Laun v. Augusta University et al
Filing
38
ORDER granting 21 Motion for Summary Judgment. Defendant's motion is granted as to Plaintiff's procedural due process, disparate treatment, and breach of contract claims. Defendant's motion is denied as to Plaintiff's failure to accommodate claim. Signed by Chief Judge J. Randal Hall on 09/25/2019. (maa)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
BILLY B. LAUN II, D.D.S.,
Plaintiff,
CV 118-033
V
THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA
d/b/a/ AUGUSTA UNIVERSITY,
Defendant.
ORDER
Before
University
the
Court
System
of
is
Defendant
Georgia
Board
d/b/a
( Defendant") motion for summary judgment.
of
Regents
Augusta
of
the
University's^
(Doc. 21.)
The Clerk
of Court gave Plaintiff Billy B. Laun II, D.D.S. ('"Plaintiff")
^ Although Plaintiff brings this suit against Augusta University as a separate
defendant from the Board of Regents of the University System of Georgia ("BOR"),
Augusta university exists and operates solely as a unit of the BOR.
See Ga.
Const, art VIII, § 4, f 1(b); O.C.G.A. §§ 20-3-31, 20-3-32/ McCafferty v. Med.
Coll. of Ga., 249 Ga. 62, 65 (1982), overruled on other grounds by Self v. City
of Atlanta, 377 S.E.2d 674 (Ga. 1989) (holding that the Medical College of
Georgia, as a unit of the BOR, is not a legal entity capable of being sued).
Defendant addressed this issue in its motion for summary judgment (Mot. for
Summ. J., Doc. 21, at 1 n.l; Br. Supp. Mot. for Summ. J., Doc. 21-1, at 1 n.l),
but Plaintiff failed to respond (see generally Resp. to Mot. for Summ. J., Doc.
27). Plaintiff does, however, collectively refer to Augusta University and the
BOR singularly as "Defendant." (Resp. to Mot. for Summ. J., at 1 (Plaintiff
"raises claims arising from his expulsion from the Advanced Education Oral and
Maxillofacial Surgery Residency ("OMFS") program operated by Defendant Augusta
University . . . and
the
[BOR] . . . (collectively
referred
to
as
"Defendant").").)
Because Augusta University is not a proper party, the Court
DISMISSES Augusta University as a defendant under Federal Rule of Civil
Procedure 21.
The Court DIRECTS the Clerk to TERMINATE Augusta University as
a party and MODIFY the remaining Defendant's title to be "Board of Regents of
the University System of Georgia d/b/a Augusta University."
timely notice of Defendant's motion, the summary judgment rules,
the right to file affidavits or other materials in opposition, and
the consequences of default.
(Doc. 22.)
Therefore, the notice
requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th
Cir. 1985) (per curiam) have been satisfied.
Plaintiff filed a
response in opposition (Doc. 27), and Defendant filed a reply in
support (Doc. 33).
The time for filing materials in opposition
has expired, and the motion is ripe for consideration.
of
the
evidence
of
record,
relevant
law,
and
Upon review
the
Parties'
respective briefs. Defendant's motion for summary judgment (Doc.
21) is GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
Plaintiff's pending claims against Defendant are as follows:
(1) disability discrimination claims under Titles I and II of the
Americans with Disabilities Act, 42 U.S.C § 12101, et seq. (''ADA")
and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
et seq. and (2) a breach of contract claim.^
below
the
facts
directly
relevant
to
The Court provides
Plaintiff s
disability
discrimination and breach of contract claims.
2 Plaintiff also has a claim that Defendant violated Plaintiff's procedural due
process rights under 42 U.S.C. § 1983 and the Fourteenth Amendment. Plaintiff,
however, has abandoned this claim.
(Resp. to Mot. for Summ. J., at 1 n.l
(**[Plaintiff's] amended complaint also includes a procedural due process claim.
Based on information developed through discovery, [Plaintiff] has elected to
abandon this claim.").)
Therefore, the Court GRANTS Defendant's motion for
summary judgment as to Plaintiff's procedural due process claim.
Beginning on July 1, 2012, Plaintiff was a resident in the
Advanced
Education
Oral
and
Maxillofacial
Surgery
("OMFS")
Residency Program ("Residency Program") at the Dental College of
Georgia at Augusta University ("Dental College").
St. Mat. Facts,3 Doc. 28, SI 1.)
On June 2, 2016, Plaintiff was
terminated from the Residency Program.
As early as
(Pl.'s Resp. to
November of 2012,
(Id.)
Dr.
Henry
Ferguson,
D.M.D,
professor and faculty member in the OMFS Department, and Dr. Mark
Stevens, D.D.S., Chairman of the OMFS Department, began receiving
complaints about Plaintiff from faculty members and employees.
(Dr. Ferguson's Aff., Doc. 21-7, SISI 2, 19; Dr. Stevens's Aff.,
Doc.
21-6,
SISI 2,
communications
16.)
from
Dr.
Ferguson
individuals
authenticated
complaining
about
twenty-six
Plaintiff's
behavior spanning from November 1, 2012, to June 23, 2015.
(Dr.
Ferguson's Aff., SISl 20-21; Doc. 21-7, Exs. 4-25.)
The complaints
concerned
behavior"
Plaintiff's
"rude
and
insubordinate
"ability to safely care for and treat patients."
Aff., SISI 20-21.)
and
(Dr. Ferguson's
Dr. Ferguson also stated that "[i]n addition to
the complaints I was informed of, I also had several personal
encounters
with
[Plaintiff]
where
disobedient, or insubordinate manner."
[he]
acted
in
a
rude,
(Id. SI 22.)
3 In this section, the Court cites Plaintiff's Response to Defendant's Statement
of Material Facts only when Plaintiff does not dispute the facts alleged by
Defendant, unless otherwise noted.
The
clinical
complaints
also
judgment.
(See,
Salgueiro,
included
e.g.,
concerns
Oct.
Doc. 21-7, Ex. 11, at 39^
31,
about
2014
Plaintiff's
Email
from
Dr.
(^^He is not aware of his
limitations and lacks good clinical judgment.
He is disrespectful,
confrontational and unable to follow directions.
He argues about
every[] clinical decision and does not know when to stop.
th[ese] things make him unreliable and dangerous.
All
I do not feel
comfortable assuming the liability for the things he does in the
clinic and I am very uncomfortable with him caring for hospital
and major surgical cases.").)
Lastly,
proper
Stevens
Plaintiff
procedure
reported
when
to
appeared
leaving
Dr.
to
the
have
issues
Ferguson that
^'[o]n
the
Specifically,
clinic.
following
Dr.
September
10th[,]
[2014,] [Plaintiff] left the clinic for a case at the hospital on
another service without getting permission from the director of
training program or chairman.
This was a dereliction of duty."
(Oct. 14, 2014 Email from Dr. Stevens, Doc. 21-6, Ex. 27, at 55.)
It is unclear if the complaints and issues from 2012 through
the end of 2014 prompted Dr. Ferguson or others to verbally counsel
Plaintiff.
(Compare Dr. Ferguson's Aff., SI 24, with Pl.'s Decl.,
Doc.
SI 96.)
27-2,
Beginning
in
March
of
2015,
however.
Ferguson began reporting Plaintiff's alleged misconduct.
Dr.
On March
^ For convenience and clarity, when the Court cites to exhibits attached to
affidavits and declarations, the Court cites the PDF page numbers of the
document rather than the page numbers on the exhibits.
13, 2015, Dr. Ferguson found that similar to the September 14,
2014
incident.
Plaintiff
participated in
a
surgical case
with
another department "without clearance from either an OM[F]S Chief
Resident or attending faculty."
(Mar. 13, 2015 Code of Conduct
Violation Memo., Doc. 21-7, Ex. 31, at 70.)
Dr. Ferguson reported
the March 13, 2015 incident to Dr. Philip J. Hanes, D.D.S., M.S.,
Associate Dean for Advanced Education at the Dental College, as a
Code of Conduct violation.
(Id.; Dr. Hanes's Aff.,
Doc. 21-5,
SISI 1-2.)
On May 7, 2015, Plaintiff pled guilty to this charge as a
first offense.
Hr'g,
(Mar. 16, 2016 Recommendation from Code of Conduct
Doc. 21-4, Ex. 14, at 63.)
In
June of 2015, Plaintiff
changed his plea to not guilty and, thereafter, a Code of Conduct
Investigative Subcommittee was appointed to evaluate the evidence.
(Id.)
The Investigative Subcommittee found sufficient evidence
that Plaintiff was guilty and recommended that a Code of Conduct
hearing be convened.
(Id.)
A year after the incident, on March
14, 2016, a hearing was held.
(Id. at 64.)
Plaintiff failed to
attend the hearing, was found guilty as charged, and was placed on
Administrative
Program.
Probation
for
the
remainder
of
the
Residency
(Id.)
During the year between Plaintiff being charged with his first
Code
of
Conduct
violation
and
important events took place.
the
On
hearing
for
that
violation,
June 4, 2015, Plaintiff's co-
resident, Dr. Becky Paquin, complained to Dr. Stevens about an
interaction she had with Plaintiff where she found Plaintiff to be
aggressive.
(Dr. Paquin's Letter to Dr. Stevens, Doc. 21-6, Ex.
28, at 56-58.)
Dr. Paquin stated that Plaintiff repeatedly called
her a ^'bitch, and she quoted Plaintiff as stating, ^^If I find out
"
anyone is backstabbing me again, I am not afraid to go to jail."
(Id. at 56.)
In response. Dr. Stevens and Dr. Ferguson informed
Plaintiff that his behavior was ''highly unprofessional" and they
were placing him on administrative leave for two weeks as a result.
(June 5, 2015 Letter to PI., Doc. 21-7, Ex. 34, at 75-76.)
on
June 7, 2015,
Dr.
Ferguson filed a second
Then,
Code of Conduct
violation against Plaintiff, which prompted another subcommittee
to investigate the June 4, 2015 complaint.
(June 7, 2015 Code of
Conduct Violation Memo., Doc. 21-7, Ex. 35, at 77.)
On July 2, 2015, the subcommittee reported that although there
was "no reason to doubt Dr. Paquin's version of events, none of
her specific allegations of unprofessional conduct between the two
of them can be substantiated."
Doc.
21-4,
Ex.
"insufficient
at
grounds
unprofessional
subcommittee
6,
39.)
to
conduct."
noted
(July 2, 2015 Subcommittee Report,
Therefore,
further
(Id.
concerns
with
the
pursue
at
subcommittee
these
40.)
accusations
Despite
Plaintiff,
found
of
this,
the
specifically
the
number of individuals who expressed apprehensions with Plaintiff's
"recalcitran[t]
[personality],
unconventional
perspectives,
and
unwillingness to comply with routine and reasonable requests in a
non-confrontational manner."
noted
that
^^more
than
(Id.)
one
Furthermore, the subcommittee
respondent . . . suggested
that
[Plaintiff] has unconventional practice philosophies and pushes
the limits of what might be considered prudent, particularly with
sedation."
(Id.)
Lastly,
the
subcommittee
confidentially
reported "[t]he speculative reports that several individuals were
fearful that [Plaintiff] could experience a personal breakdown in
rational thought and proceed to violence (firearms)."
(Id. at
41.)
On July 26, 2015, a meeting was held between Plaintiff and
Dr. Carol Lefebvre, D.D.S., M.S., Dean of the Dental College; Dr.
Ferguson; Dr. Hanes; Debra Arnold, Director of Employee Relations
in the Human Resources Division at Augusta University; and James
Rush, J.D., Chief Integrity Officer for Augusta University and
other affiliated organizations.
(Pl.'s Resp. to St. Mat. Facts,
^ 53; Dr. Lefebvre's Aff., Doc. 21-4, SISI 1-2; Ms. Arnold's Aff.,
Doc. 21-8, SISI 2-3; Mr. Rush's Aff., Doc. 21-11, 511 2-3.)
meeting.
Plaintiff
administrative
evaluation."
of
2015,
leave
was
informed
until
he
he
would
completed
a
be
Plaintiff
underwent
evaluations
''placed
fitness
(Pl.'s Resp. to St. Mat. Facts, 5 53.)
through
for
After evaluation,
VCAP informed
Mr.
on
duty
"In August
Vanderbilt
University's Comprehensive Assessment Program ('VCAP')."
5 55.)
At the
(Id.
Rush — Plaintiff's
sole point of contact during this time — that Plaintiff was unfit
for duty and further treatment was recommended.
Over
the
next
few
months,
Plaintiff
completed
treatment at the Professional Renewal Center
(Pl.'s Resp. to St. Mat. Facts, SI 57.)
(Id. SI 56.)
follow-up
(^^PRC") in Kansas.
At the end of his time at
the PRC, the PRC provided two reports: a ''Fitness for Duty/Facility
Summary" (PRC Fitness for Duty Report, Doc. 27-2, Ex. 4, at 3135) and a "Treatment Report" (PRC Treatment Report, Doc. 27-2, Ex.
5, at 39-51) (collectively, "PRC Reports").
The PRC Reports are
discussed in further detail below relating to Plaintiff s failure
to accommodate claim.
In general, however, the PRC Reports found
that as long as Plaintiff complied with certain recommendations,
he was fit to return to duty.
(PRC Fitness for Duty Report, at 32
("With his aftercare plan fully in place, his full compliance with
all elements of that plan, and his continued commitment to skill
maintenance and development, we see no impediment to his return to
residency.").)
Prior to his return to the Residency Program, Dr. Lefebvre
sent Plaintiff a letter explaining her expectations of Plaintiff
upon his return and stating that if Plaintiff failed to meet those
expectations, he would be immediately terminated.
Letter
from
Dr.
Lefebvre,
Doc.
21-4,
Ex.
11,
(Nov. 11, 2015
at
54-55.)
On
December 14, 2015, Dr. Stevens and Mr. Rush met with Plaintiff to
discuss their expectations of Plaintiff upon his return to the
8
Residency Program. (Pl.'s Reap, to St. Mat. Facts, H 66.)
They
informed Plaintiff he was being placed on a six-week assessment
and probationary period.
(Id.)
Before returning to the Residency Program, Plaintiff filed an
EEO
complaint
Employment
Equity
discriminated
disability.
20;
Mr.
with
Glenn
at
against
Powell,
Augusta
for
Director
University,
being
of
the
Office
alleging
^^perceived
as"
he
having
of
was
a
(Dec. 1, 2015 EEO Compl., Doc. 21-10, Ex. 2, at 18-
Powell's
Aff.,
Doc.
21-10,
1-2.)
Mr.
Powell's
preliminary investigation found no evidence to support Plaintiff s
allegations
of
disability
Plaintiff believed
discrimination
because
the
reasons
he was treated negatively were unrelated to
Plaintiff being perceived as having a disability.
(Pl.'s Resp. to
St. Mat. Facts, SI 65; Mr. Powell's Preliminary Report, Doc. 2110, Ex. 4, at 34-35.)
Plaintiff then returned to the Residency Program.
Following
the conclusion of Plaintiff's assessment and probationary period.
Dr. Stevens provided Plaintiff with the faculty's evaluation of
Plaintiff,
which also included recommendations for improvement.
(Feb. 12, 2016 Faculty Evaluation, Doc. 21-6, Ex. 29, at 59-63.)
On February 19, 2016, Dr. Stevens provided Plaintiff with a second
memorandum concerning expectations for
Plaintiff's improvement,
which Plaintiff tore up in front of Dr. Stevens.
(Pl.'s Resp. to
St. Mat. Facts, SISI 67-72; see Picture of Shredded Memo., Doc. 21-
6, Ex. 30, at 65.)
Later, Plaintiff signed a copy of the February
19, 2016 memorandum with reservations.
(Feb. 19, 2016 Memo, from
Dr. Stevens, Doc. 21-6, Ex. 31, at 68.)
Another incident occurred on March 1, 2016.
Denise Webster,
Legal Services Coordinator in Augusta University's Legal Affairs
Office, reported to Chris Melcher, Executive Vice President for
Legal
Affairs
at
Augusta
University,
Plaintiff that occurred on March 1, 2016.
Doc. 21-4, Ex. 13, at 61-62.)
an
incident
involving
(Ms. Webster's Memo.,
In sum, Ms. Webster stated that
Plaintiff called the Legal Affairs Office to speak with an attorney
because "[Mr.] Rush was not being responsive enough to him."
at 61.)
(Id.
Ms. Webster informed Plaintiff that she was "instructed
to tell [Plaintiff] that the only person on campus that he was
allowed to speak with would be [Mr.] Rush."
(Id.)
Ms. Webster
reported that Plaintiff then became aggressive towards her and
threatened her with her job.
(Id. at 61-62.)
The interaction
made Ms. Webster "uncomfortable about [Plaintiff] being on this
campus" and fearful because she believed Plaintiff "unstable and
[able to] do harm." (Id. at 62.) Mr. Melcher reported the incident
to, among others. Dr. Lefebvre.
(Mar. 2, 2016 Email from Mr.
Melcher, Doc. 21-4, Ex. 13, at 59-62.)
On
March
3,
2016,
administrative leave.
Dr.
Lefebvre
placed
Plaintiff
on
(Pl.'s Resp. to St. Mat. Facts., SI 76.)
Ms. Arnold investigated the March 1, 2016 incident.
10
(Id. SI 77.)
Ms. Arnold found
that Plaintiff ^'violated [W]ork [R]ule #18[:]
Threatening, engaging in threatening behavior (physical/verbal),
or fighting in the
workplace towards a co-worker, supervisor,
patient, or any individual within the institution or enterprise."
(Apr. 11, 2016 Report by Ms. Arnold, Doc. 21-8, Ex. 5, at 44-45.)
On
April 20,
2016,
Dawn
Gantt,
Dr.
Lefebvre's
reported another incident involving Plaintiff.
Memo, from Ms. Gantt, Doc. 21-8, Ex. 6, at 47.)
assistant,
(Apr. 20, 2016
Plaintiff came to
Dr. Lefebvre's office to complain that he was not ^^getting cases
the way other Residents [were]."
(Id.)
Plaintiff became angry
and Dr. Lefebvre asked Plaintiff to leave or she would call public
safety.
(Id. at 47-48.)
After Ms. Gantt asked Plaintiff to leave
around five times, he finally left to speak with
Frazier.
On
warning
(Id. at 48.)
April
letter
violation
issues.
Dr. Kevin B.
of
22,
2016,
(""Final
Work
Rule
Dr.
Stevens
Warning")
#18
and
issued
based
on
Plaintiff's
Plaintiff
the
March
continued
a
final
1,
2016
behavioral
(Final Warning, Doc. 21-6, Ex. 37, at 81-83, 85.)
The
Final Warning specified that ""any further violations of [Augusta
University]
work
[i]mprovement
rules,
plan
will
OM[F]S
department
result
in
guidelines,
discharge
residency program and Augusta University.
from
the
or
your
OM[F]S
Should another event
occur, you will be immediately suspended, an investigation will be
11
conducted and the final outcome will determine your status."
(Id.
at 85.)
The final incident occurred on May 17, 2016, when Plaintiff
was supposed to be at the clinic.
^ 88.)
(Pl.'s Resp. to St. Mat. Facts,
Staff could not locate Plaintiff, so they paged him.
(Id.)
Instead of returning directly to the clinic after receiving the
page.
Plaintiff
altercation
went
ensued
to
with
Dr.
Ferguson's
Plaintiff raising
office
and
a
past issues
verbal
and
Ferguson asking Plaintiff to leave his office multiple times.
Dr.
(Id.
SI5 89-91; May 27, 2016 Report by Ms. Arnold & Mr. Rush, Doc. 218, Ex. 8, at 54-56.)
Plaintiff left Dr. Ferguson's office but
returned after clinic and began another verbal exchange.
(Pl.'s
Resp. to St. Mat. Facts, % 91.)
Ms. Arnold and Mr. Rush investigated the May 17, 2016 events.
(May 27, 2016 Report by Ms. Arnold & Mr. Rush, at 54-56.)
Ms.
Arnold and Mr. Rush reported that on May 17, 2016, Plaintiff
"^'violated the expectations set forth in his [F]inal [W]arning and
therefore the department [would] need to determine the action to
be taken."
(Id. at 56.)
Dr. Lefebvre, Dr. Hanes, Dr. Stevens, and Dr. Ferguson, with
input from Mr. Rush, Ms. Arnold, and Anthony Hightower, decided
termination was the proper action.
SI 95.)
(Pl.'s Resp. to St. Mat. Facts,
On June 2, 2016, Dr. Stevens presented Plaintiff with a
letter notifying him of his termination (^'Termination Notice").
12
(Id. f 96; Termination Notice, Doc. 21-8, Ex. 9, at 57-58.)
The
Termination Notice stated that Plaintiff was terminated, effective
immediately, for violating ''Work Rule #4; Rude or discourteous
behavior toward patients or other persons at Augusta University"
and
"Work
Rule
#13:
Insubordination
or
willful
disobedience."
(Termination Notice, at 57.)
After
termination.
Plaintiff s
counsel
sent
Defendant
a
letter stating that Defendant made a promise in the Code of Conduct
section of the Resident Handbook to "conduct an investigation and
allow the accused resident to participate in a formal hearing to
address allegations against him," yet Defendant failed to follow
those procedures.
(June 13, 2016 Letter from Pl.'s Counsel, Doc.
27-2, Ex. 6, at 55.)
Thereafter, Defendant provided Plaintiff
with an investigation and a hearing held on July 26, 2016.
Resp. to St. Mat. Facts, SISI 100, 105.)
(Pl.'s
The hearing subcommittee
determined that Plaintiff was guilty and recommended he receive
"Administrative
Probation
with
Restrictions."
(July
27,
2016
Recommendation from Code of Conduct Hr'g, Doc. 21-4, Ex. 21, at
95.)
Plaintiffs termination was ultimately upheld on August 1,
2016, by Dr. Lefebvre, and on August 12, 2016, by Brooks Keel,
Augusta University's President. (Aug. 1, 2016 Letter Upholding
Termination, Doc. 21-4, Ex. 22, at 98-99; Aug. 12, 2016 Letter
Upholding Termination, Doc. 21-4, Ex. 23, at 100.)
13
Post-termination,
Plaintiff
filed
a
new
disability
discrimination complaint where he claimed he was discriminated
against and not provided the reasonable accommodation of mediation
prior to termination.
(Pl.'s Discrimination Compl. and Request
for Mediation, Doc. 21-10, Ex. 5, at 36-38.)
Plaintiff s discrimination
complaint and
Mr. Powell reviewed
request for
mediation
and, by letter dated July 25, 2016, found that mediation was not
a reasonable accommodation because
[n^] ediation is [v]oluntary";
^'[b]oth Parties must agree on the outcome"; and
not
the
proper
actions."
venue
to
address
serious,
ediation is
formal
employment
(July 25, 2016 Letter from Mr. Powell, Doc. 21-10, Ex.
6, at 58-59.)
Plaintiff then filed a case in the Superior Court of Richmond
County on May 18, 2016, and amended the complaint for the first
time on September 19, 2016.
(See Docs. 1-13, 1-18.)
Plaintiff
states he received his Notice of Right to Sue from the U.S. Equal
Employment
amended
the
Opportunity
complaint
Commission,
for
employment discrimination.
1.)
On
Augusta
of
District of Georgia.
the
second
on
January
time
adding
22,
2018,
claims
of
(See Second Am. Compl., Doc. 1-3, at
February 21, 2019,
Division
the
and
Defendant removed the
U.S.
District
Court
for
case to the
the
(See Notice of Removal, Doc. 1.)
14
Southern
II.
LEGZy^ STAITDARDS
The Court should grant suimnary judgment only if "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
The purpose
of the summary judgment rule is to dispose of unsupported claims
or defenses, which, as a matter of law, raise no genuine issues of
material fact suitable for trial.
U.S. 317, 322—24 (1986).
the
outcome
Anderson
of
the
Celotex Corp. v. Catrett, 477
Facts are "material" if they could affect
suit
under
the
governing
substantive
law.
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
dispute of those material facts "is ^genuine' . . . [only] if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party."
Id.
evidence
of
in
support
"The mere existence of a scintilla of
the
[nonmovanfs]
position
will
be
insufficient" for a jury to return a verdict for the nonmoving
party.
Id. at 252; accord Gilliard v. Ga. Dep^t of Corrs., 500 F.
App'x 860, 863 (11th Cir. 2012) (per curiam).
As required, this Court will view the record evidence "in the
light most favorable to the [nonmovant]," Matsushita Elec. Indus.
Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and will "draw
all justifiable inferences in [Plaintiff's] favor."
United States
V. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)
(en banc) (internal quotation marks omitted).
party
opposing
summary
judgment
15
"may
not
Additionally, the
rest
upon
the
mere
allegations
or
denials
in
its
pleadings.
Rather,
its
responses . . . must set forth specific facts showing that there
is a genuine issue for trial."
Walker v. Darby, 911 F.2d 1573,
1576-77 (11th Cir. 1990).
III. DISCUSSION
The Court now addresses Defendant's arguments that summary
judgment
is
appropriate
for
Plaintiff's
(A)
disability
discrimination claims and (B) breach of contract claim.
A. Disability Discrimination
Plaintiff brings claims under the Rehabilitation Act and ADA.
Both
Acts
otherwise
prohibit
qualified
employers
from
individual
with
§ 12112(a); 29 U.S.C. § 794(a).
discriminating
a
against
disability.
''The standard
42
an
U.S.C.
for determining
liability under the Rehabilitation Act is the same as that under
the [ADA] . . . ; thus, cases involving the ADA are precedent for
those involving the Rehabilitation Act."
Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (internal citation omitted).
The
Court analyzes Plaintiff's Rehabilitation Act and ADA claims in
conjunction.
For
Plaintiff
discrimination
under
to
the
establish
a
prima
Rehabilitation
facie
Act,
he
case
must
of
show:
"(1) []he had a disability; (2) []he was otherwise qualified for
the
position;
and
(3) []he
16
was
subjected
to
unlawful
discrimination as the result of h[is] disability."
Garrett v.
Univ. of Ala, at Birmingham Bd. of Trs., 507 F.3d 1306, 1310 (11th
Cir. 2007).
prongs
one
Although Defendant does not concede a challenge to
and
two — that
Plaintiff
had
a
disability
and
was
otherwise qualified — Defendant only raises a challenge as to the
third prong.
(Br. Supp. Mot. for Summ. J., at 5.)
To establish
the third prong. Plaintiff argues Defendant discriminated against
him
under
the
theories
(2) disparate treatment.
of
(1) failure
to
accommodate
and
(Second Am. Compl., SISI 58-59, 67-68, 76-
77.)
1. Failure to Accommodate
Unlawful discrimination can occur when an employer ''fails to
provide a reasonable accommodation" to an otherwise qualified
person "unless doing so would impose an undue hardship on the
employer."
Cir. 2017).
Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th
An accommodation is only reasonable if it enables an
employee with a disability "to perform the essential functions" of
a position or "to enjoy equal benefits and privileges of employment
as are enjoyed by its other similarly situated employees without
disabilities."
29
C.F.R.
§ 1630.2(o)(l)(ii),
(iii).
The
reasonableness of an accommodation depends upon the specific facts
and
circumstances
of
the
case.
See
Stewart
v.
Happy
Hermanns
Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).
17
An
employer
need
not
demonstrate
undue
hardship
until
an
employee meets his "burden of identifying an accommodation and
demonstrating that it is reasonable."
Frazier-White v. Gee, 818
F.3d 1249, 1255 (11th Cir. 2016) (citing Lucas v. W.W. Grainger,
Inc., 257
F.3d
employer's
1249, 1255-56 (11th Cir. 2001)).
Muty to
provide
a
reasonable
"Moreover, an
accommodation
is
not
triggered unless a specific demand for an accommodation has been
made.'"
Id. at 1255-56 (quoting Gaston v. Bellingrath Gardens &
Home, Inc., 167 F.3d 1361, 1363-64 (11th Cir. 1999)).
If
it
is
unclear
what
sort
of
reasonable
accommodation
is
appropriate, "an informal, interactive process with the disabled
individual may be necessary."
Webb v. Donley, 347 F. App'x 443,
446 (11th Cir. 2009) (citing 29 C.F.R. § 1630.2(o)(3)) (emphasis
in original); accord Stewart, 117 F.3d at 1286-87.
As provided in
29 C.F.R. § 1630.2(o)(3), the interactive process "should identify
the
precise
potential
limitations
reasonable
resulting
accommodations
from
that
the
could
disability
overcome
and
those
limitations."
If
the
employer
engages
in
an
interactive
process,
the
employer will not be liable for failing to accommodate the employee
if there is a breakdown in the interactive process not due to the
18
employer
or
employee.5
there
is
no
reasonable
way
to
accommodate
the
See Stewart, 117 F.3d at 1286-87.
In the Eleventh Circuit, at the summary judgment stage, courts
do not reach the question of whether the employer engaged in the
interactive
process
unless
and
until
requested a reasonable accommodation.
the
employee
shows
he
Spears v. Creel, 607 F.
App'x 943, 948 (11th Cir. 2015) (per curiam).
When a request is patently unreasonable, the employer
has no duty to investigate it or begin the interactive
process.
[Willis v. Conopco, Inc., 108 F.3d 282, 285
(11th Cir. 1997)]; Spears . . . , 607 F. App'x [at]
948 . . . .
The same is true if the request does not
make a sufficiently specific demand. Gaston . . . , 167
F.3d [at] 1363.
Hargett v. Fla. Atl. Univ. Bd. of Trs., 219 F. Supp. 3d 1227, 1243
(S.D. Fla. 2016).
to
show
he
Therefore, the initial burden is on Plaintiff
made
a
sufficient
request
for
a
reasonable
accommodation.
Only then will the burden shift to Defendant to
show
satisfied
that
it
its
requirements
under
the
ADA
by
(1) providing a reasonable accommodation or (2) by engaging with
Plaintiff
in
accommodation
an
but
interactive
process
no accommodation
to
was
determine
provided
a
reasonable
because
either
(a) there was a breakdown in the process not due to Defendant or
(b) there was no reasonable way to accommodate Plaintiff.®
^ An employer can also satisfy its requirements by showing a reasonable
accommodation would cause an undue hardship. Defendant, however, does not argue
any potential accommodations would cause an undue hardship.
® Plaintiff cites the Third and Seventh Circuits to argue for application of a
more lenient standard than what is required by the Eleventh Circuit.
19
(Resp. to
Defendant
argues
that
Plaintiff s
claim
for
failure
to
accommodate fails as a matter of law because (a) Plaintiff failed
to request a reasonable accommodation (Br. Supp. Mot. for Summ.
J., at 7-9) and (b) even if Plaintiff requested an accommodation,
Plaintiff was responsible for the breakdown in the interactive
process {Reply Supp. Mot. for Summ. J., at 2-7).
For the following
reasons, the Court finds that there are genuine issues of material
fact as to Plaintiffs failure to accommodate claim.
Thus, the
Court denies Defendant's motion for summary judgment as to this
claim.
Mot. for Summ. J., at 10-13.) Plaintiff cites Taylor v. Phoenixville Sch. Dist.,
184 F.3d 296 {3d Cir. 1999), to argue that the PRC Reports were sufficient to
at least prompt Defendant to engage in the interactive process. In Taylor, an
employee had a psychotic episode and was hospitalized for three weeks. 184
F.3d at 314.
Her employer was aware of her episode and hospitalization. Id.
The employee's son also informed the employer that his mom would need
accommodations after returning to work and provided the employer with the means
of obtaining further information. Id. Based on these facts, the Third Circuit
found that the employer had a duty to engage in the interactive process to
determine what specific accommodations the employee would need. Id. The Third
Circuit quoted the Seventh Circuit in Bultemeyer v. Fort Wayne Cmty. Schs., 100
F.3d 1281, 1285 (7th Cir. 1996), for the proposition that "[i]f the note from
the psychiatrist requesting accommodation was too ambiguous and the employer
did not know what [the employee] wanted, the employer easily could have called
the psychiatrist for a clarification." Taylor, 184 F.3d at 314-15.
The Third Circuit, in Taylor, went further and stated that even if the
court finds there was no feasible accommodation, the employer still had a duty
to engage in the interactive process if only•to communicate to the employee
that there was no feasible accommodation.
Id. at 317.
The reasoning in Taylor
is inapplicable in the Eleventh Circuit, which requires an employee to show he
requested a specific and reasonable accommodation before the court will require
the employer to engage in the interactive process. See, e.g.. Spears, 607 F.
App'x at 948. Even though Plaintiff's proffered standard is inapplicable, for
reasons discussed below, the Court finds there is an issue of fact as to whether
Plaintiff reaches the Eleventh Circuit standard.
20
a. Request for a Reasonable Accommodation
Plaintiff states he was diagnosed with PTSD while at the PRC.
(Pl.'s St. Mat. Facts, Doc. 27-1, ^ 61; Resp. to Mot. for Summ.
J., at 11.)
diagnosis.
The Parties dispute who knew of Plaintiff's alleged
Defendant states only Mr. Rush was aware of Plaintiff's
disability because he served as Plaintiff s sole point of contact
during the fitness for duty evaluation.
Doc. 28, SI 58.)
{Def.'s St. Mat. Facts,
Plaintiff states that Dr. Lefebvre, Mr. Rush, and
Ms. Arnold knew of his diagnosis because Plaintiff emailed them
about his diagnosis.
Ex. 3, at 29.)
(Oct. 24, 2015 Email from PI., Doc. 27-2,
Plaintiff also states that he communicated his
diagnosis to his faculty advisors, including Dr. Ferguson, and his
co-residents.
(Pl.'s Resp. to St. Mat. Facts, SI 58.)
According
to
Plaintiff,
he
accommodation through the PRC Reports.
who saw the reports.
Reports.
requested
a
reasonable
Thus, the Court examines
Both Parties agree that Mr. Rush saw the PRC
(PRC Fitness for Duty Report, at 31 f[Plaintiff] has
provided us with written authorization that permits us to disclose
to [Mr. Rush] this letter.")
Plaintiff also states, ''Dr. Sato,
who was responsible for ensuring Plaintiff followed Defendant's
'fitness
for
duty'
Report],
which
requirements,
described
in
received
detail
[the
PRC
[Plaintiff's]
treatment history, and needs for further treatment."
21
Treatment
diagnoses,
(Pl.'s Resp.
to
St.
Mat.
Facts,
SI 58;
see
Pl.'s
Authorization
to
Information with Dr. Sato, Doc. 27-2, Ex. 5, at 38.)
Exchange
Following
therefrom. Plaintiff argues that the PRC Reports placed Mr. Rush
and
Dr.
Sato
on
notice
of his
disability
and
his
need
for
a
reasonable accommodation and, therefore, constituted an adequate
request for a reasonable accommodation.
Although Plaintiff did not apply the correct standard in
arguing
he
made
accommodation,
a
the
sufficient
Court
request
examines
the
for
evidence
a
to
reasonable
determine
whether, in the light most favorable to Plaintiff, he requested
accommodations and those requests were reasonable.
To do so, the
Court (i) explains that a request must be sufficiently specific
and
reasonable
and
(ii)
examines
Plaintiff's communications to
Defendant.
i. Request
Must
be
Sufficiently
Specific
and
Reasonable
An
employee
accommodation
makes
an
adequate
request
for
a
reasonable
when it is sufficiently specific and reasonable.
Gaston, 167 F.3d at 1363-64; Willis, 108 F.3d at 284-85.
For a
request to be sufficiently specific, it does not have to employ
any magic words, but the request must be definite enough that under
the circumstances, the employer can be said to know of both the
disability and desire for an accommodation.
See Haines v. Cherokee
Cty., No. 1:08-CV-2916-JOF/AJB, 2010 WL 2821853, at *21-22 {N.D.
22
Ga. Feb. 16, 2010), R. & R. adopted as modified by 2010 WL 2821780
(N.D.
Ga.
specific
July
15, 2010)
accommodation,
accommodate claim.").
must
actually
a
[]he
plaintiff
cannot
never
establish
a
requests a
failure
to
Further, the employee, or a third party,
communicate
the
request
to
the
employer.
Id.
(finding that the employee failed to make an adequate request when
the employer knew the employee had a disability and attended a
counseling program).
The reasonableness of a requested accommodation is a fact-
intensive
inquiry.
See
Stewart,
117
F.3d
at
1285.
An
accommodation is reasonable if it allows the employee to perform
the job's essential functions.
Lucas, 257 F.3d at 1255.
The ADA
provides that a reasonable accommodation may include, among other
things,
^'job
restructuring,
schedules, . . . appropriate
examinations,
similar
training
accommodations
part-time
adjustment
materials
for
or
or
or
modified
modifications
policies, . . . and
individuals
with
work
of
other
disabilities."
42
U.S.C. § 12111(9)(B).
ii.
Plaintiff's Communications to Defendant
The Court begins by quickly addressing Plaintiff's requests
that cannot be considered requests for reasonable accommodations.
The Court then generously construes the PRC Reports to determine
if there exists a genuine issue of fact as to whether Plaintiff
requested a reasonable accommodation.
23
I. SUPPORTIVE AND STRUCTURED ENVIRONMENT
Plaintiff's
request
for
environment" is unreasonable.
13.)
a
"supportive
and
structured
(Resp. to Mot. for Summ. J., at 12-
General requests for a change in attitudes or environment
are not specific enough.
Posteraro v. RBS Citizens, N.A., 159 F.
Supp. 3d 277, 290 (D.N.H. 2016) (finding a request for a "peaceful
calm environment" too vague).
Even if Plaintiff's request had
been targeted to a specific person, he needed to identify specific
stressors.
See Hargett, 219 F. Supp. 3d at 1243-44 (finding that
the employee's demand for her supervisor to "cease his hostile
confrontations with her" was not specific enough because "[t]hat
does not translate to a targeted demand relating to a ^specific
stressor.'"); see also Gonzagowski v. Widnall, 115 F.3d 744, 747-
48
(10th
Cir.
1997)
environment may
in
(Although
some
"specific
cases
be
stressors in
legitimate
a
targets
work
of
accommodation, it is unreasonable to require an employer to create
a work environment free or stress and criticism.").
II. MODIFICATION IN DISCIPLINARY PROCEDURES
Similarly, Plaintiff s post-termination request for mediation
in lieu of termination as an accommodation is unreasonable.
"The
ADA generally gives employers wide latitude to develop and enforce
conduct rules.
The only requirement imposed by the ADA is that a
conduct rule be job-related and consistent with business necessity
when it is applied to an employee whose disability caused [him] to
24
violate the rule."
U.S. Equal Emp. Opportunity Conim'n, The Americans
WITH Disabilities Act: Applying Performance and Conduct Standards to Employees
WITH Disabilities
(2017).
Thus,
requests
for
employers
disciplinary procedures are generally unreasonable.
to
alter
See Haines,
2010 WL 2821853, at *20 (quoting Hamilton v. Sw. Bell Tel. Co.,
136 F.3d 1047, 1052 (5th Cir. 1998)) (stating the employer "did
not
need
to
provide
any
accommodation
for
[p]laintiff's
unprofessional emails or other outbursts" [because] "the ADA does
not
insulate
emotional
or
violent
outbursts
blamed
on
an
impairment").
Additionally,
as
applied
to
this
request for mediation was unreasonable.
already
been
terminated
when
situation.
Plaintiff's
Even though Plaintiff had
Defendant
received
Plaintiff s
request for mediation as an accommodation, Mr. Powell responded to
Plaintiff's request and found that mediation was not reasonable
because Augusta University's mediation policy was voluntary; all
parties must agree on the outcome; and mediation was not the proper
venue to address serious employment actions, such as termination,
which was covered by the University's formal grievance policies
and procedures that Plaintiff had already exhausted.
has
the
burden
to
show
that
the
requested
Plaintiff
accommodation
is
reasonable and would allow him to perform the essential functions
of his job.
Plaintiff has not explained how, and the Court can
find nothing establishing that, it would have been a reasonable
25
accommodation
to
engage
in
mediation
after
having
already
exhausted all the formal grievance policies and procedures.
III. OTHER STATEMENTS COMMUNICATED TO DEFENDANT
The Court now generously construes all other statements made
within the PRC Reports and finds that there are genuine issues of
fact
as
to
whether
accommodation.
The
Plaintiff
PRC
made
Reports
a
request
contain
for
a
reasonable
recommendations,
and
Plaintiff agreed to comply with those recommendations in the PRC
Fitness for Duty Report.
(PRC Fitness for Duty Report, at 34-35
(Plaintiff signed the recommendations on November 18, 2015); PRC
Treatment Report, at 49-51.)
The recommendations contain the
following agreements between Plaintiff and the PRC:
1. ''[IJnitial contact with residents, attendings, and other
staff as designated by Mr. Rush, will occur during meetings
arranged by Mr. Rush."
2. Plaintiff agrees to ^^participate in individual therapy
sessions with a psychotherapist who is agreeable to Mr.
Rush."
3. Plaintiff ''agree[s] to meet regularly with a workplace
monitor, as approved by Mr. Rush."
4. Plaintiff acknowledges his "work schedule will need to
allow for the opportunity to continue in [his] aftercare
plan.
This would include regularly scheduled appointments
with [his] treaters, [his] mentor and [his] monitor."
26
(PRC Fitness for Duty Report, at 34-35; PRC Treatment Report, at
49-50.)
The actions impliedly agreed to by Mr. Rush and others appear
sufficiently specific and reasonable.
The actions are minor tasks,
including
Plaintiff's
modifying
procedures
and
work
schedule.
Plaintiff seemingly believed these changes would assist in his
transition back to the Residency Program.
The Court
agrees with
Defendant that the
PRC Reports are
agreements between Plaintiff and the PRC to engage in certain
behaviors. (Reply Supp. Mot. for Summ. J., at 4.)
What is unclear,
however, is whether the PRC Reports can be considered a request
from Plaintiff to Defendant, specifically Mr. Rush.
The record
contains facts showing Plaintiff knew of and authorized for Mr.
Rush and Dr. Sato to receive the reports and information within.
Clearly, there are at least implied actions that Mr. Rush and
others agreed to take to ensure Plaintiff's smooth transition back
to the Residency Program.
It is unclear, however, whether Mr.
Rush communicated to the PRC that he would take these actions and
how Mr. Rush's name came to be in the reports at all.
Construed
in the light most favorable to Plaintiff, a factfinder could
conclude that Mr. Rush agreed to take the actions cited within the
PRC
Reports to
accommodate
Residency Program.
Plaintiff
upon
his
return
to the
It could also be viewed that Plaintiff used
27
the
PRC
to
send
the
reports
as
a
way
to
convey
Plaintiff's
accommodation requests to Mr. Rush.
The
Court notes the record contains evidence that Plaintiff
also denied having a disability and believed he was required to
undergo treatment for retaliatory reasons, which indicates that he
did
not
intend
accommodation.
the
reports
to
be
sent
as
a
request
for
an
(See PRC Treatment Report, at 41 {"It should be
noted that both Dr. Laun and his attorney asserted that the reason
for the referral was retaliatory in nature and related to alleged
insurance fraud, physical assault, and verbal threats from one of
the attending faculty.").)
However, the facts also show that
Plaintiff informed others he had a disability.
24, 2015 Email, at 29.)
(See, e.g., Oct.
The Court, thus, believes there are
genuine issues of material facts as to whether Plaintiff requested
a reasonable accommodation.
b. Engagement in the Interactive Process
Defendant failed to cite to information showing that, if the
requests were adequate requests for a reasonable accommodation.
Defendant
reasonably
judgment for
accommodated
Plaintiff.
Thus,
summary
Defendant is only appropriate if, as argued by
Defendant, it can show it engaged with Plaintiff in the interactive
process and Plaintiff was responsible for the breakdown. The Court
finds that there are insufficient facts in the record to show that
Mr.
Rush
or
others engaged
with
28
Plaintiff in
the interactive
process
and,
if
so,
that
Plaintiff
was
responsible
for
the
breakdown in the process as a matter of law.
Defendant states that it attempted to engage informally in
the interactive process with Plaintiff.
Summ. J., at 6-7.)
(Reply Supp. Mot. for
In support of its position. Defendant states
that prior to Plaintiff returning to the Residency Program, Dr.
Lefebvre
sent
Plaintiff
a
letter
explaining
expectations for [Plaintiff's] return."
from Dr. Lefebvre, at 54-55.)
stated
that,
among
other
the
''specific
(Nov. 11, 2015 Letter
Within the letter. Dr. Lefebvre
things.
Plaintiff
would
be
under
assessment and closely monitored, he "must participate in posttreatment activities as determined by the [PRC]," and Dr. Kevin
Frazier would be Plaintiff's advocate upon his request.
Defendant states that Plaintiff failed
assistance.
to
ask
Dr.
(Id.)
Frazier for
(Reply Supp. Mot. for Summ. J., at 7.)
Defendant further states that Dr. Stevens and Mr. Rush met
with Plaintiff on December 14, 2015, "to discuss the expectations
of
his
return
to
the
residency
program,
during
which
he
was
informed that he would be placed on a six[-]week assessment and
probationary period." (Id. at 6.)
Defendant cites two subsequent
meetings between Dr. Stevens and Plaintiff.
First, Dr. Stevens
met with Plaintiff to provide him with a memorandum summarizing
the
faculty's
period.
(Id.;
evaluation
of
Plaintiff
during
his
assessment
Feb. 12, 2016 Faculty Evaluation, at 59-63.)
29
Second,
"[o]n
February
19,
2016,
Dr.
Stevens . . . provided
[Plaintiff] with another memorandum concerning the OMFS staff's
expectations
for
Plaintiff's
improvement
and
actions
Plaintiff needed to take to meet those expectations."
that
(Reply Supp.
Mot. for Summ. J., at 6.)
Defendant argues that it attempted to
engage
process
in
the
interactive
with
Plaintiff through
^'the
letter from Dr. Lefebvre, Plaintiff's meetings with Dr. Stevens
and [Mr.] Rush, and his probationary and assessment period."
(Id.
at 6-7.)
Conversely, Plaintiff argues that Defendant completely failed
to engage in the interactive process with him.
Summ. J., at 13-16.)
(Resp. to Mot. for
Specifically, Plaintiff states ''Defendant
never attempted to follow up with [Plaintiff] regarding the PRC's
recommendations or otherwise explore any means to mitigate the
impact
of
[Plaintiff]'s
behavioral skills."
disability
on
his
interpersonal
and
(Id. at 15.)
Defendant provides evidence that individuals reached out to
Plaintiff upon his return from the PRC.
None of the conversations,
however, appear to include discussions relating to the potential
accommodation
requests
within
the
PRC
Reports.
First,
Dr.
Lefebvre's letter could not have been a response to the PRC Reports
because Dr. Lefebvre's letter was sent before Plaintiff signed the
recommendations and before the PRC Reports were sent to Mr. Rush
and Dr. Sato.
Second, although possible that Defendant engaged in
30
the interactive process through the meetings with Dr. Stevens and
Mr. Rush and the probationary and assessment period, there is also
evidence that these interactions were more disciplinary in nature;
the point being to convey to Plaintiff Defendant's expectations
without allowing for any discussion of what Plaintiff may have
requested of Mr. Rush.
whether
Defendant
judgment
as
to
Because there is a genuine question of
engaged
in
Plaintiff's
the
interactive
failure
to
process,
accommodate
summary
claim
is
inappropriate.
2. Disparate Treatment
Plaintiff also brings a disparate treatment claim under the
Rehabilitation Act and the ADA based on Plaintiff's discharge from
the Residency Program.
there
is
treatment
no
direct
claim
(Second Am. Compl.,
evidence
must
be
of
analyzed
58, 67, 76.)
discrimination,
under
the
a
burden
When
disparate
shifting
framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973).
Under McDonnell Douglas, a plaintiff
establishes a prima facie case of disability discrimination by
showing ''(1) he ha[d] a disability (2) he [was] otherwise qualified
for
the
position;
and
(3)
he
was
subjected
discrimination as the result of his disability."
to
unlawful
Sutton v. Lader,
In its motion for summary judgment, Defendant presents no challenge as to
whether Plaintiff was a qualified individual with a disability.
The Court
focuses on Defendant's challenges and makes no judgment as to whether Plaintiff
was a qualified individual with a disability.
31
185
F.3d
1203,
1207
(11th
Cir.
1999).
Doing
so
creates
rebuttable presumption that the employer acted illegally.
McDonnell Douglas, 411 U.S. at 802.
a
See
"The burden then must shift
to the employer to articulate some legitimate, nondiscriminatory
reason for the [termination]."
Id.
The employer's burden is an
"exceedingly light" one of production, not persuasion, which means
the
employer "need
only
produce
evidence
that could
allow
a
rational fact finder to conclude that [the plaintiff's] discharge
was not made for a discriminatory reason."
Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998); Meeks v.
Comput. Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994) (quoting
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529
(11th Cir. 1992)).
If the employer meets this burden, the burden
shifts back to the plaintiff who can only avoid summary judgment
by
presenting
"significantly
probative"
proffered reasons are pretextual.
evidence
that
the
Young v. Gen. Foods Corp., 840
F.2d 825, 829 (11th Cir. 1988).
a. Prima Facie Case
Without conceding the point.
Defendant proceeds assuming
arguendo that Plaintiff can establish a prima facie case of
discrimination.
(Br. Supp. Mot. for Summ. J., at 10.)
The Court
also proceeds assuming, without deciding, that Plaintiff has
established a prima facie case of discrimination for his disparate
treatment claim.
32
b. Legitimatef Non-Discriminatory Reason
Defendant's
proffered
reason
for
terminating
Plaintiff
in
June of 2016 was his ^^[r]ude or discourteous behavior" and his
"[i]nsubordination
Augusta
or
University's
willful
work
disobedience"
rules
(Termination Notice, at 57.)
and
in
the
violation
Final
of
Warning.
Because Defendant's burden is only
one of production, not proof. Defendant easily meets its burden.
The burden now shifts back to Plaintiff to show pretext.
c. Pretext
"An employer may fire an employee for a good reason, a bad
reason, a reason based on erroneous facts, or for no reason at
all, as long as its action is not for a discriminatory reason."
Damon v. Fleming Supermarkets of Fla., Inc., 196 F. 3d 1354, 1363
n.3 (11th Cir. 1999) (emphasis omitted) (internal quotation marks
omitted).
Having
proffered
a
non-discriminatory
reason
for
terminating Plaintiff, to survive summary judgment. Plaintiff must
show Defendant's reason was pretextual.®
To
show
pretext,
a
plaintiff
must
present
"sufficient
evidence to demonstrate the existence of a genuine issue of fact
as to the truth of each of the employer's proffered reasons for
its
challenged
action"
by
demonstrating
"such
weaknesses.
s Doing so would allow Plaintiff only to survive summary judgment and "thereby
reach a jury on the ultimate question of discrimination, . . . [It] does not
vitiate [Plaintiff's] ultimate burden to prove by a preponderance of the
evidence that [Defendant] terminated [Plaintiff] based on a discriminatory
motive."
Damon, 196 F.3d at 1363 n.3.
33
implausibilities,
inconsistencies,
incoherencies,
or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy
of credence."
Cooper v. S. Co., 390 F.Sd 695, 725 (11th Cir. 2004)
(citation omitted), overruled^ in part,, on other grounds by Ash v.
Tyson
Foods,
Patterns,
106
Inc.,
F.3d
546
U.S.
1519,
454
(2006);
1529 (11th
Cir.
Combs
1997).
v.
Plantation
Evidence
of
intentional discrimination, not proof thereof, ^^is all a plaintiff
needs to defeat a motion for summary judgment."
Co., 32 F.3d 520, 525 (11th Cir. 1994).
Howard v. BP Oil
If '''the proffered reason
is one that might motivate a reasonable employer, an employee must
meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason,' or
showing that the decision was based on erroneous facts."
Burgos-
Stefanelli v. Sec'y, U.S. Dep't of Homeland Sec., 410 F. App'x
243, 247 (11th Cir. 2011) (quoting Chapman v. AI Transp.^ 229 F.3d
1012, 1030 (11th Cir. 2000)).
Evidence that the employer's reason is false may raise enough
suspicion
judgment.®
of
pretext
for
the
plaintiff
to
survive
summary
The employer, however, "would be entitled to judgment
9 The Eleventh Circuit has stated, "A reason is not pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was
the real reason." Brooks v. Cty. Common of Jefferson Cty., 446 F.3d 1160, 1163
(llth Cir. 2006) (emphasis in original) (internal quotation marks omitted).
The Court, however, also notes that the Supreme Court acknowledged that there
may be instances where disbelieving the employer's proffered reason "together
with the elements of the prima facie case, suffice to show intentional
discrimination."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see
34
as a matter of law . . . if the plaintiff created only a weak issue
of fact as to whether the employer's reason was untrue and there
was
abundant
and
discrimination
uncontroverted
had
independent
occurred."
Reeves
Prods., Inc., 530 U.S. 133, 148 (2000).
v.
evidence
Sanderson
that
no
Plumbing
"Any believable evidence
which demonstrates a genuine issue of fact regarding the truth of
the employer's explanation may sustain the employee's burden of
proof."
2003).
Steger v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir.
As with all parties opposing summary judgment. Plaintiff
must put forth more than a mere scintilla of evidence in support
of his position.
Anderson, 477 U.S. at 252.
The Court finds Plaintiff has not shown Defendant's reasons
were
pretextual.
As
detailed
above,
since
the
beginning
of
Plaintiff's time at the Residency Program, individuals complained
about
Plaintiff's
rude
and
insubordinate
behavior,
ability
to
safely care for patients, and difficulty following procedures.
The following events occurred prior to Plaintiff's alleged
PTSD diagnosis.
In March of 2015, Dr. Ferguson reported Plaintiff
for his first Code of Conduct violation based on the March 13,
2015 incident when Plaintiff left the clinic without permission.
While
the
Investigative
Subcommittee
investigated
the
first
also Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308-09 (11th Cir. 2012).
Thus, showing that the employer's proffered reason is false may, sometimes, be
sufficient to allow a reasonable juror to find intentional discrimination even
without additional evidence that the employer's real reason was discriminatory.
35
violation, Dr. Ferguson reported Plaintiff for a second Code of
Conduct violation based on Dr. Paquin's July 4, 2014 complaint
about Plaintiff being aggressive towards her.
The subcommittee
investigating the second Code of Conduct violation reported many
concerns
about
expressing
Plaintiff
apprehensions
based
about
on
the
him.
number
Based
of
on
individuals
this
report.
Plaintiff was placed on administrative leave and sent to complete
a fitness for duty evaluation.
The evidence shows that the reason
Plaintiff was sent to the VCAP was the number and seriousness of
the complaints about Plaintiff.
Upon his return from the PRC — where Plaintiff states he was
allegedly diagnosed with PTSD — Plaintiff was under evaluation and
required
to
abide
by
certain
expectations,
yet
continued to file complaints about Plaintiff.
individuals
These reported
incidents culminated in Dr. Ferguson issuing Plaintiff the Final
Warning.
Ms. Arnold and Mr. Rush found that Plaintiff violated
the Final Warning on May 17, 2016.
As a result. Plaintiff was
terminated.
Plaintiff attempts to show pretext, first, by arguing that
Defendant
behavioral
''admits
symptoms
that
that
[Plaintiff]
accompanied
was
his
terminated
mental
for
his
condition."
{Resp. to Mot. for Summ. J., at 16.) The flow of Plaintiff's logic
appears to be that (1) Plaintiff has a disability that causes
behavioral
issues;
(2) Defendant's
36
proffered
reason
for
terminating him was, in part. Plaintiff's behavioral issues; and
(3) because
Plaintiff's
behavioral
issues
stemmed
from
his
disability. Defendant admits to terminating Plaintiff because of
his disability.
Plaintiff's argument, however, is misplaced.
Employers may
discipline employees for misconduct related to the
employee's
disability as long as the employer's explanation is not a pretext
for discrimination.
Sever v. Henderson, 220 F. App'x 159, 161-62
(3d Cir. 2007) ("Though an employer is prohibited from discharging
an employee based on his disability, the employer is not prohibited
from
discharging
an
employee
for
misconduct,
even
if
that
misconduct is related to his disability."); Walton v. Spherion
Staffing LLC, 152 F. Supp. 3d 403, 407-08 (E.D. Pa. 2015) ("A
survey of federal case law supports [the d]efendant's argument
that a disabled person can be lawfully terminated for disability[]related misconduct — so long as the employer's explanation is not
a pretext for discrimination."); see also Alvarez v. Sch. Bd. of
Broward Cty., 208 F. Supp. 3d 1281, 1286 (S.D. Fla. 2016) ("The
law does not require the [employer] to ignore misconduct that has
occurred.") (quoting Halpern v. Wake Forest Univ. Health Scis.,
669 F.3d 454, 465 (4th Cir. 2012)).
The evidence shows that
Defendant terminated Plaintiff based on numerous complaints about
Plaintiff's behavior and his recorded work place misconduct.
37
Second,
Plaintiff
attempts
to
show
pretext
by
arguing
Plaintiff's ^^alleged behavioral issues became a reason to dismiss
him only after Defendant became aware that they were disability-
related."
(Resp. to Mot. for Summ. J., at 17.)
Plaintiff argues,
''Prior to his diagnosis of PTSD, Defendant took no action at all
regarding [his] conduct complained of."
(Id. at 19.)
Plaintiff's argument here is unsupported by the evidence.
Defendant did not tolerate Plaintiff s conduct violations before
his alleged diagnosis.
After two events significant enough for
Dr. Ferguson to report Code of Conduct violations. Plaintiff was
placed on administrative leave and sent for a fitness for duty
evaluation.
These events all occurred before Plaintiff's alleged
diagnosis.
Plaintiff
states
that
he
was
at
least
unaware
of
all
complaints against him except for one until his post-discharge
hearing in July of 2016.
that
Plaintiff
was
The Court believes this unlikely given
provided
two
reports
of
Code
of
Conduct
violations, placed on administrative leave twice, sent to the VCAP
and PRC Program, and provided with the Final Warning before his
post-discharge hearing.
Regardless, Defendant is correct that
this argument is misdirected because "[t]he inquiry into pretext
centers upon the employer's beliefs, and not the employee's own
perceptions of his performance." Holifield v. Reno, 115 F.3d 1555,
1565 (11th Cir. 1997), abrogated on other grounds by Lewis v. City
38
of Union City, 918 F.3d 1213 (11th Cir. 2019).
deny
the
existence
of
the
complaints
Plaintiff does not
against
him,
and
the
complaints have been authenticated in the record.
Third,
Plaintiff
[Plaintiff's]
argues
behavioral
that
issues
^^Defendant's
caused
safety
assertion
concerns
that
lacks
support" because ''in his multiple altercations with Dr. Ferguson,
[Plaintiff] never engaged in physical violence or threatened to
harm him."^°
(Resp. to Mot. for Summ. J., at 19-20.)
Plaintiff never threatened Dr.
Even if
Ferguson, the evidence supports
that individuals expressed concerns for their personal safety
because of Plaintiff.
Ms. Webster stated she feared Plaintiff,
and the July 2, 2015 Subcommittee Report stated that "several
individuals
were
fearful
that
[Plaintiff]
could
experience
a
personal breakdown in rational thought and proceed to violence
(firearms)."
The evidence also supports that individuals reported concerns
over patient safety because of Plaintiff.
Among other reports,
Dr. Salgueiro's October 31, 2014 email stated that Plaintiff "is
not aware of his limitations and lacks good clinical judgment."
In support. Dr. Salguiero stated that Plaintiff is "unable to
The
Termination
Notice
terminating Plaintiff.
does
not
list safety concerns
as
a
reason
for
(S^ Termination Notice, at 57-58.) The Termination
Notice and Defendant's briefs, however, reference the reported safety concerns.
(Id. at 57; Br. Supp. Mot. for Summ. J., at 11, 13, 15.)
The Court, thus,
analyzes whether by noting concerns with safety. Defendant's reasons for
terminating Plaintiff were pretextual.
39
follow directions," "unreliable," and "dangerous."
Dr. Salguiero
concluded
assuming
that
he
"do[es]
not
feel
comfortable
the
liability for the things [Plaintiff] does in the clinic and [is]
very uncomfortable with [Plaintiff] caring for hospital and major
surgical cases."
Furthermore, the July 2, 2015 Subcommittee Report
noted that some people had concerns regarding the boundaries of
Plaintiff's "judgment for patient care delivery."
{July 2, 2015
Subcommittee Report, at 40.)
The facts here are distinguishable from Plaintiff's cited
case, R.W. v. Bd. of Regents of the Univ. Sys. of Ga., because, in
R.W., there was an absence of evidence of the nature, probability,
severity, and duration of the risk the plaintiff posed.
114 F.
Supp. 3d. 1260, 1284 (N.D. Ga. 2015) (finding the nature of the
risk posed was an issue of fact because the defendant claimed the
plaintiff was a direct threat but "was unable to articulate what
specifically [the p]laintiff was at risk of doing.").
numerous complaints attribute concerns
patient
safety to
Plaintiff.
regarding
Here,
personal and
Plaintiff fails to
show
that
Defendant mentioning safety concerns as a reason for terminating
Plaintiff was pretextual.
Accordingly, Plaintiff failed to show
the existence of a genuine issue of material fact regarding the
truth of Defendant's reasons for terminating Plaintiff.
40
B. Breach of Coxi'kract
Plaintiff argues Defendant breached the terms of the OMFS
Program
Resident
Handbook
("RH")
by
(1) "failing
to
provide
[Plaintiff] with notice, an investigation, and a hearing before
terminating
his
residency"
(Second
Am.
Compl.,
SI 45)
and
(2) "ignoring the recommendation of the hearing subcommittee and
opting to instead uphold [his] termination" (id. SI 46).
Court to
determine
whether
Defendant
breached
a
For the
contract
with
Plaintiff, the Court must first determine whether the breach of
contract claim is based upon a written contract and, thus, not
barred by sovereign immunity.
"sovereign
immunity
extends
Under the Georgia Constitution,
to
the
[S]tate
and
all
of
its
departments and agencies" and "can only be waived by an Act of the
General
Assembly
which
specifically
provides
that
sovereign
immunity is thereby waived and the extent of such waiver."
Ga.
CONST., art. I, § II, para. IX(e); accord Ga. Dep^t of Comm. Health
V. Data Inquiry, LLC, 722 S.E.2d 403, 405-06 (Ga. Ct. App. 2012).
Furthermore, "[t]he doctrine of sovereign immunity requires that
the conditions and limitations of the statute that waives immunity
be strictly followed."
Ruff, 726 S.E.2d at 456 (citations and
internal quotation marks omitted).
11 "The [BOR] is the state agency vested with the governance, control and
management of the University System of Georgia. Sovereign immunity applies to
the [BOR]." Bd. of Regents of the Univ. Sys. of Ga. v. Ruff, 726 S.E.2d 451,
456 (Ga. Ct. App. 2012) (internal quotation marks and citations omitted)
overruled on other grounds by Rivera v. Washington, 784 S.E.2d 775 (Ga. 2016).
41
One
such
constitutional
exception
is
for
^^any
action
ex
contractu for the breach of any written contract now existing or
hereafter entered
agencies."^2
into
by the
[S]tate
or its departments
Const, of 1983, art. I, § II, para. IX(c).
and
A
written contract is required; ^^[a]n implied contract will not
support a waiver of immunity under the provisions of the Georgia
Constitution."^2
Barnes, 743 S.E.2d at 611.
In addition to a
Proving the existence of a written contract may prove that Georgia waived
sovereign immunity from a breach of contract suit in state court, but it, alone,
does not prove that the State has waived sovereign immunity from suit in federal
court. See Barnes v. Zaccari, 669 F.3d 1295, 1308 (11th Cir. 2012) (quoting
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
676 (1999) ("[A] State does not consent to suit in federal court merely by
consenting to suit in the courts of its own creation."). "Georgia has not
waived its Eleventh Amendment immunity from suit in federal court for breach of
Id. To bring a breach of contract claim against the State
in federal court, then, the State must waive sovereign immunity as to suit in
federal court. "Generally, we will find a waiver either if the State voluntarily
contract claims."
invokes our jurisdiction, or else if the State makes a ^clear declaration' that
it intends to submit itself to our jurisdiction."
Id. at 1309 (quoting Fla.
Prepaid, 527 U.S. at 675-76). If the Court finds that Defendant waived sovereign
immunity as to this breach of contract claim in state court, then, by removing
this case from state court (Notice of Removal), Defendant also waived sovereign
immunity as to Plaintiff's breach of contract claim in federal court.
Meyers
ex rel. Benzinq v. Texas, 410 F.3d 236, 249-50 (5th Cir. 2005) (citing Lapides
V. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 614 (2002)) (stating
that by agreeing to remove the case, the state voluntarily invoked federal court
jurisdiction). As discussed below, the Court finds, however, that Defendant
did not waive sovereign immunity as to this breach of contract claim.
13 Because an implied contract will not waive Defendant's sovereign immunity.
Plaintiff must show the Parties intended to be bound to a specific written
contract. Bd. of Regents of Univ. Sys. of Ga. v. Barnes, 743 S.E.2d 609, 61112 (Ga. Ct. App. 2013) (requiring that, to establish a written contract
sufficient to waive the State's sovereign immunity, the student had to prove
more than just that the state school provided the student a copy of the student
handbook; the court had to determine whether the parties "demonstrate[d] their
intent to enter into a binding contract"), disapproved of on other grounds by
Wolfe V. Bd. of Regents of the Univ. Sys. of Ga, 794 S.E.2d 85 (Ga. 2016).
Plaintiff's citations to cases involving private institutions not requiring a
demonstrated intent to be bound to the handbook are unpersuasive.
(Resp. to
Mot. for Summ. J., at 23.) Plaintiff also does not appear to rely on the RH
alone as creating a written contract but argues that, for reasons discussed
below, the RH is signed by the Parties. (Id. at 21 ("Because the ^ [RH] contains
'
all the necessary terms of a contract, is signed by all parties, and is in
writing. Defendant is not entitled to sovereign immunity.").
42
writing, ^^there must be parties able to contract, a consideration
moving to the contract, the assent of the parties to the terms of
the contract, and a subject matter upon which the contract can
operate."
O.C.G.A. § 13-3-1.
''The party seeking to benefit from the waiver of sovereign
immunity bears the burden of proving such waiver."
Bd. of Regents
of the Univ. Sys. of Ga. v. Doe, 630 S.E.2d 85, 88 (Ga. Ct. App.
2006).
Thus, because Defendant asserts sovereign immunity in its
motion for summary judgment. Plaintiff "has the burden of showing
that the contract sought to be enforced is in writing and contains
all of the terms necessary to constitute a valid contract."
Data
Inquiry, LLC, 722 S.E.2d at 406 (stating the plaintiff has the
"burden of producing affirmative evidence to demonstrate that a
valid written contract exists in order to establish a waiver of
the [d]epartment's sovereign immunity"); see also Barnes, 743
S.E.2d at 611 ("[A]s the party seeking to benefit from this waiver,
[the plaintiff], not the Board, had the burden of proof on this
issue.").
The main issue in this breach of contract claim is whether
the Parties mutually assented to be bound by the Code of Conduct
within the RH.
When determining whether parties mutually assent
to the terms of a contract:
[CJourts apply an objective theory of intent whereby one
party's
intention
is
deemed
to
be
that
meaning
a
reasonable man in the position of the other contracting
43
party would ascribe to the first party's manifestations
of assent, or that meaning which the other contracting
party
knew
the
first
party
ascribed
to
his
manifestations of assent.
Legg v. Stovall Tire & Marine, Inc., 538 S.E.2d 489, 491 (Ga. Ct.
App. 2000).
Although assent to the terms of the contract may be shown by
the parties signing the written contract, assent may be shown in
other ways.
Cochran v. Eason, 180 S.E.2d 702, 704 (Ga. 1971).
The express language in the contract may evidence the parties'
intent to be bound, or, in other instances, "the circumstances
surrounding the making of the contract, such as correspondence and
discussions, are relevant in deciding if there was a mutual assent
to an agreement." Legg, 538 S.E.2d at 491; see also Cochran, 180
S.E.2d at 703-04.
"Where such extrinsic evidence exists and is
disputed, the question of whether a party has assented to the
contract is generally a matter for the jury." Legg, 538 S.E.2d at
491.
The following facts are undisputed. As a reminder. Plaintiff
began his residency on July 1, 2012.
Plaintiff was provided a
link to the RH as part of his employment processing.
to St. Mat. Facts,
RH in the record.
24, 26.)
(Pl.'s Resp.
There are no signatures on the
(See RH, Doc. 21-5, at 13-126.)
The RH contains
i-J In this section, the Court cites Plaintiff's Response to Defendant's Statement
of Material Facts only when Plaintiff does not dispute the facts alleged by
Defendant, unless otherwise noted.
44
a Code of Conduct section that lists procedures to be taken when
a resident is suspected of violating the Code of Conduct.
{Code
of Conduct, Doc. 21-5, at 93-102.)
In
July
of
2014,
Plaintiff
Expectations Memorandum (^^REM").
was
given
the
OMFS
Resident
(REM, Doc. 21-7, at 30.)
Both
Plaintiff and Dr. Ferguson signed the REM on July 2, 2014, two
years after being provided the link to the RH.
(Id. at 30.)
The
signatures are directly below the following language:
I, Billy Laun, have read the above Resident Expectations
and understand the rules, regulations, policies and my
obligations as a Georgia Regents University College of
Dental
Medicine
Oral
and
Maxillofacial
Surgery
Resident/Intern.
(Id.)
Sections II through IV of the REM, pertaining solely to the
leave policy, refer to the RH in the sections' titles as follows:
II.
Leave Policy: Annual[:] (see Resident Handbook)
III. Leave
Policy:
Medical
Leave:
(see
Resident
Handbook)
IV.
Leave Policy: Professional Leave: (see Resident
Handbook)
(Id. at 21.)
Apart from the three leave sections, the REM does
not refer to the RH.
Plaintiff makes two main arguments to show the RH is a valid
written contract.
First, by signing the REM as part of the RH,
45
the Parties signed the entire RH.
23-24.)
(Resp. to Mot. for Summ. J., at
Second, even if the signed REM was not part of the RH,
then (a) the RH was a contemporaneously signed writing to the REM
or (b) the REM incorporated the RH.^^
(Id. at 24-27.)
Although the Court views evidence in the light most favorable
to Plaintiff, he has the burden to point to specific evidence in
the
record
contract
following
to
show
waiving
reasons,
the
Parties
Defendant's
the
entered
sovereign
Court finds
into
a
valid
immunity.
Plaintiff failed
written
For
the
to
show
Defendant waived sovereign immunity as to Plaintiff s breach of
contract claim.
Plaintiff makes no argument and fails to cite to any evidence showing that
the Parties exhibited their intent to be bound to the RH in ways other than by
signing the REM.
(See Resp. to Mot. for Summ. J., at 21-27.)
Plaintiff,
however, relies heavily on Doe.
In Doe, there was an offer of employment
requiring further approval by the BOR. 630 S.E.2d at 89. Even though the BOR
had not approved the appointment, the Court found there was a valid written
contract because the parties "clearly manifested their intent to be bound by
their agreement" when the plaintiff began his employment and the school
"publicly announced [the plaintiff's] appointment on numerous occasions." Id.
Although the court, in Doe, cited the rule from Baker v. Jellibeans, Inc., 314
S.E.2d 874, 876 (1984), allowing signed contemporaneous writings
contract, the court did not find that the presence of multiple signed
formed the employment contract at issue. Doe, 630 S.E.2d at 89.
looked outside the seemingly unexecuted employment contract and
to form a
agreements
The court
found the
parties' actions evidenced an intent to be bound to the terms of the document.
Id. Here, Plaintiff's arguments focus solely on the Parties' signatures on the
REM as evidencing their intent to be bound to the RH.
Different than the
plaintiff in Doe, Plaintiff points to no discussions or actions outside the
documents to show the Parties manifested an intent to be bound. Although Doe
"is instructive on the issue of whether there exists a written contract
sufficient to overcome sovereign immunity" in general (Resp. to Mot. for Summ.
J., at 26), it does not require the Court to find the Parties intended to be
bound to the RH.
46
1. The REM as Part of the RH
Plaintiff argues that the RH is a valid contract capable of
waiving Defendant's sovereign immunity because it contains all the
necessary terms of a contract, is signed by all parties, and is in
writing.
(Resp. to Mot. for Summ. J., at 21-24.)
The Court
focuses on whether the Parties, as argued by Plaintiff, showed
their intent to be bound to the RH by signing it.
Plaintiff argues that the RH is signed by virtue of Plaintiff
and Dr. Ferguson signing the REM.
(Id. at 24.)
As an initial
matter, the Court is unable to verify the authenticity of the RH.
Plaintiff cites the Affidavit of Dr. Hanes as authenticating the
entire RH.
(Id. at 25 (''Here, unlike the handbook in Barnes, the
[RH] is authenticated.
See Exhibit 2 to Dft's MSJ, Affidavit of
Dr. Phillip[] Hanes, at SI 7.").)
authenticate
therein.
the
entire
RH,
Dr. Hanes, however, did not
only the
(Dr. Hanes's Aff., SI 7.)
Code
of
Conduct
policy
Specifically, Dr. Hanes stated,
"I have reviewed the Code of Conduct policy contained in Exhibit
1 attached to this affidavit, and it is a true and accurate copy
of the Code of Conduct policy in the [RH] at the time that the
Plaintiff, Dr. Billy Laun, was a resident in the OMFS program."
(Id.)
Even
assuming
the
entire
Plaintiff's argument fails.
RH
has
been
authenticated.
Plaintiff states that the REM is the
47
last section
of the
RH
and
because
Plaintiff
and
Dr.
Ferguson
signed the last page of the REM, they signed the last page of the
RH.
(Resp. to Mot. for Summ. J., at 24.)
Plaintiff seems to argue
that by signing the last page of the RH, the Parties intended for
their signatures to bind them to the entire RH.
(See id. at 24.)
Given what is in the record, the Court cannot accept this argument.
The Table of Contents in the RH provided to the Court sites
to
the ''OMFS
Resident
Expectations" as
beginning on ^^page 103." (RH, at 15.)
being
within
the
RH
However, the OMFS Resident
Expectations within the RH in the record is not identical to the
REM Plaintiff and Dr. Ferguson signed.
with REM, at 20-30.)
includes
different
within the RH.
(Compare RH, at 114-126,
The signed REM lacks page numbers and
terms
than
the
OMFS
Resident
Expectations
There is no evidence in the record that the REM
Plaintiff and Dr. Ferguson signed was part of or the last page of
the RH.
Thus, there is insufficient evidence for the Court to
accept that the Parties signed the entire RH by signing the REM.
2. The REM as Separate from the RH
a. Contemporaneous Writings
It is true that ''[a] written contract can consist of multiple
documents 'as long as all the necessary terms are contained in
signed contemporaneous writings.'"
of
Ga.
V.
Winter,
771
S.E.2d
Bd. of Regents of Univ. Sys.
201,
205-06
(Ga.
Ct.
App.
2015), overruled on other grounds by Rivera, 784 S.E.2d 775; see
48
also Bajcer, 314 S.E.2d at 876.
Broken down, the contemporaneous
writing rule contains three requirements.
must be signed.
First, the writings
LaFarqe Bldg. Materials, Inc. v. Pratt, 706 S.E.2d
131, 135 (Ga. Ct. App. 2011) (finding ^'the contemporaneous writing
rule inapplicable" because the second document was ^^unsigned").
Second,
the
writings
must
be
contemporaneous.
Writings
are
contemporaneous when they are ^^executed at the same time and in
the
course
of
the
same
transaction."
Id.
Contemporaneous,
however, does not require ^^perfect or absolute coincidence in point
of time.
One thing is contemporaneous with a given transaction
when it is so related in point of time as reasonably to be said to
be a part of such transaction."
Dabbs v. Key Equip. Fin., Inc.,
694 S.E.2d 161, 165 (Ga. Ct. App. 2010).
Third, the party seeking
to introduce the signed contemporaneous writing must show that it
is necessary to complete the signed document.
White House Inn &
Suites, Inc. v. City of Warm Springs, 676 S.E.2d 178, 179 (Ga.
2009).
The point of allowing the parties to introduce signed
contemporaneous
writings
is
^^to
provide
necessary
terms
not
contained in the document at issue, or to correct obvious errors
in the document at issue."
Id. (citing O.C.G.A. § 24-6-3(a)).
^^However, the contemporaneously executed document cannot be used
to add to an agreement a representation or warranty that is not
there."
Id. at 179-80.
49
Plaintiff failed to introduce enough evidence for the Court
to find the first two requirements have been met.
First, as
discussed above, there is insufficient evidence to show the RH is
signed.
Thus, the contemporaneous writing rule is inapplicable.
Second, Plaintiff failed to point to evidence as to when, if ever,
the Parties assented to the RH.
Although Plaintiff does not have
to show the documents were executed at the same time, determining
whether a writing is contemporaneous requires knowing when the
writings were executed.
Without this information, the Court is
unable to determine if the RH could be considered a contemporaneous
writing.
Turning to the third requirement. Plaintiff fails to argue
that the REM is missing necessary terms or is ambiguous in any
way.
Plaintiff argues the RH and REM make up a binding contract
because the REM ''is signed by all parties and references the [RH]
containing all the necessary terms of residency."
for Summ. J., at 27.)
(Resp. to Mot.
The RH covers similar topics as the REM,
however, that does not mean the REM contains insufficient terms.
See White House Inn & Suites, 676 S.E.2d at 179-80 (finding the
contemporaneously executed easement burdening the land that the
fee simple warranty deed covered could not be examined because
"[t]he
easement,
though
executed
contemporaneously
with
the
warranty deeds, cannot be used to burden the warranty deeds with
a restrictive use not contained therein, and the trial court did
50
not err in so ruling").
Plaintiff has failed to point to how the
terms in the REM are insufficient or ambiguous requiring the Court
to examine a contemporaneous agreement.
See Bulford v. Verizon
Bus. Network Servs.^ Inc., 970 F. Supp. 2d 1363, 1371 (N.D. Ga.
2013) (declining to consider the contemporaneous agreement because
"the [pjlaintiff is not trying to explain an ambiguity in the
[agreement] [but] is trying to add to it") (applying Georgia law),
aff'd, 564 F. App'x 449 (11th Cir. 2014).
Thus, the Court may not
examine the RH as a contemporaneous writing.
It
is
true
that
the
REM
references
the
RH,
however,
the
references are limited to the three sections in the REM discussing
the leave policy.
Although these references may be found, as
discussed below, to incorporate part or all of the RH into the
REM, the references do not show either that the REM on its own
contains
insufficient
terms
or
that
the
terms
are
ambiguous.
Furthermore, the references to the RH in no way relate to the RH's
Code of Conduct section.
Thus, even if the Court looked to the RH
as a contemporaneously signed writing to explain or supplement the
REM, there is no argument that the explanation or supplementation
would extend beyond examining the leave policy section of the RH.
51
b. Incorporating Terms
Finally, Plaintiff argues the REM incorporated the entire
RH.^®
(Resp. to Mot. for Suimm. J., at 27.)
As discussed above,
the leave policy sections of the REM refer to the RH.
If the Court
were interpreting a breach of contract claim as to the leave
policies applying to Plaintiff, the Court would be empowered to
examine the RH's leave policy.
Here, however. Plaintiff is arguing
the
in
Code
of
Conduct
section
the
RH
was
violated.
Thus,
Plaintiff must show that a reasonable person could find that the
REM incorporated the entire RH or, at the very least, the Code of
Conduct section therein.
The Code of Conduct section in the REM does not refer to the
RH. Only the leave policy sections reference the RH. It is clear,
then, that when the Parties intended to include relevant sections
of the RH as part of the REM, they noted that.
For the reasons
herein, the Court finds that the REM does not incorporate the
entire RH or the Code of Conduct section therein.
Having found that neither the RH nor the RH's Code of Conduct
section is a written contract between the Parties, Defendant is
Plaintiff also argues the reverse, that the RH incorporated the REM. (Resp.
to Mot. for Summ. J., at 24.) The Court already decided that the RH itself is
not a binding contract. Without showing that the RH is a contract, regardless
of the binding nature of the REM, Plaintiff's argument cannot prevail. See
Bulford, 970 F. Supp. 2d at 1371 (finding that it was immaterial whether a
letter referenced a valid contract because the question is whether the contract
incorporated the letter).
52
entitled to sovereign immunity as to Plaintiff's breach of contract
claim.
IV.
CONCLUSION
For the foregoing reasons,
judgment
(Doc.
21)
is
Defendant's motion for summary
GRANTED
IN
PART
and
DENIED
IN
PART.
Defendant's motion is granted as to Plaintiff's procedural due
process, disparate treatment, and breach
Defendant's
motion
accommodate claim.
is
denied
as
to
of contract claims.
Plaintiff's
failure
to
The sole remaining claim. Plaintiff's failure
to accommodate claim, shall proceed to trial in due course.
ORDER
ENTERED
at
Augusta,
Georgia.^^—^this
day
September, 2019.
J. R^NDAJpHALL, «HIEF JUDGE
UNITED STATES DISTRICT COURT
DISTRICT OF GEORGIA
53
of
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