Dee v. Board of Regents of the University System of Georgia

Filing 43

ORDER granting 31 Motion for Summary Judgment. The Clerk is instructed to enter judgment against Plaintiff and in favor of Defendant. The Clerk shall close this case. Signed by Judge J. Randal Hall on 03/30/2016. (thb)

IN THE UNITED

FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

KEITH DEE,

*
*

Plaintiff,

*

v,

*

*

BOARD OF REGENTS

OF THE

CV

114-176

*

UNIVERSITY SYSTEM OF GEORGIA,

*

d/b/a Georgia Regents
University,

*

Defendant.

ORDER

Currently

before

summary judgment.
Defendant's motion

the

(Doc.

Court

31.)

is

Defendant's

motion

for

For the reasons explained below,

i s GRANTED.

I.

Factual Background

This case arises from Plaintiff Keith Dee's employment with

the Medical College of Georgia
completing medical
an

anesthesiology

("PI.

Dep.")

school

in Ohio,

residency

at 12.)

("MCG" or "Defendant").1
Plaintiff was

program at

MCG.

After

accepted into

(Doc.

31,

Ex.

While Plaintiff was employed at MCG,

5
Dr.

1 The Medical College of Georgia's name has changed multiple times, and
at the time this litigation began,
it was known as Georgia Regents
University.
But at the time of the underlying events, it was still known as
the Medical College of Georgia.
Because the parties' filings refer to
Defendant as MCG,

the Court will do the same.

Alvin Head was the chair of the anesthesiology department,

and

Dr.

the

James

Mayfield,

department.

In
After

Jr.

was

the

assistant

chair

of

(Id. at 15.)

June

2008,

Plaintiff

over-the-counter

injured

medicines

his

back.

failed

to

(Id.

relieve

at

his

20.)
pain,

Plaintiff wrote a prescription to his girlfriend for Lortab,
Plaintiff

took

the

medication

Lortab did not work,
21.)

In

("DEA")

2009,

agents

When

Percocet.

(Id.

at

from the

Drug

Enforcement

Agency

visited MCG regarding an investigation into Plaintiff's

the

writing,

and

Plaintiff

prescriptions

to

Dr.

taking the medications

he

Plaintiff

answered

drug test would be
28-29.)

that

suggested

recommended

had,

tested

Plaintiff
that

he

Institute ("Ridgeview")

girlfriend.

had prescribed.
Dr.

appropriate,

Plaintiff

that

his

and

that

(Id.

(Id.

Head

(Id.

receive
Dr.

a

informed

for

at

at

26-28.)
had been

28.)
him

Percocet

31.)

had

When
that

and

a

(Id.
was

Dr.

Head also

substance-abuse

evaluation

Steven

in Atlanta.

at

he

Plaintiff consented.

positive

leave.

see

agreed to the evaluation.

acknowledged

Head asked Plaintiff if he

he

placed on administrative

and

21.)

Plaintiff was routinely taking three pain

Following the meeting,

at

at

(Id. at 25.)

February

prescription

written

(Id.

Plaintiff began taking

By January 2009,

pills per day.

himself.

and

Lynn

at

the

(Id^ at 31-32.)

(Id. at 32.)

Ridgeview

Plaintiff

In March 2009,

Lynn.

(Id.

wrote

Dr.

Plaintiff visited Ridgeview and met with Dr.

at 48-49.)
Head

and

After Plaintiff's evaluation,
informed

him

that

Plaintiff enter a treatment program,

to ten weeks.2
was

admitted

While

away

recommended

into

from

treatment

work

and

("FMLA")

on

in

that

which typically lasts

(Doc. 32, Ex. 1. ("Lynn Dep.") at 38.)

Medical Leave Act

Dr.

he

Dr. Lynn

March

23,

treatment,

2009.

Plaintiff

(Id.

Plaintiff

six

at

used

41.)

Family

leave.

Lynn initially placed Plaintiff in a six-week program,

but moved him into a twelve-week program a week after he

began

treatment.

after

starting

(Id.

at

treatment,

45-46,

58.)

Plaintiff

Two

called

Dr.

or

three

weeks

Mayfield

and

informed

him that things seemed to be progressing well and that he looked

forward to returning to MCG,

and Dr.

Mayfield responded that he

looked forward to having Plaintiff back.

During the course of
with Dr.

to

it

is

employers,

Dr.

Head,

though

Dr.

he

was

not

(Id. at
Lynn

sure

49-50.)

informed

treatment had been extended,
2

(Id.

at

Dr.

4 9.)

And,

Dr.

how

often

it

Dr.

Lynn

sent

out

During one of his calls
Head

that

Plaintiff's

but the specifics and date of this

Although his letter says six to ten weeks,

Dr.

Lynn's testimony

clarified that the program actually lasts six to twelve weeks.
43-44.)

Lynn spoke

normal procedure for Ridgeview to send updates

Plaintiff's updates.
with

Plaintiff's treatment,

Head two or three times.

testified,

(Id. at 76.)

(Lynn Dep. at

conversation
Dep.")

are

not

on

the

record.

2009,

8, 2009 and that he

2009.3

was

7

("Head

were unable

to

department

(PI.

Ridgeview

at

immediately

Dep.,

the

who

was

house at the time,

(Id.

he

at

Ex.

MCG

Because
sent

(Id.

checking

11,

resources

9.)

it.

may

claims

75.)

work on

the

at

his

he

May 11,

should contact

office

as

Plaintiff
letter,

and

have

that

he

seen

the

did not

taking

letter

see the

resided

as

at

did

not

Instead,

73-75.)

mail

soon

he

signed for the letter on May 5.

Plaintiff

treatment,

work by May

human

time

receive

girlfriend,

Although

the

return to

The letter further provided that, if

return to

or

FMLA leave would exhaust on May

expected to

(PI. Dep., Ex. 9.)

possible.

8.

Ex.

MCG sent a letter to Plaintiff's home in

Augusta informing him that his

his

31,

at 52-53.)

On April 27,

he

(Doc.

his

care

of

his

(Id. at 75.)

while

still

in

letter before May

MCG sent a second letter on May 11 informing

Plaintiff that he had not provided the requested information and
requested that he provide the information no later than May 26.

(PI. Dep.,

Ex.

this letter.

8.)
(Id.

Plaintiff maintains that he
at 75.)

For most of May 2009,

Eugene

Betts

department.

never received

was

the

(Doc.

31,

while Dr.

acting

Ex.

8

Head was on vacation,

head

("Betts

of

the

Dep.")

Dr.

anesthesiology

at

19.)

While

3 Plaintiff had previously used a few weeks of his FMLA leave earlier
in the year while he recovered from an illness.
(PI. Dep. at 22.)

acting as interim department head,
Dr.

Lynn,

Dep.

at

that

17.)

Plaintiff call

Dr.

him.

Plaintiff called Dr.

Betts requested, through
(PI.

reported

back

to

work

or

at 28.)

80-81;

and learned

MCG

about

resign.

any

(PI.

possible

Dep.

at

82-

Plaintiff agreed to resign and signed a

resignation letter that,

upon Dr.

Betts's request,

he backdated

to May 8 to reflect the day that his FMLA leave expired.
Dep.

Betts

employment because he had

informed

return and offered him the option to

83; Betts Dep.

at

Betts on May 20

that MCG had decided to terminate his
not

Dep.

(Betts

at 17.)

II.

In

August

2009,

questionnaire.
received

a

letter

adequately

14.)

(PI.

filed

In

May

Procedural Background

Plaintiff

Dep.,

from the

a

charge

2010,

Ex.
EEOC

of

submitted

13.)

an

In

informing

return,

him that

discrimination.

Plaintiff

filed

EEOC

a

(PI.

formal

intake

Plaintiff
he

had

Dep.,

charge

not

Ex.

of

discrimination with the EEOC and received a

right-to-sue

on April 7, 2014.

Plaintiff initiated

this action on

September 2,
cause

("ADA")

of

Dep., Exs. 15, 16.)

July 2, 2014,

2014.

action

for

(PI.

(Doc. 1.)
under

failing to

the

and MCG removed to

letter

this Court on

Plaintiff's complaint alleges a
Americans

accommodate his

with

Disabilities

Act

disability and a state-

law

breach-of-contract

claim.

MCG

now

moves

for

summary

if

"there

judgment.

Ill.

Summary
genuine

dispute

entitled
56(a).
the

judgment

to

under

the

party,

in

the

appropriate

any

as

a

material
matter

in

587

only
fact

of

and

law."

(1986),

substantive

U.S.

242,

light

Elec.

favor."

1437

477

the

Matsushita

[its]

governing

Inc.,

facts

574,

1428,

to

judgment

Liberty Lobby,

U.S.

is

Fed.

no

movant

the

is

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

suit

view

as

Legal Standard

most

Indus.

248

law.

(1986).

favorable

Co.

Anderson

v.

The

Court must

the

to

Zenith

v.

non-moving

Radio

Corp.,

475

and must draw "all justifiable inferences

U.S.

(11th Cir.

v.

Four

1991)

Parcels

(en banc)

of Real

Prop.,

941

F.2d

(internal punctuation and

citations omitted).

The

Court,

by

motion.

How

moving

to

party

reference
Celotex

carry

Corp.

this

proof at trial.
1115

(11th Cir.

to

has

the

initial

materials
v.

burden

Catrett,

depends

Fitzpatrick v.
1993) .

on

burden

file,
477

on

the

U.S.

who

of

basis

317,

bears

non-movant

has

the

(1986).

burden

2 F.3d
the

the

for

323

the

City of Atlanta,

When the

showing

of

1112,

burden of

proof at trial,

the movant may carry the initial burden in one

of

by

two

ways

—

negating

an

essential

element

of

the

non-

movant's case or by showing that there is no evidence to prove a
fact

necessary to

Clark,

Inc.,

Adickes
Corp.

v.

v.

929

the

non-movant's

case.

604,

(11th Cir.

F.2d

S.H.

Kress

Catrett,

&

477

Co.,

U.S.

evaluate the non-movant's
consider

whether

showing

that

that

is

City

it

of

curiam).
meet

the

the

there

398

317

entitled to

120

U.S.

no

has

its

248,

254

and

the

it must

(11th

can

first

burden

of material
of

&

Celotex

Court

initial

a matter

Coats

(explaining

(1970)

opposition,

issues

judgment as

1991)

Before

met

genuine

F.3d

144

(1986)).

response in

movant

are

Columbus,

606-08

See Clark v.

fact

law.

Cir.

of

and

Jones

1997)

v.

(per

A mere conclusory statement that the non-movant cannot
burden

at

trial

is

insufficient.

Clark,

929

F.2d

at

608.

If —
the

and only if — the movant

non-movant

"demonstrating]

that

precludes

bears the

its

may
that

avoid
there

summary

is

summary

to

initial burden.

the

judgment."

method

a

material

evidence

sufficient

fact,
to

initial burden,

judgment

Id.

by

the

which

the

withstand

When

the

issue

the

movant

directed

"must

F.3d at 1116.

fact

non-movant

carried

respond

verdict

trial on the material fact sought to be negated."
2

of

by

its

evidence affirmatively

non-movant
a

only

non-movant must tailor

If the movant presents

negating

its

indeed a material

burden of proof at trial,

response

carries

with

motion

at

Fitzpatrick,

If the movant shows an absence of evidence on a

material

fact,

the

non-movant

must

either

show

that

the

record

contains evidence that was "overlooked or ignored" by the movant
or

"come

withstand

forward
a

with

directed

additional

verdict

motion

alleged evidentiary deficiency."

cannot

carry

repeating
See

burden

conclusory

Morris

Rather,

its

v.

the

Ross,

F.2d

must

sufficient

trial

Id.

at

on

the

based

1117.

allegations

non-movant

at

relying

by

663

evidence

contained

1032,

the

(11th

with

the

non-movant

pleadings

in

1033-34

respond

The

on

to

or

by

complaint.
Cir.

affidavits

1981).

or

as

otherwise provided by Federal Rule of Civil Procedure 56.

In

notice
the

this

of

action,

the motion

summary

33.)

Wainwright,

satisfied.

rules,

the

772 F.2d 822,

time

of

the

Court

summary judgment
the

in opposition,

Therefore,

The

Clerk

for

judgment

other materials

(Doc.

the

for

to

file

requirements

(11th Cir.

filing

1985)

materials

Plaintiff

informed him of
affidavits

and the consequences

notice

825

right

and

gave

of

of default.

Griffith

(per curiam),

in

or

opposition

expired, and the motion is now ripe for consideration.

v.
are

has

IV.

MCG

moves

for

Discussion

summary

judgment

on

multiple

grounds.

The

Court addresses each of the arguments below.
1.

Failure to Exhaust Administrative Remedies

As noted above,
questionnaire

with

Plaintiff completed and submitted an intake
the

EEOC,

which

was

not

verified,

and

he

subsequently learned that the questionnaire did not constitute a

valid charge.

The

informing

of

called

him

the

same day that

the

EEOC.

Plaintiff received the

questionnaire's

(PI.

Dep.

at

deficiencies,

109.)

Then,

as

letter

Plaintiff

noted

above,

Plaintiff filed a charge in May 2010.
When

an

employee

wishes

to

bring

Americans

with

Disabilities Act

("ADA"),

with

EEOC

within

from

the

employment

act.

(providing

that

clams);

Supp.

2d

writing
§

see

and

42
42

also

1223,

U.S.C.

U.S.C.

Chesnut

1229

days

Ethan

that

is,

sworn

under

file

of

a

the

charge

unlawful

U.S.C.

42

the

§ 12117

procedures

apply

to

Inc.,

971

F.

Charges must be made

in

Allen

2013).

must

date

§ 2000e-5;

(N.D. Ga.

verified —

the

§ 2000e-5's
v.

he

claim

Retail,

under

oath.

29

ADA

C.F.R.

1601.9.

Under

name,

EEOC

address,

regulations,

is

known;

a

charge

should

and telephone number of the

the name, address,
it

180

a

(3)

include:

(1)

the

charging party;

(2)

and telephone number of the charged party,
a

clear,

concise

statement

of

the

if

facts

constituting
employees

unlawful

employed

disclosing
C.F.R.

the

any

by

the

state-law

§ 1601.12.

act;

(4)

charged

the

approximate

party;

proceedings

and

based

(5)

on

To be minimally sufficient,

number

a

the

of

statement

acts.

however,

29

a charge

need only contain " *a written statement sufficiently precise to

identify the
practices

parties,

complained

F.3d 1314,

1318

Moreover,

a

or

original

or

2001)

and

same

subject

§ 1601.12;

matter

Edelman

as

v.

amend

the

Grinnell

Corp.,

C.F.R.

his

action

or
270

§ 1601.12).

charge

"to

cure

including failure to verify the

amplify

C.F.R.

relate back to the original

v.

(quoting 29

may

omissions,

29

generally

Wilkerson

party

clarify

charge.

describe

of.'"

charging

to

to

(11th Cir.

technical defects
charge,

and

allegations"

§ 1601.12(b).

filing as

the

Lynchburg

535

the

will

they address

charge.

College,

in

Amendments

long as

original

made

the

29
106,

U.S.

C.F.R.
115-17

(2002).

Although

not

typically

treated

as

such,

intake

questionnaires may be considered charges in certain situations.
Wilkerson,

270

F.3d

questionnaire that
of

a

court

charge
in

determining
which

was

at

(finding

that

an

intake

was verified and met the basic requirements
sufficient

Wilkerson

whether

requires

1318-1320

to

adopted

a

filing

a determination

be

a

considered

a

manifest-intent

should

be

treated

of whether
10

a

charge) .
approach

as

a

reasonable

The
for

charge,
person

would find that the plaintiff "manifested her intent to activate

the machinery" of the statute by filing a questionnaire.
1320.

To aid in making that determination,

Id. at

the Wilkerson court

provided a non-exhaustive list of considerations,

including the

plaintiff's

questionnaire

interaction

with

the

EEOC,

indicated, and how the EEOC responded.

In this case,

not

and

2010

the

May

verified,
filing

Accordingly,

whether

administrative

remedies

cured
does

his

August

not

2009

because

the

Id. at 1320.

it is undisputed that Plaintiff's August 2009

questionnaire was
that

what

his

show his

intent to

presents

an

while his May 2010
was

outside

Plaintiff
turns

on

filing.
intake

the

180-day

timely

whether

MCG

window.

exhausted

his

May

essentially

questionnaire

filing was,

did

2010

argues

not

his
filing

that

it

sufficiently

initiate an ADA claim and that his May 2010

entirely

new

claim

instead

of

an

amendment.

The

Court disagrees.

The questionnaire Plaintiff completed in August 2009 provides

the

names,

MCG,

the

addresses,
number

of

and phone
MCG

numbers

employees,

of

and

both

the

Plaintiff

following

and

short

statement:

My physician in treatment discussed my condition with the
chair of my department, Dr. Al Head that I will need 12
weeks

agreed

of

treatment

with

the

for

chemical

evaluation

would be held for me until

vacation out

Eugene

of

Bett[]s

the

and

I

and

that

Dr.

my

finished treatment.

country Dr.

Dr.

dependency.

stated

Bett[]s
11

Head was

told my

Head

position
While

on

replaced by Dr.

physician

that

I

needed to

under

resign by 5/18

contract

until

or

I will be

June

30,

terminated.

2009

and

I was

policies

and

procedures state that if out of work for medical condition

all leave will be exhausted for pay then employee will be
placed on administrative leave [without] pay until he
returns.
FMLA was never discussed or certified although
that

is

their

reason

for

termination.

I

never

received

due process as the policy of the program states before
dismissal.
I was not compensated from 4/1/09-6/30/09 as
other

residents

in

the

same

treatment

center

from

same

institution were.
Therefore I believe I was unfairly
forced to resign under duress for my medical condition and
that my contract was not honored as policy states from
MCG.

Letter

sent

to

me

also

stated

that

I

did

dept of my intentions before termination.
as my physician was in constant contact
while

(PI.

I

was

Dep.,

statement
would
within

13.)

to

Notably,

facts,

of the

180

the

file

or

a

300

days

should check Box

to

EEOC

to

file
look

Plaintiff

a

1,

into

checked

the

of

1.

the

parties

§ 1601.12,

and

shows

Court

is

you

Box

Because

this

and

the

270

the

you

in part:

authorize
above."

acts,
to

F.3d

constitute a charge - had it been verified.

at
is

so

about

questionnaire

questionnaire

12

I

do

charge,

a

states,

intent

indicates that Plaintiff thought he was

knew

described

describes

Wilkerson,
the

I

"[i]f you

you must

file
1

Plaintiff's

that

you

to

discrimination,

Plaintiff's

that

below

notes

day

want

(Id. )

and

machinery,

satisfied

the

discrimination

box

pages

discrimination,

from

below."

identifies

administrative

of

If

charge

two

questionnaire

charge

discrimination ....

want

inform

in treatment.

Ex.

like

not

This is untrue
with Dr. Head

29

"I

the

(Id. )

clearly

C.F.R.

activate

1319-20,
sufficient

the

the
to

The evidence also

filing a charge when he

filed

the

receiving

questionnaire.

the

letter

filed a charge,

(PI.

Dep.

informing

at

him

109.)

that

he

Further,

had

not

after

formally

Plaintiff met with an EEOC employee in November

2009 about his claim and informed that person that he wanted to

file a charge.

(Id.

at 111.)

And the EEOC employee informed

Plaintiff that the EEOC would look into the

allegations.

(Id.

at 111.)

However,

because

questionnaire,

Plaintiff

Plaintiff's

claim

did

may

not

survive

2010 filing cures the verification defect.
the May 2010

filing will

grew out of the

verify

only

As

if

the

29

May

discussed above,

relate back and cure the defect

same subject matter.

the

C.F.R.

if it

§ 1601.12.

If

the May 2010 filing raised entirely new allegations based on new
facts,

it

filing.
the

will

not

be

See Chesnut,

allegations

allegations

in

considered

971

the

F.

an

Supp.

May

2010

filing

raised in the questionnaire,

Plaintiff's

specifically

mention

statement

the

ADA

or

to

2d at 1233.

be used to amend the questionnaire.
While

amendment

do

exact

May

actions

accommodate

2010

filing

alleged in the

him

while

he

to

the

cannot

The Court disagrees.
in

the

questionnaire

reasonable

alleges

an

underwent

may

accommodations,

addiction

not

it

Importantly,

ADA claim based

questionnaire —

13

relate

therefore,

alleges facts that arguably support an ADA claim.
Plaintiff's

original

MCG claims that

not

and,

the

on

the

that MCG did not
treatment.

(PI.

Dep.,

Ex.

15.)

Because

and amplified his

relates

back

August

under

29

Plaintiff's
2009

May

filing,

C.F.R.

2010

the

§ 1601.12.

filing

Court

clarified

finds

Accordingly,

that

it

summary

judgment is not appropriate on this issue.
2.

ADA Failure to Accommodate

Plaintiff alleges that MCG violated the ADA when it failed
to

accommodate

judgment

on

identified

perform

his

this
an

the

disability,

claim.

Because

accommodation

essential

and

now

Plaintiff

that

functions

MCG

would

of

his

moves

never

have

for

requested

allowed

job,

summary

the

him

Court

or
to

finds

summary judgment on this issue appropriate.

Under the ADA,

an employer may not "discriminate against a

qualified individual on the basis of disability in regard to job
application procedures,
employees,

employee compensation,

conditions,

and

§ 12112(a);

Lucas

(11th

Cir.

the hiring,

2001) .

privileges
v.

W.W.

To

advancement,

job training,

of

and other terms,

employment."

Grainger,

establish

or discharge of

a

Inc.,

prima

257

42
F.3d

facie

U.S.C.

1249,

case

1255

under

the

ADA, a plaintiff must demonstrate that: "(1) he is disabled;

(2)

he was a qualified individual at the relevant time, meaning he

could perform the
with

or

without

discriminated

essential
reasonable

against

because

functions of the
accommodations;

of his

14

job in question
and

disability."

(3)

he

was

Lucas,

257

F.3d

at

1255

(citation

omitted)

(internal

quotation

marks

omitted).
One

form

employer

of

discrimination

fails

disability.

to

reasonably

Lucas,

257

qualify as reasonable,
it

enables

the

job."

the

omitted).

It

accommodation

F.3d

257

is

and

the

ADA

accommodate

at

1255.

"An

Rabb v.

(11th Cir.

both

to

2014)

to

perform

F.3d

the
to

at

the

1255

essential

(internal

plaintiff's

demonstrate

Sch.

reasonable.").

Bd.

burden

that

it

of Orange Cty.,

(per curiam)

identify
In

an

an

Plaintiff

was

disabled.

addresses

the

essential

case,

and

MCG

does

Additionally,
functions

allow

257

of

not

neither

to

F.3d at
850

the burden

that

it

dispute

side

Plaintiff's

an

him

F. App'x 849,

show

of

marks

identify

Lucas,

590

only if

quotation

will

can

functions

to

an

employee's

plaintiff bears

accommodation

this

purposes of this motion,

("The

when

accommodation

perform the essential functions of the job.
1255-56;

arises

and thus be required by the ADA,

employee

Lucas,

under

is
that

directly

job.

For

the Court assumes attending work was an

essential function of Plaintiff's job.

Further,

a

plaintiff

will

not

succeed

on

a

failure-to-

accommodate claim unless he requested an accommodation.

v.

Bellingrath Gardens

Cir. 1999)

& Home,

Inc.,

167

F.3d 1361,

1363

Gaston

(11th

("[T]he duty to provide a reasonable accommodation is

not triggered unless a specific demand for an accommodation has
15

been made . . . .").
however,

is

not

LLC,

see also Hunt v.
(11th

case,

and

Cir.

that

of

form that

clear

in

Feb.
a

this

492 F.3d 1247,

Aimco Props.,

when

the

exact

entirely

Clairson Indus.,

*8

The

18,

defendant

plaintiff's

circuit.

F.3d

(noting,
knows

wish

to

request must

1261 n.14

LP,

2016)

a

of

be

in
a

See

take,

Holly

(11th Cir.

v.

2007);

, 2016 WL 659197,
a

Fair

Housing

plaintiff's

accommodated,

Act

disability

the

request

requirement may be met).
In

this

requirement

case,

that

established that
evidence

shows

Ridgeview

he

he

that

while

undisputed

even

an

extension

Moreover,

was

he

a

liberal

request,

request

for

undergoing

spoke

Yet,

to

application

Dr.

Plaintiff

an

of

the

has

not

accommodation.

ability to

call

treatment.

Mayfield

a

out

And

few

The
from

it

weeks

is

after

even after being placed in the twelve-

Plaintiff never called or wrote to MCG to request

of

his

although

impression

that

treatment,

there

requested

Dr.

Notably,

a

a

Plaintiff had the

entering treatment.
week program,

make

made

he

that

under

medical

Plaintiff

Dr.
is

Lynn

leave

Lynn
no

to

or

claims

was

other

that

he

keeping

indication

request

any

that

an

MCG
he

accommodation.

was

under

updated

ever

the

on

his

instructed

accommodation

from

or

MCG.

after Plaintiff's FMLA leave had expired and Dr. Betts

informed Plaintiff that his employment would be terminated if he

did not resign, Plaintiff still did not request an extension of
16

his leave or any other accommodation.

Instead,

he consented to

Dr.

Betts's request for his resignation.

Accordingly,

although

MCG

was

there

evidence

aware

of

Plaintiff's

disability,

is

no

that it was aware of his wish to be accommodated.

More

importantly,

the

record

reflects

that

Plaintiff

has

never identified an accommodation that would have permitted him
to perform the essential functions of the job.
brief,

Plaintiff

notes

that

extended

In his response

leave

to

complete

treatment may have been a reasonable accommodation.

5.)

Plaintiff

evidence

that

then

such

argues

an

that

MCG

failed

accommodation would not

to perform the essential functions of his job.
Although extended leave — as opposed to

may be a reasonable accommodation,
943, 950
to

(11th Cir.

establish

reasonableness

56.

been

the

of

the

treatment,

he

to

extend

his

would

have

been

he

permit

did

return to his position,

any

Plaintiff

(Doc. 36 at 5.)
indefinite leave —

607 F. App'x

it is Plaintiff's burden

an

accommodation

Lucas,

leave
able

36 at

produce

257

F.3d

and

at

failed to point to any evidence that,

until
to

he

perform

the

1255-

had he

completed
the

his

essential

The only evidence on the issue that the

Court has located is Dr.

although

of

accommodation.

functions of his job.

that,

to

Spears v. Creel,

(per curiam),

existence

Plaintiff has

permitted

2015)

(Doc.

his

Lynn's

not

testimony.

officially

Dr. Lynn testified

evaluate

Plaintiff would not have
17

Plaintiff
been able

for
to

return

Dep.

to

at

anesthesiology

97.)

Indeed,

anesthesiologist

ever,

for

98.)

he

that

the

end

of

be

permitted

after

completing

even

if

has
it

his

treatment.

Lynn testified that,

not

Accordingly,

establishes

Dr.

will

six months

accommodation,

at

pointed
have

return

had

to

to

him

work,

(Id.

an
if

at

97-

requested

this

evidence

that

any

allowed

essential functions of his job.4

on average,

treatment.

Plaintiff

not

would

to

(Lynn

to

perform

the

Moreover, because Plaintiff has

not pointed to any evidence supporting the reasonableness of the
accommodation,

MCG

was

not

obligated

to

prove

its

unreasonableness.

Plaintiff

also

cites

29

C.F.R.

§ 1630.2(o)(3)

and

that,

because MCG was aware of Plaintiff's disability,

have

known

that

§ 1630.2 (o) (3)

he

provides

needed

that

an

an

need to engage in an "informal,

accommodation.

employer

may,

this

circuit

action

for

clear

in

.

.

.

that

"the
to

."

C.F.R.

some

cases,

interactive process" in order to

^failure

the

accommodations

4

is

i t should
2 9

determine the appropriate reasonable accommodation.
in

argues

Willis v.

But the law

ADA provides

no

investigate'

Conopco,

Inc.,

108

cause

of

possible
F.3d 282,

MCG also argues that any other request for leave by Plaintiff would

be for indefinite leave and unreasonable.

The Court declines to address this

issue at length because the evidence does not suggest that Plaintiff
requested any extended leave.
But to the extent that Plaintiff argues that
he was

entitled to

leave is not a
(11th Cir.

indefinite

leave,

his

reasonable accommodation.

2003).
18

argument
Wood v.

fails

Green,

because

indefinite

323 F.3d 1309,

1314

285 (11th Cir. 1997).
to

interact,

And, even assuming an employer has a duty

failure

to

engage

in

the. interactive

process

is

irrelevant when the employee has not shown a possible reasonable
accommodation.

reasonable

into

("[W]here

accommodation,

reasonable

quotation
to

Id.

marks

identify

to

(11th Cir.

2015);

0730-CB-M,

2006

(" [W] hatever

the

duty

to

the

the

Creel,

*5

investigation

607

employee

interact

may

no

or

to

F. App'x 943,

Ala.

be,

fails

has

process'

Supermarkets,
(S.D.

(internal

employer

^interactive

Bruno's

2456084,

of

demonstrate

unimportant."

"[w]here

an

Spears v.

Smith v.
WL

in

cannot

lack

accommodation,

engage

show undue hardship."

is

Indeed,

reasonable

duty

plaintiff

employer's

accommodation
omitted)).

a

affirmative

the

a

it

Inc.,

Aug.

No.

948
04-

22,

does

2006)

not

arise

unless plaintiff has proven that a reasonable accommodation was
possible.").

Plaintiff

notice

of

his

interactive

disability,

process

accommodation.
evidence

essentially

and

Because

argues

it

was

determine
Plaintiff

that

would

establish

the

accommodation,

MCG's

failure to

that,

because

required

the
has

not

investigate or

285.

19

a

on

the

reasonable

pointed
of

was

initiate

appropriate

existence

in an interactive process is unimportant.

to

MCG

to

any

reasonable

otherwise engage

Willis,

108 F.3d at

Because

Plaintiff

has

accommodation,

and

evidence

identifies

that

not

because

enabled him to perform the

shown

Plaintiff
an

that
has

he

requested

not

accommodation

an

produced

that

any

would

essential functions of his

have

job,

the

Court GRANTS summary judgment on this issue.
3.

MCG's Leave Policy
Plaintiff

maintained

a

asserts

policy

once

their

Plaintiff,

such

a

provides,

cites

evidence

which

FMLA

policy

Plaintiff

the

under

employment

position,

that

leave

it

indicates

terminated

expired.

And,

violates

the

an

enforcement

EEOC

that

ADA.

MCG

employees'

according

to

support

his

To

guideline

that

in part:

If an employee with a disability needs additional unpaid
leave as a reasonable accommodation,
the employer must
modify its "no-fault" leave policy to provide the employee
with

the

there

additional

is

another

leave,

effective

unless

it

can

accommodation

show

that

that:

would

(1)

enable

the person to perform the essential

functions

position,

leave would cause an

or

(2)

granting additional

of his/her

undue hardship.
Modifying workplace policies, including
leave policies, is a form of reasonable accommodation.
Enforcement

Guidance:

Reasonable

Hardship Under the Americans
31994335,

at

*15

(Oct.

Accommodation

and

with Disabilities Act,

17,

2002)

(footnote

Undue

2002

WL

omitted).

Plaintiff reads this guideline to mean that an employer must

always

increase

Accordingly,

under

a

disabled

Plaintiff's

employee's

interpretation,

20

leave

time.

the guideline

required MCG

to

because he was

The

The

disagrees

does

leave

F.3d

not

time.

must modify its
reasonable

require

Instead,

1163-64

established

that

reasonable

accommodation

only
he

prevent

an

leave

time

it

interpretation.

employer

to

provides

and

v.

Cir.

automatically

that

entitled

and

additional
in

undue

the

Kan.

an

State

2014).

triggered

is

mentioned

accommodation

Plaintiff's

Hwang

(10th

is

conditions

Plaintiff's

employer

leave policy when extending leave time

requirement

otherwise

with

accommodation.

1159,

extend

in treatment.

Court

guideline

extend

automatically

to

a

a

no-fault

Id.

guideline

hardship

—

—

is,

has
as

into

a

would

Moreover,
another

come

this

leave

policy

a

753

plaintiff

additional

leave.

Univ.,

That

when

is

the

effective

effect

only

after the plaintiff has established that modifying the leave
policy

is

enumerated

remedial

a

reasonable

conditions

measures

—

accommodation.
discuss

issues

an

Because

entitled

to

accommodation,

5

Plaintiff

additional

MCG

has

has

not

the

defense

and

arise

after

the

only

Id.

not

leave

"Indeed,

affirmative

that

plaintiff establishes liability."

Id.

established

time

violated

as

that

a

this

he

was

reasonable

guideline.5

The Court addresses the merits of this argument because it was able

to easily reach its conclusion on the issue.
But the Court questions whether
Plaintiff's complaint raises an ADA claim based on this alleged policy.
21

Accordingly,
alleged

to

the

no-fault

extent

policy

Plaintiff

violates

the

argues

ADA,

that
Court

the

MCG's
GRANTS

summary judgment in favor of MCG on this issue.
4.

Disparate Treatment Under the ADA

A

small

argues
fails

that
as

portion

of

MCG's

any claim for

a matter

of

motion

disparate

law.

for

summary

treatment

Plaintiff's

judgment

under

the ADA

response makes

clear

that his case is based solely on MCG's failure to accommodate

his

disability.

response
support

goes
a

(Doc.
on

to

36

at

18.)

explain

that

Nonetheless,
the

disparate-treatment

claim.

questions

whether

raised

complaint,

for

facts

Plaintiff

completeness'

sake,

Plaintiff's
of

Although

this

the

the
the

claim

Court

Court

in

will

case

his

briefly

address the alleged claim.

The McDonnell Douglas,

burden-shifting framework applies

to disparate-treatment claims under the ADA.
Corp. ,

Ga.

No.

l:10-cv-2816-JEC,

July 9,

treatment,

requires

2012) .

2012

WL

2726766,

EEOC v.
at

Eckerd

*10

In order to bring a claim for disparate

Plaintiff must establish a prima facie case,

that

he

show

qualified;

and

(3)

was

because of

his

disability.

(11th

(N.D.

Cir.

that

he

is:

(1)

subjected to unlawful
Earl v. Mervyns,

2000)

(per

(2)

discrimination
Inc.,
As

207

F.3d

1361,

1365

above,

a qualified individual is someone who can perform the
22

curiam).

disabled;

which

discussed

essential

functions

accommodation.

(internal

of

that

job

257

Lucas,

quotation

established

the

F.3d

marks

he

with
at

or

without

1255

(citation

omitted).

was

able

reasonable

Plaintiff

to

perform

the

omitted)

has

not

essential

functions of the job with or without reasonable accommodation

and

cannot

establish

treatment.

See

Accordingly,

to

a

Eckerd

the

Plaintiff's

Plaintiff
Plaintiff

facie
2012

case
WL

Plaintiff's

of

disparate

2726766,

complaint

at

*10.

raises

a

the Court GRANTS summary judgment.

Breach-of-Contract Claim

alleges

when

Corp.,

extent

disparate-treatment claim,
5.

prima

it

that

MCG

requested

breached

his

its

contract

resignation.

with

Plaintiff

relies on a provision found in MCG's policies and procedures
relating to chemical and substance abuse,

Although
Inc.
is

which provides:

the Medical College of Georgia and MCG Health,
committed to appropriate assistance for House

Officers6 with chemical dependence and/or substance abuse,
untreated
or
relapsing
dependence
is
judged
to
be
incompatible with safe clinical performance.
Termination
through due process may result if a House Officer fails to
comply with a rehabilitation program or meet goals as
outlined
by
the
department
Chairperson
or
Program
Director.

(PI.

Dep.,

prevented

Ex.

MCG

19.)

from

progressing well

in

Plaintiff

terminating

his

maintains

his

treatment.

that

employment

That

is,

A resident is a House Officer.
23

paragraph

because

Plaintiff

that MCG breached this agreement.

6

this

(PI. Dep., Ex. 19.)

he

was

argues

Under

Georgia

law,

question of

law

terms

contract

of

court

a

looks

parties'

Here,

his

for the

only

O.C.G.A.

clear

the

and

contract

764 S.E.2d 403,

putting

the

aside

the

407

fact

failure

to

termination of
MCG may not

a

contract

§ 13-2-1.

unambiguous,
itself

unambiguous

comply

with

employment.

terminate

an

a

It

(Ga.

that

the

to

reason.

returned

to

Accordingly,

work,

and

reviewing

v.

the

Stiles

the

resigned

paragraph

not,
is

program may

however,

from

above

in

result

provide

compliance

in

that

with

a

MCG maintains that it requested

Plaintiff's resignation because he had exhausted his
and not

"When the

The clear language provides

employee who

program for a different reason.

a

2014).

in

treatment

does

is

determine

Plaintiff

language

does not support Plaintiff's claim.
that

of

Unified Gov't of Athens-Clarke Cty.

Inc.,

position,

construction

court.'7

are

to

intent."

Apartments,

"[t]he

Plaintiff

does

not

FMLA leave

dispute

this

the Court GRANTS summary judgment on this

issue.

24

Conclusion

For the reasons discussed above,
summary judgment

to

ENTER JUDGMENT

(doc.

31)

against

The Clerk shall CLOSE this

Defendant MCG's motion for

is GRANTED.

Plaintiff

The Clerk is

and in

favor

of

instructed

Defendant.

case.

ORDER ENTERED at Augusta, Georgia this ^)CX^day of March,
2016.

HONORAft&E J.

KANDAL HALL

UNITED/STATES DISTRICT JUDGE
SRN

25

DISTRICT

OF GEORGIA