Brown v. GEORGIA DEPARTMENT OF DRIVER SERVICES

Filing 31

ORDER denying 29 Motion to Strike ; granting 20 Motion for Summary Judgment; case stands dismissed. Ordered by U.S. District Judge HUGH LAWSON on 4/29/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

BRENDA LEE BROWN,
Plaintiff,
Civil Action No. 7:12-CV-93 (HL)

v.
GEORGIA
DEPARTMENT
DRIVER SERVICES,

OF

Defendant.

ORDER
Before the Court are Defendant’s Motion for Summary Judgment (Doc. 20)
and Plaintiff’s Motion to Strike Affidavits (Doc. 29). For the reasons stated below,
Defendant’s motion is granted, and Plaintiff’s motion is denied.
I.

Summary Judgment Standard
Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact arises
only when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must evaluate all of the evidence,

together with any logical inferences, in the light most favorable to the nonmoving
party. Id. at 254-55. The court may not, however, make credibility determinations
or weigh the evidence. Id. at 255; see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The

party

seeking

summary

judgment

“always

bears

the

initial

responsibility of informing the district court of the basis for its motion, and
identifying

those

portions

of

the

pleadings,

depositions,

answers

to

interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of a material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment must
be entered “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
Under Local Rule 56, the facts listed in the movant’s statement of material
facts will be deemed admitted as undisputed unless the non-movant denies each

2

specific fact and provides a supporting citation to the factual record. M.D. Ga.
L.R. 56. However, even if the non-movant fails to offer adequate objections under
Local Rule 56, a court may not accept at face value the movant’s depiction of the
facts. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004). A court must review the
record to determine for itself whether the motion for summary judgment is
supported by the evidence and that there is no genuine issue of material fact. Id.;
see also Reese v. Herbert, 527 F.3d 1253, 1268-69 (11th Cir. 2008).
II.

Factual Background
This case arises from the termination of Plaintiff Brenda Brown’s

(“Plaintiff”) employment with Defendant Georgia Department of Driver Services
(“DDS”). In her response to DDS’ Statement of Undisputed Material Facts,
Plaintiff argues that many of the material facts are in dispute, but she fails to
provide record citations that would actually place these facts into genuine
dispute. Plaintiff’s pro se status in this case does not free her from the obligation
to comply with the “procedural rules in ordinary civil litigation.” McNeil v. United
States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); see also
Giles v. Wal-Mart Distrib. Ctr., 359 F. App’x 91, 93 (11th Cir. 2009). Any fact in
DDS’ statement of material facts that has not been disputed by Plaintiff with a

3

relevant record citation is, therefore, deemed admitted unless the Court’s own
review of the record calls the fact into dispute.
On April 1, 2010, Plaintiff began working as a Driver Examiner I at the DDS
customer service center in Valdosta, Georgia, which on average served two
hundred customers per day. (Defendant’s Statement of Undisputed Material
Facts (“DSMF”), Doc. 20-2, ¶¶1, 3; Plaintiff’s Deposition, Doc. 20-10, pp. 57,
324). As the manager of the service center, Mary Mitchell (“Mitchell”) was
Plaintiff’s direct supervisor and oversaw the driver examiners in that office.
(DSMF, ¶¶2, 4-5). Mitchell reported to the district manager, Donna James
(“James”), until January 1, 2011, when James became the manager of the
Cordele customer service center. (Id. at ¶6). As the field coordinator, Donna
Garnto (“Garnto”) directly supervised the district managers and reported to the
division’s director, Alan Watson, who was responsible for making termination
decisions and approving requests for contingent leave. (Id. at ¶¶7-9).
The responsibilities for the Driver Examiner I position included setting up
and operating office and licensing equipment, conducting vision screening,
processing documents, and administering written and driving tests to applicants.
(Id. at ¶12). Every driver examiner was expected to perform all of these functions,
particularly at the Valdosta service center with its high customer volume. (Id. at

4

¶13). The Valdosta office only had six driver examiners on staff, including
Plaintiff. (Id. at ¶4).
Prior to interviewing for the driver examiner position, Plaintiff received a
telephone call from Jackie Upchurch (“Upchurch”) who worked in DDS’ human
resources department.1 (Plaintiff’s Deposition, pp. 63-64). When Upchurch said a
driver examiner’s position was open, Plaintiff expressed concern that her
menorrhagia condition, which involved heavy bleeding during her menstrual
period as well as having a longer than average period, would hinder her job
performance. (Id. at 67-70, 141-43). Upchurch reassured Plaintiff that she would
be replacing a retired employee whose job had been stationary and involved
remaining at a window to provide information to customers. Upchurch understood
Plaintiff would have similar duties. (Id. at 117-18).
During the interview process, Plaintiff also addressed her bleeding
condition. She listed herself as disabled on a DDS questionnaire form and
indicated she would need to stay seated during her menstrual period more than
most employees. (Id. at 70-71). Plaintiff reviewed the questionnaire with the two
DDS employees who interviewed her,2 but when she spoke with Mary Mitchell on

1

There is nothing in the record indicating Upchurch’s precise position with DDS,
including whether she actually had any personal knowledge about driver examiners’
responsibilities or had the authority to set such job requirements. There is also no
evidence Upchurch ever worked in the Valdosta service center.
2
Plaintiff does not have a copy of the questionnaire, and she cannot remember the
names of the interviewers. (Plaintiff’s Deposition, pp. 64-66, 212-13).
5

the day of the interview, she did not mention her medical condition or
accommodation request. (Id. at 209-13).
Although Plaintiff’s work at DDS initially involved only administering road
tests and sitting at the front desk providing information, circumstances soon
required her to learn and to perform other duties. (Id. at 119-20, 140-41). When
other driver examiners complained that Plaintiff was only sitting at the desk
without doing the other tasks, forcing them to assume an unequal share of the
workload, Donna James and Mitchell told her she would have to start performing
all of the functions of the Driver Examiner I position, including administering
vision screens and processing paperwork. (Id. at 119-20, 125-26, 152-54).
Plaintiff asked James and Mitchell if, while she was menstruating, her work
duties could be “lighten[ed] up” so that she could sit at a desk without having to
walk around, which worsened her bleeding. (Id. at 181-92).3 The supervisors
denied Plaintiff’s request because “everybody would have to … do the same
work.” (Id. at 184-85, 188-90). James also told Plaintiff she had to learn all the
duties in case one of the other driver examiners was unavailable. (Id. at 152-54).
Plaintiff’s bleeding condition harmed her work performance, and medical
procedures were unable to improve her health during her time at the DDS. The
3

Both Mitchell and James deny Plaintiff ever made such a request to them and declare
they could not have approved such a request since each driver examiner was needed to
perform all of the functions of that position. (Affidavit of Donna James, Doc. 20-6, ¶¶7-9;
Affidavit of Mary Mitchell, Doc. 20-7, ¶9). For summary judgment purposes, the Court
must accept as true Plaintiff’s testimony about the alleged conversations.
6

loss of blood during her menstrual period caused fatigue; mental confusion; and
loss of memory, appetite, and sleep. (Id. at pp. 192-93, 207). The blood flow was
sometimes so large it would soak Plaintiff’s pants and work seat, causing her
intense embarrassment. (Id. at 141-42, 195-96). Plaintiff missed seven to eight
work days in August 2010 when she underwent an ablation, but the attempt to
stanch the blood loss was unsuccessful. (Id. at 217, 225-27, 239-41). She was
also absent from work in November when she had to be hospitalized for heart
palpitations caused by heavy bleeding, but she continued getting paid during
both absences. (Id. at 241-44). Plaintiff eventually learned she required a total
hysterectomy that would involve an estimated six weeks absence from work for
the operation and recovery, and she applied for medical leave. (Id. at 244-46).
Plaintiff’s requested leave for a hysterectomy that would take place on
February 8, 2011 with an expected return on March 24 was subject to DDS’
policies. (DMSF, ¶¶62-63). Under DDS’ written policies, if an employee needed
leave for a medical procedure, she must request and receive advance approval
from her supervisor, if available, or the next person in the chain of command. (Id.
at ¶17). If an emergency prevented the employee from getting advance approval,
she was to alert her supervisor as soon as possible. (Id. at ¶18). An employee
was required to return to work the workday immediately following the expiration

7

of leave, and any request for an extension had to be made in writing prior to the
expiration of leave and give a return to work date. (Id. at ¶¶16, 19-23).
Even if an employee had exhausted her paid leave, she could apply for
leave without pay, but such requests could only be approved in writing by the
division director. (Id. at ¶26). Upon receiving leave without pay, an employee was
required to submit a certified statement from her medical provider that she could
return to work at the end of the approved leave and perform the essential
functions of her job. (Id. at ¶27). An employee’s failure to abide by the DDS
policies could result in the termination of her employment. (Id. at ¶¶16, 24, 28).
DDS informed Plaintiff of some policies during her orientation and cautioned her
she was responsible for acquainting herself with all of the policies through its
intranet. (Id. at ¶14).
Although Plaintiff received approval for her medical leave through March
23, she lost her job with the DDS when she failed to return to work after the leave
expired. (Id. at ¶¶69-79). She had exhausted her paid medical leave on February
28, but was allowed to remain on leave and began receiving short-term disability
benefits. (Id. at ¶¶69-70). The hysterectomy was successful, but complications
lengthened Plaintiff’s recovery beyond March 23. (Plaintiff’s Deposition, pp. 29699). She asked for an extension of leave and submitted a work excuse form from
Specialty Clinics Diabetes Management stating she should not return to work

8

before March 30, when she had a follow-up medical appointment. (DSMF, ¶¶7172). Plaintiff never provided DDS with a certified statement from a medical
provider regarding when she could return to her full duties, and Alan Watson as
the division director never approved a leave extension. (Id. at ¶¶67, 72-78). After
Plaintiff failed to return to work on March 24, DDS terminated her employment.
(Id. at ¶¶67, 74, 77-80). Plaintiff continued receiving disability benefits until
August 6, 2011, and she applied for Social Security disability benefits in
December 2011. (Plaintiff’s Deposition, pp. 292-96, 383-84).
Plaintiff sought legal recourse for the loss of her job. After first completing
an intake questionnaire on January 3, 2012, she filed a charge of discrimination
against the DDS with the Equal Employment Opportunity Commission (“EEOC”)
on April 10, 2012, alleging that the department had discriminated against her on
the basis of her age and disability. (Id. at pp. 326-27; DSMF, ¶81). After the
EEOC issued a right to sue letter to Plaintiff, she filed suit in this Court and
brought claims for violations of the Americans with Disabilities Act (“ADA”), 42.
U.S.C. § 12101 et seq., and the Rehabilitation Act (“Rehab Act”), 29 U.S.C. §
791 et seq.
III.

Legal Analysis
Defendant’s motion for summary judgment on Plaintiff’s ADA and Rehab

Act claims is granted. To the extent Plaintiff has ever sought to articulate

9

additional claims, her efforts were futile since she never moved to amend her
complaint.4 See St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.
2002) (“The scope of the review [for whether a complaint sufficiently alleges a
claim] must be limited to the four corners of the complaint.”). The complaint only
contains “a short and plain statement of the claim[s]” for violations of the ADA
and the Rehab Act. Fed. R. Civ. Pro. 8(a)(2).
A.

ADA Claim

Summary judgment on the ADA claim is granted because Plaintiff failed to
file a discrimination charge with the EEOC within the time required by law. “In
order to litigate a claim for discrimination under Title VII, the ADA, or the ADEA a
plaintiff must first exhaust [her] administrative remedies, beginning with the filing
of a charge of discrimination with the EEOC.” Rizo v. Ala. Dep’t of Human
Resources, 228 F. App’x 832, 835 (11th Cir. 2007). In Georgia, which is a nondeferral state, a plaintiff must file her charge with the EEOC within 180 days after
the employment discrimination occurred. See Pijnenburg v. West Ga. Health
Sys., Inc., 255 F.3d 1304, 1305 (11th Cir. 2001); 29 C.F.R. § 1626.7. Failure to
4

DDS points out that, at various points during discovery, Plaintiff also referred to claims
for violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Genetic Information Nondiscrimination Act, and the Family
Medical Leave Act. (Defendant’s Brief in Support of its Motion for Summary Judgment,
Doc. 20-1, p. 2 n. 2). Since Plaintiff never amended her complaint to include any of
these claims, despite the Court’s clear deadline for doing so, (Scheduling/Discovery
Order, Doc. 11, p. 6), analyzing the legal merits of these purported claims is
unnecessary. In any event, the Court is convinced the factual record would not support
such claims.
10

timely file a charge with the EEOC will result in the dismissal of a later lawsuit.
See Rizo, 228 F. App’x at 836. Generally, a plaintiff must allege in her complaint
that a charge was timely filed with the EEOC, and when a defendant denies that
the filing requirement was met, the burden shifts to the plaintiff to prove that it
was. See id.
Plaintiff did not exhaust her administrative remedies prior to filing this
lawsuit because she did not file a charge with the EEOC within 180 days of the
alleged employment discrimination. The latest date on which Plaintiff might have
suffered discrimination was March 24, 2011, the day DDS fired her. Therefore,
the deadline for filing an EEOC charge was September 20, 2011. Since Plaintiff
did not even fill out an intake questionnaire from the EEOC until January 3, 2012,
and did not complete the discrimination charge until April 10, 2012, (Doc. 20-23),
her ADA claim in this lawsuit must be dismissed as time-barred.5 Any ADA claim
Plaintiff brought to this Court was doomed ab initio, regardless of whether
Plaintiff alleged DDS fired her because of a disability or failed to provide
reasonable accommodation for the disability.

5

Although Plaintiff listed “01/03/2011” on one EEOC form, which would have been
before the deadline for filing an EEOC charge passed, she admitted during her
deposition that she wrote the date in error, and the collateral evidence proves she
actually filled out the form in 2012. (Plaintiff’s Deposition, pp. 326-27).
11

B.

Rehab Act Claims

Even though Plaintiff filed her Rehab Act claims with this Court in a timely
manner,6 the motion for summary judgment on them is granted nonetheless.
Plaintiff has not clarified which sections of the Rehab Act provide the legal basis
for her claims, but the most likely one is 29 U.S.C. § 794, which forbids state
government departments receiving federal money from denying benefits to
individuals on the basis of their disability.7 See 29 U.S.C. § 794(b)(1)(B); Morales
v. Ga. Dep’t of Human Res., 446 F. App’x 179, 180 (11th Cir. 2011). Since the
“standard for determining liability under the Rehabilitation Act is the same as that
under the [ADA] … cases involving the ADA are precedent for those involving the
Rehabilitation Act.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)
(citations omitted).
To establish a prima facie case for disability discrimination under the
Rehab Act, Plaintiff must show that (1) she suffered from a disability; (2) she was
otherwise qualified for her position; and (3) DDS subjected her to unlawful
discrimination as the result of the disability. Id. DDS targets its motion for
summary judgment on the third element. Under a liberal construction of the
6

Unlike with her ADA claim, Plaintiff, as a non-federal employee, was not required to
first exhaust her administrative remedies, including the filing of a timely EEOC charge,
before bringing her Rehab Act claims to this Court. See Swain v. Valdosta City School
Dist., Civ. No. 7:12-cv-146, 2013 WL 486273, at *1 (M.D.Ga. Feb. 6, 2013); Ali v. City of
Clearwater, 807 F. Supp. 701, 703 (M.D.Fla. 1992).
7
As a recipient of federal funding, DDS concedes it is required to comply with the
Rehab Act.
12

complaint in light of the record, Plaintiff alleges DDS violated the Rehab Act by
failing to make reasonable accommodation for her disability and by terminating
her employment because of her disability, but neither argument can withstand
summary judgment scrutiny.
1.

Failure to accommodate Plaintiff’s disability

Plaintiff’s failure to accommodate claim is dismissed because she has
failed to provide evidence creating a genuine issue of material fact and DDS is
entitled to judgment as a matter of law. An employee suffers unlawful
discrimination

when

her

employer

refuses

to

provide

“reasonable

accommodation” for her disability. Lucas v. W. W. Grainger, Inc., 257 F.3d 1249,
1255 (11th Cir. 2001) (citations omitted). “The plaintiff bears the burden of
identifying an accommodation” and showing it is reasonable. Id. at 1255-56.
An employer is not obligated to provide every accommodation an
employee requests, only reasonable ones. Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (citation omitted). Under the
ADA, which by extension applies to the Rehab Act, reasonable accommodations
could include “job restructuring, part-time or modified work schedules,
reassignments to a vacant position, acquisition or modification of equipment or
devices, … and other similar accommodations for individuals with disabilities.” 42
U.S.C. § 12111(9)(B); see also 29 C.F.R. § 1630.2(o). An accommodation is by

13

definition unreasonable if it poses an undue hardship on the employer or
prevents the employee from doing the essential functions of her job. Lucas, 257
F.3d at 1255.
“[E]ssential functions ‘are the fundamental job duties of a position that an
individual with a disability is actually required to perform.’” Holly v. Clairson
Industries, L.L.C., 492 F.3d 1247, 1257 (11th Cir. 2007) (quoting Earl, 207 F.3d
at 1365). How an employer defines the essential functions of a position must be
given “substantial weight” by a court, which may consider testimony from an
employee’s supervisor. Id. at 1257-58. Whether a job function is essential may
also depend on “the amount of time spent on the job performing the function, the
consequences of not requiring the incumbent to perform the function, … the work
experience of past incumbents in the job, and the current work experience of
incumbents in similar jobs.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220,
1230 (11th Cir. 2005) (citing 29 C.F.R. § 1630.2(n)(3)) (internal numbering
omitted). There are at least three bases on which a job function might be deemed
essential: “(1) the reason the position exists is to perform the function; (2) there
are a limited number of employees available among whom the performance of
the job function can be distributed; and (3) the function is highly specialized so
that the incumbent in the position was hired for his or her expertise or ability to

14

perform the particular function.” Id. (internal quotation and citation omitted); see
also 29 C.F.R. § 1630.2(n)(2).
Mindful that Plaintiff is proceeding in this action pro se, the Court is
persuaded that Plaintiff made two requests to DDS for accommodation of her
disability. First, Plaintiff asked her supervisors if her job duties could be limited to
working at the front desk without having to do more active tasks such as
administering driving tests and vision screens. Plaintiff initially sought to
permanently restrict her job to desk work, but when this was not allowed, she
requested this accommodation for when she was experiencing her menstruation,
even if the accommodation were only for “one or two days.” Second, Plaintiff
asked DDS to accommodate her disability by extending her leave for recovery
after the hysterectomy. DDS’ denial of both requests did not violate the Rehab
Act because the accommodations were not reasonable.
Limiting Plaintiff’s job to only working at the front desk was not a
reasonable accommodation since it would have prevented her from performing
the essential functions of that position. Plaintiff does not dispute that as a driver
examiner her job responsibilities included, inter alia, conducting vision
screenings, administering written and road tests to license applicants, processing
documents, and assembling and operating equipment. To prove how essential
these functions were, DDS offers affidavits from Plaintiff’s direct supervisor, Mary

15

Mitchell; April Harrison, who was a personnel technician in DDS’ human
resources office; and Alan Watson, who was the director of the DDS division in
which Plaintiff worked. (Docs. 20-7; 20-5; 20-9).8 Citing Mitchell’s testimony, DDS
points out that she relied on all six driver examiners being able to perform all of
their duties in order to meet the high customer volume in Valdosta. Letting
Plaintiff work from a desk would have unduly burdened the other driver
examiners.
Plaintiff fails to convince the Court that administering road tests and vision
screens, processing documents, and operating office equipment were not
essential duties of her job. The only evidence even arguably indicating these
were not essential responsibilities comes through Plaintiff’s deposition testimony
about statements made by a DDS employee named Jackie Upchurch.9 Plaintiff
does not know Upchurch’s position with DDS apart from thinking she worked in
the human resources office and contacted job applicants about the status of their
applications. There is no evidence Upchurch ever worked in the Valdosta office.
When Plaintiff mentioned the limitations created by her medical condition,
8

The written job description provided by DDS has no bearing on what the essential
functions of Plaintiff’s job might have been since there is no evidence the description
was created before she was interviewed or the job was announced. See D’Angelo, 422
F.3d at 1230.
9
DDS has not objected to Plaintiff’s testimony concerning Upchurch’s statements. Even
though the statements are prima facie hearsay, they may still be considered at the
summary judgment stage since Plaintiff could reduce them to an admissible form at trial
under Federal Rule of Evidence 801(d)(2)(D). See Jones v. UPS Ground Freight, 683
F.3d 1283, 1293-94 (11th Cir. 2012).
16

Upchurch told her she would be replacing a retired employee who had worked
stationary at a window, dispensing tickets and information to customers, and
Plaintiff would be working under the same circumstances. At best, Upchurch’s
statements only indicate how a previous driver examiner had worked and her
understanding of Plaintiff’s duties. There is no evidence Upchurch had any basis
for knowing what Plaintiff would be required to do at the Valdosta service center.
The overwhelming weight of the evidence shows that the essential
functions of the Driver Examiner I position included active duties that Plaintiff
could not perform while remaining seated. Plaintiff agrees she was expected to,
and actually did, perform such tasks. DDS employees with knowledge of
Plaintiff’s work in Valdosta have provided evidence that the position of driver
examiner involved essential responsibilities that could not be performed from a
desk chair.

In contrast to the vague evidence concerning the work

responsibilities of the retired employee whose position Plaintiff was hired to fill is
the fact that the driver examiners with whom she worked were clearly performing
active duties, and they complained when Plaintiff did not do all the tasks. If the
essential functions of the Driver Examiner I position could be done by sitting at a
desk, the Court wonders who would be administering the vision screens and
driving tests for Georgia driver license applicants. See 29 C.F.R. § 1630.2(n)(2)

17

(directing courts to ask whether “the reason the position exists is to perform the
function”). Not for nothing was Plaintiff hired to be a driver examiner.
How long Plaintiff might have wished to remain seated at a desk does not
alter the Court’s analysis. Whether Plaintiff wanted to be stationary for her entire
menstrual period or for only one or two days is beside the point seeing she could
not perform her essential functions while seated. Moreover, being stationary for
only two days would have been negligibly useful to Plaintiff given her testimony
that the time of heaviest bleeding would last for at least nine days and that active
duties could trigger sudden blood flows during that time. (Plaintiff’s Deposition,
pp. 69-73, 141-43, 189-209). Because there is no genuine issue of material fact
that administering road tests and vision screens, processing documents, and
operating equipment were essential functions of the Driver Examiner I position,
DDS did not unreasonably fail to accommodate Plaintiff’s disability by refusing to
permit her to remain at a desk. The length of the accommodation does not alter
the inevitable conclusion that it was not reasonable.
DDS is also not liable for denying Plaintiff’s request to remain on an
extended sick leave, for this was not a reasonable accommodation of her
disability. “While a leave of absence may be a reasonable accommodation, the
ADA [and by extension the Rehab Act] does not require an employer to provide
leave for an indefinite period of time because an employee is uncertain about the

18

duration of his condition.” Santandreu v. Miami Dade County, 513 F. App’x 902,
905 (11th Cir. 2013) (citing Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226
(11th Cir. 1997)). “The ADA covers people who can perform the essential
functions of their jobs presently or in the immediate future.” Wood v. Green, 323
F.3d 1309, 1314 (11th Cir. 2003). While an employer might violate the ADA and
the Rehab Act by immediately terminating an employee who requests a medical
leave of absence, it is not required to continue approving repeated requests for
indefinite leave. See id.
Accommodating Plaintiff’s request to remain on leave even though she did
not provide a certified medical opinion for when she could return to work would
not have been reasonable. DDS had allowed Plaintiff to take two paid medical
leaves before she took leave for her hysterectomy and recovery. Plaintiff
exhausted the remainder of her personal and sick days while recovering from the
hysterectomy, but DDS nonetheless allowed her to remain on leave and receive
short-term disability benefits until her anticipated date of return on March 24.
However, Plaintiff did not comply with DDS policies. When Plaintiff learned she
could not return to work on March 24, she failed to provide a new medical
certification for when she could return to DDS, only sending a work-excuse form
stating she would be out until at least her doctor’s appointment on March 30. The
fact that Plaintiff continued receiving short-term disability benefits until August 6,

19

then subsequently applied for Social Security disability benefits, suggests she
required indefinite leave well beyond March 30.
Allowing Plaintiff to remain on leave when the date of her return to work at
full capacity was uncertain would have been unreasonable. DDS did not violate
the Rehab Act by refusing to permit Plaintiff to remain on indefinite medical
leave. Summary judgment on the failure to accommodate claim is granted.
2.

Termination of Plaintiff’s employment

Plaintiff is not any more successful in alleging that DDS violated the Rehab
Act by terminating her employment. Under the McDonnell Douglas burdenshifting analysis applied in the absence of direct evidence of unlawful
discrimination,10 once a plaintiff has presented a prima facie case under the
Rehab Act, the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for terminating the plaintiff. Wascura v. City of South
Miami, 257 F.3d 1238, 1241-42 (11th Cir. 2001) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the employer
does so, the burden then swings back to the plaintiff to provide sufficient factual
evidence to create a genuine issue of fact for whether the employer’s proffered

10

Plaintiff has not argued there is, and the Court has not found, direct evidence of
discrimination in the record. See Wascura v. City of South Miami, 257 F.3d 1238, 1242
n. 2 (11th Cir. 2001) (“Only the most blatant remarks, whose intent could be nothing
other than to discriminate will constitute direct evidence of discrimination.”) (internal
citation, quotation, and punctuation omitted).
20

reason was pretextual. Id. at 1243. A court must dismiss the claim if the plaintiff
cannot carry her burden. Id.
DDS has met its burden because it offers evidence Plaintiff was fired for
not complying with DDS employment policies. During orientation DDS briefed
Plaintiff on its key policies and informed her she was responsible for acquainting
herself with all the policies. Failure to follow the procedures laid out in the policies
could result in the termination of employment. The record is undisputed that
Plaintiff did not receive written approval for extending her leave beyond March
23, give DDS a certified statement from a medical provider stating a return to
work date, or return to work on March 24 when her permitted leave expired. DDS
now claims that it fired Plaintiff for these policy violations, which would certainly
have been a legitimate rationale for the adverse employment action.
The burden now shifts to Plaintiff to show DDS’ stated reason for firing her
was merely pretextual, but she has not done so. Since DDS’ proffered reason for
firing her is one that might reasonably motivate an employer, Plaintiff must
address the reason head on and rebut it. Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1088 (11th Cir. 2004). She may do so “by either proving that intentional
discrimination motivated the employer or producing sufficient evidence to allow a
rational trier of fact to disbelieve the legitimate reason proffered by the employer,
which permits, but does not compel, the trier of fact to find illegal discrimination.”

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Id. Plaintiff’s brief opposing summary judgment does not appear to articulate any
argument that DDS’ proffered reason for firing her was pretextual. Assuming
Plaintiff had made this argument, it is insufficient to create a genuine issue of
material fact. There is no evidence DDS refrained from firing non-disabled
employees who were otherwise similarly situated to Plaintiff. Nor is there
evidence Plaintiff’s supervisors, particularly Alan Watson who made the decision
to fire her, possessed animus towards Plaintiff or any other employee on account
of a disability.
Given Plaintiff’s failure to argue that DDS’ proffered explanation for her
firing was pretextual, and this Court’s own inability to uncover sufficient evidence
to create a genuine factual dispute, Defendant’s motion for summary judgment is
granted for the claim it violated the Rehab Act by terminating Plaintiff’s
employment. Since none of Plaintiff’s claims can survive summary judgment, her
case is dismissed.
IV.

Plaintiff’s Motion to Strike Affidavits
Turning now to Plaintiff’s motion to strike various affidavits submitted by

DDS in support of the motion for summary judgment, the Court denies it as
meritless. The rules of civil procedure and evidence allow a party to base its
motion for summary judgment on affidavits so long as the witnesses providing
the sworn statements have personal knowledge of the information contained

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therein and the evidence would be admissible at trial. Fed. R. Civ. Pro. 56; Fed.
R. Evid. 602. The affidavits from DDS employees in question meet the
requirements of Rule 56(c)(4) and are in a form that is standard for civil litigation.
Plaintiff’s chief objection to the affidavits seems to be that “they improperly seek
to introduce evidence to the record to contradict the testimony of the Plaintiff.”
(Motion to Strike Affidavits, Doc. 29, ¶1). There is nothing improper about the
affidavits, and the fact that they might contradict Plaintiff’s testimony is certainly
not grounds for striking them.
V.

Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment

(Doc. 20) is granted, Plaintiff’s Motion to Strike Affidavits (Doc. 29) is denied, and
this case is dismissed.

SO ORDERED, this the 29th day of April, 2014.

s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE

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