,
the
evidence
still
does
not
establish
that
CCG
regarded
Scarbrough as substantially limited in the major life activity
of working.
“When the major life activity under consideration
is that of working, the statutory phrase „substantially limits‟
15
requires, at a minimum, that [the] plaintiff[] allege [she is]
unable to work in a broad class of jobs.”
at 355.
Roberts, 135 F. App‟x
“The inability to perform a single, particular job does
not constitute a major limitation in the major life activity of
working.”
Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th
Cir. 2004).
“Thus, an impairment must preclude—or at least be
perceived to preclude—an individual from more than one type of
job,
even
choice.”
if
the
job
foreclosed
is
the
individual‟s
job
of
Id.
For the purposes of this summary judgment Order, the Court
accepts
as
Scarbrough
true
was
Scarbrough‟s
an
alcoholic,
contention
when
in
that
fact,
CCG
she
thought
was
not.
Scarbrough failed to present any evidence, however, that CCG
regarded
Scarbrough
as
being
substantially
ability to perform a broad category of jobs.
limited
in
the
In summary, the
record does not reveal any evidence that CCG regarded Scarbrough
as unable to work in a broad category of jobs as a result of her
perceived alcoholism.
The record also does not establish that
CCG perceived Scarbrough as unable to perform her own job.
For
all of these reasons, there is no genuine dispute here—CCG did
not regard Scarbrough as disabled for ADA purposes, and CCG is
entitled to summary judgment.
Although not expressly argued by Scarbrough in her response
brief, the Court rejects any claim by Scarbrough that she had a
16
record
of
a
plaintiff
disability
has
a
based
“record
of
on
such
the
March
impairment”
2007
if
Memo.
she
A
“has
a
history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major
life activities.”
Hilburn, 181 F.3d at 1229.
The definition is
met “if a record relied on by an employer indicates that the
individual has or has had a substantially limiting impairment.”
Id.
Nothing in the March 2007 Memo indicates that any alcohol
use by Scarbrough substantially limited the major life activity
of working in the past.
Further, the language in the March 2007
Memo
claim
contradicts
any
by
Scarbrough
that
she
was
misclassified as having an impairment that substantially limited
her ability to work.
See March 2007 Memo (noting that Smith
allowed the conversation to be off the record because Smith
“believe[d] [Scarbrough] [could] do it.”).
genuine dispute as to this issue.
Thus, there is no
For ADA purposes, Scarbrough
had no record of a substantially limiting impairment.
II.
Scarbrough’s Privacy Claims
A.
Violation of the Georgia Constitution
Scarbrough claims that CCG violated her right to privacy
under
the
disclosure
Constitution
Georgia
of
Constitution
her
gives
its
medical
by
making
information.
citizens
a
right
to
an
unauthorized
“The
privacy
Georgia
that
is
broader than that recognized by the United States Constitution.”
17
Padgett v. Donald, 401 F.3d 1273, 1281-82 (11th
Cir. 2005).
Courts must carefully scrutinize cases in which an individual‟s
privacy rights may have been infringed.
Id. at 1282.
“The
right to privacy protects matters that a reasonable person would
consider private.”
that
“a
patient‟s
Id.
The Georgia Supreme Court recognizes
medical
information,
as
reflected
in
the
records maintained by his or her medical providers, is certainly
a
matter
private.”
(2000).
which
a
reasonable
would
consider
to
be
King v. State, 272 Ga. 788, 790, 535 S.E.2d 492, 495
Accordingly,
[Georgia‟s]
person
citizens
“the
clearly
personal
are
medical
protected
guaranteed by [Georgia‟s] constitution.”
by
records
that
right
of
as
Id.
Although Georgia recognizes a right to privacy of personal
medical
records
maintained
by
a
medical
provider,
Scarbrough
could not reasonably expect the information in the March 2007
Memo to be kept out of her personnel file or from Stickles under
the circumstances here.
First, the information in the March
2007 Memo was not medical information maintained by her medical
provider,
but
rather
disclosed to her employer.
information
Scarbrough
voluntarily
Second, while Smith agreed that the
conversation would be “off the record,” she specifically told
Scarbrough that if “she wasn‟t doing what she [was] supposed to
do that [Smith] would have to report this to [the Director] and
she would have to go the „Last chance agreement‟ route.”
18
March
2007
Memo.
Scarbrough
acknowledged
that
her
confession
put
Smith in a bad position, and Scarbrough said she understood the
policy.
Id.
expectation
Therefore, Scarbrough did not have a reasonable
of
privacy
regarding
the
conversation
that
Smith
documented in the March 2007 Memo, and her privacy claim under
the Georgia Constitution fails.5
B.
Unlawful Disclosure under the ADA
Any
claim
by
Scarbrough
that
a
violation
of
the
ADA
occurred because Smith disclosed the contents of the March 2007
Memo to Stickles or maintained it in her personnel file also
fails.
The nondisclosure provisions of the ADA, 42 U.S.C. §
12112(d),
and
the
corresponding
regulations,
29
C.F.R.
§
1630.14(c), do not apply when the employee voluntarily discloses
to the employer the information the employee claims should have
been kept confidential or maintained in a separate file.
Cash
v.
Smith,
231
F.3d
1301,
1308-09
(11th
Cir.
See
2000)
(concluding that the ADA‟s provisions against disclosure did not
“govern voluntary disclosures initiated by the employee”).
the
extent
Scarbrough
asserts
that
CCG
violated
the
To
ADA‟s
nondisclosure provisions by keeping the March 2007 Memo in her
personnel
file
or
disclosing
it
to
Stickles,
her
claim
is
insufficient as a matter of law.
5
Because Scarbrough cannot establish that CCG violated her right to
privacy, the Court declines to evaluate CCG‟s claim that it is
entitled to sovereign immunity.
19
CONCLUSION
Based on the foregoing, CCG‟s motion for summary judgment
(ECF No. 18) is granted.
IT IS SO ORDERED, this 19th day of July, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
20
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