KASSA v. SYNOVUS FINANCIAL CORPORATION

Filing 42

ORDER granting 32 Motion to Amend/Correct; granting 14 Motion for Summary Judgment() Ordered by US DISTRICT JUDGE CLAY D LAND on 1/3/2019 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TONY KASSA,

*

Plaintiff,

*

vs.

*

SYNOVUS BANK,

*

Defendant.

CASE NO. 4:18-cv-2 (CDL)

*

O R D E R
Tony Kassa was terminated from his job at Synovus Bank
after he told a female bank teller that he hates working with
women.

Kassa

claims

that

he

had

a

disability

that

Synovus

refused to accommodate and that he made the statement when his
disability flared up.

Kassa brought discrimination claims under

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et

seq.1

claims.

Synovus

seeks

summary

judgment

on

all

of

Kassa’s

As discussed below, the Court grants Synovus’s summary

judgment motion (ECF No. 14).
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.”
1

Fed. R.

Kassa initially sued Synovus Financial Corporation, but Synovus Bank
was his employer. Kassa filed a motion to amend his complaint to name
the correct Defendant, and there was no objection.
Accordingly,
Kassa’s motion for leave to amend (ECF No. 32) is granted and Synovus
Bank is substituted as the Defendant.

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.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
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
Viewed in the light most favorable to Kassa, the present
record reveals the following facts.
Kassa began working for Synovus in 2015.

Before he joined

Synovus, Kassa served in the U.S. Army for more than a decade;
worked in various information technology roles for employers in
Columbus, Georgia; received a Bachelor of Arts in communication
information

systems

maintenance;

worked

in

the

economic

development department at Columbus Technical College; and was a
Cisco/Network Instructor at Virginia College.
Over

the

depression,

years,

anxiety,

Kassa

has

intermittent

received

explosive

treatment

disorder,

for

bipolar

disorder, alcohol addiction, paranoid personality disorder, and
impulse
Kashmira

control
Parekh,

disorder.
wrote

a

In
“To

2013,
Whom

2

it

Kassa’s
May

psychiatrist,

Concern”

letter

explaining that Kassa was under Parekh’s care for “Intermittent
Explosive Disorder, Paranoid Personality Disorder, and Alcohol
Abuse.”
2013),

Def.’s Mot. for Summ. J. Ex. F, Parekh Letter (Oct. 23,
ECF

No.

14-8.

The

same

year,

Kassa’s

primary

care

physician, Jatin Pithadia, wrote a “To Whom it May Concern”
letter

explaining

“Alcohol
Bipolar

related
issues.”

that

Kassa

illnesses,
Def.’s

was

under

Depression,

Mot.

for

Summ.

Pithadia’s
Anger
J.

Ex.

care

for

issues,

and

G,

Pithadia

Letter (Nov. 11, 2013), ECF No. 14-9.
Synovus hired Kassa as a Network Support Analyst, Lead in
November 2015.
Center,

and

his

His job was to manage the Network Operations
team

monitored

Synovus’s

websites,

automated

teller machines (“ATMs”), server performance, and transaction
servers to make sure they worked properly.

If there was a

problem, the Network Operations team determined its root cause
and contacted the appropriate people to fix the problem.
When Kassa began working at Synovus, he worked the night
shift Friday through Monday, and his supervisor was Diana Young.
During his training, Kassa told Young “that he had issues . . .
sometimes he would get angry or upset;” Young believed Kassa had
post traumatic stress disorder.
No. 36-10.

Young Dep. 39:7-10, 43:5-6, ECF

Kassa asked Young if it would be a problem “if he

needed to get up and . . . take a break” when that happened.
Id. at 39:12-13.

Young told Kassa that there was no problem

3

with him getting up to walk around as long as his area was
covered, people knew where he was, and he could be reached if
needed.

Id. at 39:12-20, 42:16-24.

arrangement worked.

According to Young, this

Kassa also told his coworkers that “they

had nothing to worry about because [he] wasn’t violent and [he]
just speak[s] the truth.”

Kassa Dep. 109:9-12, ECF No. 22.

And, Kassa stated that his disorders were under control when he
took his medicine and took a short break.

Id. at 108:17-19,

109:7-9.
In

2016,

Synovus

decided

to

outsource

the

Network

Operations Center functions to an Indian company called Happiest
Minds.

The transition began in July 2016.

Many of Kassa’s

coworkers were laid off as part of the transition, but Kassa’s
supervisors wanted to keep him because he was a hard worker,
very knowledgeable, and very smart.

Kassa’s supervisors wanted

a network engineer expert like Kassa to support the ATM team,
which handled customer service calls for issues with Synovus
ATMs.
he

So, Kassa was moved to the ATM team day shift, although

remained

in

the

Network

Operations

Center

until

the

transition to Happiest Minds was complete in February 2017 and
officially transitioned to the ATM team February 27, 2017.

The

new

and

position

involved

answering

customer

service

calls,

Kassa told Young that he was concerned about having to answer
the phones on the day shift.

Young believed that the position

4

was not a good fit for Kassa, but it “was like the last resort
of choices [Young and senior director Antonio Sampson] had for
. . . Kassa.”

Young Dep. 48:6-21.

Kassa also expressed his

concerns to his senior director, Antonio Sampson, and to human
resources manager Charles Burks.

He told them that the ATM team

was “not a good place for [him] to go” because he was “going to
end up losing [his] temper talking to somebody on the phone.”
Kassa Dep. 168:17-19.

It was Sampson’s intention for Kassa to

be a technical resource who would assist ATM technicians in
resolving
calls.

technical

issues,

not

directly

answering

Sampson Dep. 33:14-34:17, ECF No. 18.

reassigned

during

the

transition,

and

he

telephone

But Sampson was
was

no

longer

responsible for Kassa’s department.
In August 2016, Kassa updated his team member profile to
state that he is disabled; the profile does not contain any
specific information regarding his disability.
Kassa’s supervisor in October 2016.2

Wes Mason became

Kassa told Mason, “I have a

condition that sometimes I can’t control what I say.

Moving me

to the phones is not going to be a good idea and I’m probably
going to get fired[.]”3

Kassa Dep. 111:22-112:1.

At the time,

Kassa did not provide Mason with any documentation regarding his

2

Kassa also applied for the supervisor job, but Mason got it. Kassa
does not assert a failure to promote claim based on this decision.
3 Mason denies that Kassa told him he had a disability.
But Kassa
testified that he did tell Mason about his disorders, and the Court
must view the record in the light most favorable to Kassa.

5

condition, and Mason did not ask for any.

Kassa later asked

Mason if he was supposed to answer the phones.

Mason said,

“yeah, that’s kind of your job.”

Kassa asked

Id. at 117:2-5.

if he could “just talk to the technicians.”
Mason

replied

that

he

did

not

have

enough

Id. at 117:7-9.
people

for

that.

Kassa also applied for positions outside the ATM team, but he
was not selected.
from

home,

but

He asked for permission to work nights or

those

requests

were

denied;

the

ATM

support

position could not be performed from home “because the Synovus
telephone system does not enable calls to be routed to off-site
employees,” and the network support duties Kassa had previously
performed at night had been outsourced to Happiest Minds.
Aff. ¶ 13, ECF No 14-12.

Mason

Finally, Kassa told Mason that he may

need “to get up and take a break.” Kassa Dep. 117:17-19.

Kassa

did not point to evidence that Mason told him he could not take
a break as Young had permitted him to do.
In

November

2016,

Kassa

was

written

up

for

failure

to

report a server outage properly, which resulted in a lengthy
outage that had “a major impact on business operations.”

Def.’s

Mot. for Summ. J. Ex. N, Team Member Counseling Form 2 (Nov. 8,
2016), ECF No. 14-16.
typically

uses

a

The counseling form states that Synovus

progressive

disciplinary

with documented verbal counseling.

Id. at 1.

process,

beginning

But the form also

states that Synovus “reserves the right to escalate disciplinary

6

procedures . . . at any time based upon the specific situation
and

business

conditions.”

Id.

And,

it

says

that

a

first

written warning like the one Kassa received may be used “when
the severity of an issue warrants.”

Id.

Kassa does not dispute

that the incident happened, but he believes that he should have
received verbal counseling instead of a written warning.

He did

not point to any evidence to suggest that Synovus skipped the
verbal warning because of Kassa’s disorders.
Kassa’s first performance review with Mason was in January
2017.

Mason rated Kassa as “Exceeds Expectations” in technical

resource but “Below Expectations” in team performance.

Def.’s

Mot. for Summ. J. Ex. O, Performance Review Report 2-3, ECF No.
14-17.

Mason noted that if the review were based solely on “the

technical
rockstar.”

side

of

things,”

Id. at 3.

Kassa

would

“be

reflected

as

a

He further noted that valuable skills for

support team roles like Kassa’s include being “open to working
with other teams” and “engaging others.”

Id.

Mason also stated

that although Kassa’s night shift peers were “deeply loyal to
him,” there was “a definite disconnect” between Kassa and the
rest of the team, “and there have been some issues because of
this.”

Id. at 2.

Mason stated that he would like to see Kassa

“be less confrontational . . . , more open to suggestions, and
more able to work with his peers, without requiring management
intervention or assistance.”

Id.

7

Mason concluded by stating

that Kassa had “a ton of potential” and would do “great things”
with

Synovus

if

he

could

“get

past

some

of

the

attitude/perception issues and start fresh with his peers.”
at 4.

Id.

Kassa agreed that his potential was “great” and that he

just needed “to work on [his] communication issues.”

Id.

The

performance review report does not mention any disability or
request for accommodations, but Kassa asserts that he and Mason
discussed

his

anger

disorder

during

the

performance

review

meeting and that he asked to be taken off the phones.

Kassa

Dep. 332:3-333:7.
In late January 2017, Kassa sent emails to Mason and others
regarding the Happiest Minds transition.

In one email, which he

sent to the entire team, including the Happiest Minds personnel
(he asserts that he accidentally included them), Kassa asked
when Synovus team members would “stop showing and telling [the
Happiest

Minds

again[.]”

resources]

the

same

things

over

and

over

Def.’s Mot. for Summ. J. Ex. Q, Email from T. Kassa

to W. Mason, et al., (Jan. 28, 2017), ECF No. 14-19.

In a

separate email, Kassa attached several instant message chat logs
between

himself

and

Happiest

Minds

personnel,

following:
Ashe,Perron 10:33 PM
what is the problem with the atm list
Gunti,Rajesh 10:34 PM
give you in 2 min perron

8

including

the

Kassa,Tony 10:37 PM
Why Has No One done anything with the SQL Alert that
is over 30 mins old?
Narsale,Chandrakant 10:37 PM
we are checking.
Kassa,Tony 10:38 PM
nothing to check handle the Alert. How often do you
check our screens?
Narsale,Chandrakant 10:40 PM
Sorry Tony, we areworking on it.
Kassa,Tony 10:41 PM
You did not answer my question.. How Often do You
Check Our Screens compared to others, Please Answer...
Kassa,Tony 10:53 PM
I want Answeres
Gunti,Rajesh l0:56 PM
Sorry, Tony for the late reply
we are monitoring the allerts continuesly
Kassa,Tony 10:56 PM
No you are not, it was up there for 35 mins
How many oher things are you doing
Lets try this again
You did not answer my question.. How Often do You
Check Our Screens compared to others, Please Answer...
Gunti,Rajesh 10:57 PM
we are doing all the tasks
Like Monitoring , ATM’s and Calls
Kassa,Tony 10:58 PM
Clients
Gunti,Rajesh 10:58 PM
yes
Kassa,Tony 10:59 PM
So You more clients than just us to watch? is that
what your saying?

9

Gunti,Rajesh 11:00 PM
sorry , i did not get you
Def.’s Mot. for Summ. J. Ex. R, Email from T. Kassa to W. Mason
& J. Rang (Jan. 28, 2017), ECF No. 14-20.

Another Synovus team

member, Josh Marshall, also joined the chat:4
Marshall,Josh 11:00 PM
Other than Synovus NOC, what other job are you doing?
Chandrakant and Danda, you guys better answer as well.
Narsale,Chandrakant 11:01 PM
Sure josh.
Shagavan,Danda 11:0l PM
sure josh
we are doing syovus NOC jobs only.
Marshall,Josh 11:02 PM
Then why is it taking you so long to look at our
alerts, atms, emails everything that jumps on the
screen.
Narsale,Chandrakant 11:06 PM
Josh, we are apologies for that, we will keep eye on
alert’s.
Marshall,Josh 11:09 PM
Alright, there might be a language barrier between us,
but everyone knows when someone doesnt answer a
question and or avoiding it that it starts to look s
suspicious and raises eye brows. Make sure you get the
job done with in the time that is specified or im sure
someone in our higher echelon will make sure it gets
done.
Gunti,Rajesh 11:11 PM
Sure Josh and Tonny sorry for the mistake which happen
and we wont repet it again
Id.
4

According to Mason, Kassa was the team lead, and Mason believed that
Kassa set the tone for Marshall, effectively giving him “the green
light to act in the same way.” Mason Dep. 71:2-7, ECF No. 20.

10

Mason issued Kassa a second written warning after receiving
the emails.
number

of

Mason stated in the warning that Kassa made “a
very

rude

and

unprofessional

statements”

to

the

Happiest Minds personnel.

Def.’s Mot. for Summ. J. Ex. P, Team

Member

Counseling

(Feb.

further

stated:

interact

with

Form

“This

those

1
is

new

1,

2017),

obviously
team

not

members

ECF

the

and

No.

way

runs

14-18.

He

we

want

to

the

risk

of

breaking their confidence before they have an opportunity to
build it, as well as painting Synovus in a negative light.”

Id.

Mason noted that he expected Kassa to interact “with all team
members, whether they are actual Synovus employees, contractors,
vendors, or anyone else, in a professional, kind, and courteous
manner at all times.”

Id. at 2.

He further stated that if

Kassa “does not show the ability to work with others in an
acceptable

manner,

this

will

lead

potentially including termination.”
Kassa

appears

to

contend

to

further

actions,

Id.
that

there

was

nothing

inappropriate about his communication with the Happiest Minds
personnel.

Kassa

asserts

that

Mason

instructed

him

to

put

pressure on the Happiest Minds personnel, but his citations to
the record do not support this assertion.

Rather, the citations

establish that Kassa asked for confirmation that the “off shore
team” would handle all calls and alerts during the “Single Bank”
rebranding project.

Mason responded that the offshore team was

11

not handling all calls yet, that he preferred to have Tony “lead
all efforts” during the project, and that Mason “want[ed] things
run VERY tightly.”

Mason Dep. Ex. 5, Emails between W. Mason &

T. Kassa (Jan. 19, 2017), ECF No. 20-1 at 11.

Mason later

explained that he wanted Kassa “to help make sure that th[e] new
people

understood

what

the

60:20-61:1, ECF No. 20.

expectations

were.”

Mason

Dep.

Kassa says that he interpreted this

message as an instruction to “push” the Happiest Minds team, and
he acknowledged that he pushes people by “creat[ing] stress” to
see if they “are going to fold” and that he does this “to help
them.”

Kassa Dep. 208:16-23.

In any event, Mason and his supervisor Jason Rang had a
meeting with Kassa regarding the write-up, and Kassa asserts
that he told Mason and Rang “what [he] suffered from,” that he
was “trying to seek help for it,” and that he “didn’t get to
[his medicine] in time.”

Id. at 204:11-15.

Kassa also told

Mason and Rang that he did not “need to be on the phones.”
at 112:3-14.

Id.

Kassa prepared a written rebuttal to the write-up,

explaining why he said what he did during the chats, noting that
he did not understand what the standards were for interacting
with

his

colleagues

given

that

he

had

not

previously

been

punished for his communication style (“I am honest and do not
sugarcoat things”).
Written

Reprimand

Def.’s Mot. for Summ. J. Ex. S, Rebuttal to
2,

ECF

No.

14-21.

12

The

rebuttal

does

not

mention Kassa’s disorders, but it does state that Kassa felt
that

he

was

“singled

process”

and

that

out

and

everyone

standards as he was.

discriminated

else

should

be

against
held

to

in

this

the

same

Id.

After he received the second write-up, Kassa scheduled a
meeting with Charles Burks in the human resources department.
He met with Burks on March 10, 2017 and gave Burks a copy of the
2013 letters from Drs. Parekh and Pithadia.

Kassa also told

Burks that he was worried that something similar would happen in
the future if he was not taken off the phones or allowed to
speak only to technicians.
Kassa officially transferred to the ATM team on February
27,

2017.

His

job

duties

included

monitoring

the

network

operations center and fixing problems that Happiest Minds could
not fix, taking calls regarding ATM outages, and helping with
network engineering.

Kassa soon realized that the job regularly

required him to work with the three other ATM team members to
answer

telephone

outages.

Kassa

calls
Dep.

from

Synovus

314:6-12,

employees

315:6-13.

members of the ATM team were women.

reporting

The

three

ATM

other

See id. 312:17-313:13.

The

ATM team had a queue for answering the phones; if one team
member was away from her desk, then the call rolled to the next
team member in the queue.

So, if the three other team members

were away from their desks, Kassa had to take the call.

13

Id.

On

July

20,

2017,

Kassa

answered

a

call

from

a

female

Synovus teller regarding a customer’s problem with the ATM at
her branch.

They joked briefly at the beginning of the call,

then began discussing the issue.

Kassa prepared to give the

teller the incident number, he asked if she knew the phonetic or
military alphabet; when she did not respond, Kassa said, “I was
impressed, but . . .” and then gave her the incident number
using the regular alphabet and numbers.

Def.’s Mot. for Summ.

J. Ex. V, Audio Recording 1:19-1:37 (July 20, 2017).
said

she

already

had

the

incident

number

and

The teller

said

that

her

question for Kassa was about other information she needed to
fill out a dispute form for the customer.

Kassa yelled over to

his female coworker, Chris, for help answering the question.
Chris responded that the ATM team did not have access to the
information

and

that

information

from

the

the

teller

customer’s

would

have

receipt;

she

to

get

also

the

provided

additional information that is inaudible because the teller and
Kassa were also speaking.

Id. at 2:51-3:29.

Kassa now claims

that Chris was attacking him, but that is not evident from the
audible

portions

of

Chris’s

response

on

the

recording.

Apparently dissatisfied with Chris’s response, Kassa told the
teller, “Nothing personal, I hate working with women.”
3:28-3:32.

Id. at

She responded “oh, that’s, that’s . . .” and then

stopped talking.

Kassa said, “Nothing personal, you might be

14

totally different, I don’t know.”

Id. at 3:33-3:37.

Throughout

the call, Kassa’s voice is calm and even jovial.
The teller’s manager contacted Mason to complain about the
call between Kassa and the teller.
Mason

investigated

conversation.

by

listening

Mason Dep. 90:19-91:25.
to

a

recording

of

the

He did not speak with the teller or with Kassa;

he said he “could hear everything [he] needed to [hear] on the
call.”

Id. at 92:4-7.

Mason consulted with Dan Steele from the

human resources department, and they decided to terminate Kassa.
Mason

Dep.

counseling

99:22-100:16.
form

summarizing

Mason
the

prepared

phone

call

a
and

team

member

stating

that

“[t]his sort of behavior has been a pattern with [Kassa] over
the past 6 months, one that got him written up back in February,
and one that we have continually talked about in terms of what
not

to

do

when

interacting

with

customers

or

anyone

else.”

Def.’s Mot. for Summ. J. Ex. T, Team Member Counseling Form 2
(July 20, 2017), ECF No. 14-22.

Mason stated that Kassa was

expected to interact with all team members “in a professional,
kind, and courteous manner at all times. . . . Because these
expectations

were

not

met

consistently

over

the

past

year,

multiple written warnings have been given, in addition to ad hoc
coaching, leading to this final action of termination.”

Id.

Kassa testified that “the only job” that was impossible for
him to perform because of his disorders was a customer service

15

job; there are “tons of jobs” he could do.
431:12.

Kassa Dep. 430:17-

Kassa believes that if he had been permitted to talk

only with technicians and was not required to take telephone
calls from non-technicians, he would not have made the comments
that led to his termination.
Kassa

submitted

an

Id. at 257:6-14.

informal

intake

questionnaire

to

the

Equal Employment Opportunity Commission (“EEOC”) on September
12, 2017.

He later filed a verified charge of discrimination on

October 17, 2017, alleging disability discrimination.
DISCUSSION
Kassa

claims

that

he

is

disabled

and

that

Synovus

discriminated against him because of his disability by refusing
to provide reasonable accommodations and by terminating him for
the July 2017 phone call incident.

Kassa also asserts that

Synovus retaliated against him for complaining about disability
discrimination.
I.

The Court addresses each claim in turn.

Kassa’s Discrimination Claims
“To establish a prima facie case of discrimination under

the ADA, a plaintiff must show: (1) he is disabled; (2) he is a
qualified

individual;

discrimination
Indus.,

LLC,

disability

because
492

means

F.3d
“a

and

(3)

of

his

1247,

he

was

subjected

disability.”
1255-56

physical

or

(11th
mental

Holly
Cir.

to

unlawful

v.

Clairson

2007).

impairment

A
that

substantially limits one or more major life activities of” an

16

individual.

42 U.S.C. § 12102(1)(A).

Although Synovus argues

that Kassa is not disabled within the meaning of the ADA, the
Court assumes that he is because of his bipolar disorder and
intermittent explosive anger disorder, which are controlled with
medication.

See

29

C.F.R.

§ 1630.2(j)(1)(i)

(“The

term

‘substantially limits’ shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms
of

the

ADA.

demanding

‘Substantially

standard.”);

limits’

29 C.F.R.

§

is

not

meant

1630.2(j)(3)(iii)

to

be

a

(noting

that “it should easily be concluded that the following types of
impairments will, at a minimum, substantially limit the major
life

activities

indicated:

. . .

bipolar

disorder

[and

other

mental disorders] substantially limit brain function”).
The
individual

Court

also

within

the

assumes

that

meaning

of

Kassa
the

was

ADA.

a

qualified

A

qualified

individual “satisfies the requisite skill, experience, education
and other job-related requirements of the employment position
such individual holds or desires and, with or without reasonable
accommodation,
position.”

can

perform

the

essential

29 C.F.R. § 1630.2(m).

functions

of

such

Synovus argues that Kassa

was not qualified for his position because he admitted to Dr.
Parekh that he used cocaine sometime in December 2015.

Synovus

further contends that if Kassa had reported to work with cocaine
in his system, he would not have been qualified to do his job,

17

and he would have been fired for violating Synovus’s drug use
policies.

But Synovus did not point to any evidence that Kassa

reported to work with cocaine in his system or tested positive
for cocaine use, so the Court cannot find as a matter of law
that Kassa was unqualified based on his admission to Dr. Parekh.
Synovus also argues that Kassa was unqualified because he was
unable to work with others.

But the record viewed in the light

most favorable to Kassa suggests that Kassa was able to work
with others most of the time, so there is at least a genuine
fact dispute on whether Kassa was a qualified individual.
The

next

question

is

whether

against because of his disorders.

Kassa

was

discriminated

Kassa argues that Synovus

discriminated against him in two ways: (1) it failed to provide
a

reasonable

accommodation

for

his

disorders

and

includes

“not

(2)

it

terminated him because of his disorders.
A.

Failure to Accommodate

Discrimination

under

the

ADA

making

reasonable accommodations to the known . . . mental limitations
of an otherwise qualified individual” unless the individual’s
employer “can demonstrate that the accommodation would impose an
undue hardship on the operation of the business.”
§ 12112(b)(5)(A).
accommodation
accommodation.”

of

A

42 U.S.C.

plaintiff

is

“not

entitled

choice,

but

only

to

[his]
Stewart

v.

Happy

18

Herman's

a

to

the

reasonable

Cheshire

Bridge,

Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (quoting Lewis v.
Zilog,

Inc.,

908

F.

Supp.

931,

948

(N.D.

Ga.

1995)).

The

Eleventh Circuit has made it clear that the ADA does not require
an

employer

“to

transform

the

position

into

another

one

by

eliminating functions that are essential to the nature of the
job as it exists.”
1260

(11th

(noting

Cir.

that

an

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,

2001);

accord

employer

is

Holly,
not

492

F.3d

required

essential function of the plaintiff’s job).
between

the

accommodation

that

is

to

at

1262

n.16

eliminate

an

“The difference

required

and

the

transformation that is not is the difference between saddling a
camel and removing its hump.”
Here,
accommodate
eliminate

Kassa
his
the

argues

Lucas, 257 F.3d at 1260.

that

disorders
requirement

by

he

repeatedly

changing

that

he

telephone calls from non-technicians.5

his

answer

asked
ATM

Synovus

team

customer

job

to
to

service

Kassa did not point to

sufficient evidence to dispute that when he was reassigned to
5

Kassa also applied for several positions outside the ATM team, but he
did not argue or point to evidence that Synovus’s decision not to
select him for these positions amounts to a failure to accommodate.
Kassa further asserts that he told his supervisors that he may
occasionally need to take short breaks.
Kassa did not point to any
evidence that Mason or anyone else told him he was not allowed to take
breaks when he was frustrated.
There is evidence that Kassa had to
take calls when no one else on his team was available, Kassa Dep.
312:17-313:13, which was the same rule he had under Young’s
supervision.
Finally, Kassa asked for permission to work nights or
from home, but he did not present evidence to dispute that these
requests could not be granted because there was no night position
available after the reorganization and because the customer service
telephone calls could not be routed to an employee’s home.

19

the ATM team, an essential function of his job was answering
customer

service

reporting

ATM

telephone

outages.

calls

In

from

fact,

Kassa

Synovus

employees

testified

that

the

function of answering telephone calls regarding ATM outages was
“just about all [his job] was.”

Kassa Dep. 315:6-13.

Thus, the

Court finds the present record, even when viewed in the light
most favorable to Kassa, establishes as a matter of law that
answering customer service calls regarding ATM outages was an
essential function of Kassa’s job once he was reassigned to the
ATM team.

Synovus was not required to eliminate that essential

function of Kassa’s job, and his failure to accommodate claim
thus fails.
Kassa points out that the ADA regulations state “it may be
necessary for [an employer] to initiate an informal, interactive
process

with”

a

disabled

reasonable accommodations.

employee

to

determine

29 C.F.R. § 1630.2(o)(3).

potential
But the

Eleventh Circuit has concluded that the ADA does not provide a
cause

of

action

accommodations,

for

failure

particularly

where

to

investigate
the

plaintiff

possible
cannot

demonstrate that he was denied a reasonable accommodation that
would have enabled him to perform the essential functions of his
job.
1997).

Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.
So, to the extent Kassa seeks to assert an ADA claim

20

based on Synovus’s alleged failure to engage in an interactive
process to find a reasonable accommodation, that claim fails.
B.

Kassa’s Termination

Kassa also argues that he was terminated because of his
disorders since he was terminated for an “outburst” related to
his

disorders.

terminated

There

because

of

is
his

no

real

dispute

statements

on

that

the

July

Kassa

was

20,

2017

telephone call, including his statement to a female bank teller
that he hates working with women.

Though Kassa tries to dismiss

his

banter,

statements

as

jovial

joking

he

cannot

seriously

dispute that his supervisor reasonably believed that he was rude
and unprofessional to the female teller.
dispute

that

this

incident

happened

And, there is also no
after

Kassa

had

been

counseled about his communication style and after he was written
up

for

two

previous

incidents,

one

of

which

unprofessional and rude to other team members.6

involved

being

Even if Kassa’s

conduct was related to his disorders, the Court is not convinced
that the ADA requires an employer to maintain indefinitely an
employee who is rude and unprofessional to his coworkers and who
tells a female coworker that he hates working with women.

6

Kassa does not argue or point to any evidence to suggest that
Synovus’s use of a written write-up instead of a verbal warning for
the server outage issue in November 2016 was because of his disorders.
Therefore, to the extent Kassa attempted to assert a disability
discrimination claim based on Synovus’s failure to use progressive
discipline, that claim is abandoned.

21

The Eleventh Circuit has not issued a published opinion
holding that an employee’s misconduct related to a disability is
not a disability.

See Caporicci v. Chipotle Mexican Grill,

Inc., 729 F. App'x 812, 816 & n.4 (11th Cir. 2018) (per curiam)
(noting

that

[misconduct]

“[w]hether

a

constitutes

firing

based

disability-based

on

disability-related

discrimination

under

the ADA is an open question in this circuit” but declining to
reach

the

appeal).

issue

because

the

plaintiff

had

abandoned

it

on

But the Eleventh Circuit has suggested in unpublished

opinions that misconduct related to a disability is not itself a
disability, and the Court is persuaded that this is the correct
rule.

For example, in J.A.M. v. Nova Se. Univ., Inc., 646 F.

App’x 921 (11th Cir. 2016) (per curiam), a case under Title III
of

the

ADA,

the

Eleventh

Circuit

concluded

that

a

medical

student who was dismissed from medical school was not dismissed
because of his mental disability but because of “alcohol-related
behavioral

misconduct.”

Id.

at

926.

The

Eleventh

Circuit

stated that the medical school was “not required to excuse past
misconduct, even if that misconduct is linked to a student’s
mental

disability”

and

that

the

[did] not excuse his misconduct.”

student’s

“mental

disability

Id.; accord Ray v. Kroger

Co., 264 F. Supp. 2d 1221, 1228–29 (S.D. Ga. 2003), aff’d, 90 F.
App’x 384 (11th Cir. 2003) (concluding that there was no ADA
violation when a grocery store terminated a grocery clerk for

22

outbursts of vulgar language that were caused by his Tourette’s
Syndrome); see also Hamilton v. Sw. Bell Tel. Co., 136 F.3d
1047, 1052 (5th Cir. 1998) (finding “the ADA does not insulate
emotional or violent outbursts blamed on an impairment” and that
that an employee who was fired after he verbally abused and
struck a coworker was not fired because of his PTSD but because
of “his failure to recognize the acceptable limits of behavior
in a workplace environment”).

In summary, even if Kassa’s July

20, 2017 statements and his prior “outbursts” were related to
his disorders, his termination for those statements and similar
prior misconduct is not disability discrimination.
II.

Kassa’s Retaliation Claim
Kassa

asserts

that

Synovus

retaliated

complaining of disability discrimination.7
such

retaliation.

retaliation,

Kassa

42

U.S.C.

“must

§

show

against

(1)

for

The ADA prohibits

12203(a).

that:

him

[he]

To

establish

engaged

in

a

statutorily protected expression, (2) [he] suffered an adverse
employment action, and (3) there was a causal link between the
two.”
2016).

Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir.
“The

causation.”

third

element

requires

a

showing

of

but-for

Id.

7

The Court assumes for summary judgment purposes that Kassa met the
ADA’s exhaustion requirement for his retaliation claims because those
claims are related to the disability discrimination allegations
contained in his EEOC charge.

23

Kassa

appears

to

argue

that

he

engaged

in

protected

activity when he submitted his rebuttal statement shortly after
his

February

1,

2017

written

warning

and

when

he

February and March 2017 to be taken off the phones.
assumes

for

summary

constitute

protected

retaliated

against

judgment

purposes

activity.8

him

for

this

Kassa

that

in

The Court

these

actions

that

Synovus

asserts

protected

asked

activity

when

it

denied his requests to be taken off the phones in February and
March 2017 and when it terminated him in July 2017.
As discussed above, answering customer service telephone
calls was an essential function of Kassa’s job on the ATM team,
so

the

Court

finds

that

Synovus’s

refusal

to

grant

Kassa’s

request to eliminate this part of his job was not an adverse
employment action.

Kassa thus cannot base an ADA retaliation

claim on this decision.
Regarding

his

termination,

Kassa

did

not

point

to

any

evidence that his protected activity was the but-for cause of
his termination.

Rather, he acknowledges that his “outburst” in

July 2017 was the reason for his termination.
Kassa

had

pointed

to

some

evidence

8

to

And, even if

suggest

that

his

Requesting reasonable accommodations is certainly protected activity.
Frazier-White, 818 F.3d at 1258.
So is complaining about disability
discrimination, if the employee had a good faith, reasonable belief
that the employer was engaged in disability discrimination. Although
Kassa stated in his rebuttal that he felt he was singled out and
discriminated against, the rebuttal does not explicitly mention
Kassa’s disorders, so it is not clear that the rebuttal was protected
activity. The Court nonetheless assumes that it was.

24

termination was causally related to his protected activity four
months

prior,

he

did

not

point

to

any

evidence

to

rebut

Synovus’s legitimate nonretaliatory reason for his termination:
Kassa’s

supervisor

reasonably

believed

that

he

was

rude

and

unprofessional to the female teller after he had been counseled
about his communication style and after he was written up for
two previous incidents.

Therefore, Kassa’s retaliation claim

based on his termination fails.
CONCLUSION
For the reasons set forth above, the Court grants Synovus’s
summary judgment motion (ECF No. 14).
IT IS SO ORDERED, this 3rd day of January, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

25