Lee-Thomas v. Prince George's Co. Board of Education et al
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 6/26/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HOPE E. LEE-THOMAS
Civil Action No. DKC 15-2010
PRINCE GEORGE’S COUNTY PUBLIC
SCHOOLS, et al.
Presently pending and ready for resolution is the motion
for summary judgment filed by Defendant Board of Education of
Prince George’s County (“Defendant” or “the Board”).
The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, the motion for summary judgment will
Plaintiff Hope E. Lee-Thomas (“Plaintiff”) suffers from a
hearing impairment, chronic vertigo, and carpal tunnel syndrome.
(ECF No. 41-2, at 23, 25).
She has been a Paraprofessional at
Andrew Jackson Academy, a school in the Prince George’s County
Public Schools system (“PGCPS”), since March 25, 2014.
41-8, at 1-2).
Prior to her current placement, Plaintiff had
Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
worked for Defendant at other PGCPS schools and had previously
(ECF No. 43, at 3).
On May 19, 2014, Plaintiff filed a formal request for a
(ECF No. 41-2, at 21-24).
requests are referred to as “4172” requests within PGCPS because
the Board’s processes related to disability accommodations are
(See id. at 14).
In her 4172 request, Plaintiff asked
for: (1) an upright support chair, (2) handrails in both adult
classroom, (4) a portable loop system in her classroom, (5) a
American Sign Language (“ASL”) interpreter or a Communications
Access Realtime Translation (“CART”) system for any meetings,
programs, or workshops held outside of these two rooms.
Opportunity (“EEO”) Compliance Officer, responded by including
Plaintiff on an email to another PGCPS employee asking him to
set a time to “fit” her for an ergonomic chair.
(ECF No. 43-1,
Defendant did not contact Plaintiff about any of the
other requested accommodations before the end of the school year
on June 18.
(ECF Nos. 41-2, at 37; 43, at 4; 44-1, at 3).
discrimination with the Equal Employment Opportunity Commission
(“EEOC”), which was received on July 16.
(ECF No. 41-3).
same month, Amana Simmons had taken over as the EEO Compliance
Officer for PGCPS.
(ECF No. 41-2, at 1).
On the same day that
Plaintiff filed her EEOC charge, Ms. Simmons contacted Plaintiff
to determine whether she had received the accommodations she
sought in her 4172 request.
(Id. at 3).
Plaintiff notified Ms.
Simmons of her pending EEOC charge, and no further action was
taken during the summer vacation to provide Plaintiff with the
When she returned to work for the new school year on August
refused to meet without her union representative, who was out of
town for the week.
The next day, Plaintiff notified Ms.
Simmons that she was having trouble understanding the material
presented during a Professional Development workshop held in the
multi-purpose room, which had not been outfitted with a portable
Defendant had provided two ASL interpreters for the workshop.
Plaintiff, however, is not fluent in ASL and relies on reading
the lips of interpreters, and the interpreters at the training
interpreter was present at a training on August 20, Plaintiff’s
(Id. at 30-36).
In an email dated August 21, Ms. Simmons told Plaintiff
that she had obtained Plaintiff’s classroom assignment from Dr.
installed in her classroom, (2) Dr. Richardson had relieved her
of the obligation to attend meetings in the multi-purpose room,
telephone had blinking lights, (4) there was already a handrail
installed in the bathroom closest to her classroom, (5) Ms.
Simmons was submitting a work order to have a handrail installed
in one of the bathrooms in the office, and (6) they were still
determining the status and location of the ergonomic chair that
Plaintiff had been fitted for in May.
(Id. at 31).
and Ms. Simmons met to follow up on these accommodations on
telephone, that the portable loop system would be installed in
her classroom, and that a new ergonomic chair would be ordered
Although a handrail had already been installed
Defendant would install a handrail in the men’s faculty bathroom
Plaintiff’s requests to have a loop system installed in the
multipurpose room or to use CART were still “being evaluated”
after the meeting.
On September 9, the loop system was
installed in Plaintiff’s classroom.
(Id. at 39).
21, she received the ergonomic chair.
(ECF No. 43-2, at 3).
On January 29, 2015, the EEOC issued Plaintiff a right to
sue notice on her 2014 charge.
(ECF No. 41-4).
On February 27,
Plaintiff filed an updated charge with the EEOC.
(ECF No. 41-
Where her 2014 charge complained only about her requests
telephone (ECF No. 41-3), Plaintiff’s 2015 charge also included
interpreter, CART, and a portable loop system for the multipurpose room (ECF No. 41-5).
The EEOC responded by reopening
its investigation and revoking its right to sue notice.
On April 20, the EEOC issued a right to sue notice
for Plaintiff’s updated charge.
(ECF No. 41-7).
(ECF No. 41-2, at 5, 40).
As part of these
building engineers had advised her that it was not feasible to
install a portable loop system in the multi-purpose room.
Instead, ASL interpreters would be provided if and when
meetings” in that room.
Ms. Simmons further stated that
CART was still being evaluated.
Plaintiff met with Ms.
Simmons again on June 16 and recapped these issues before the
(Id. at 6-7).
Plaintiff filed her complaint in this court on July 9,
2015, alleging violations of the Rehabilitation Act, 29 U.S.C. §
791, et seq., and the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101, et seq.
(ECF No. 1 ¶¶ 14-17).
Plaintiff responded and filed an amended complaint.
16; 16-1; 20).
Defendant consented to Plaintiff amending her
complaint, withdrew its motion to dismiss, and filed its answer
on December 7.
(ECF Nos. 17; 18).
After discovery, Defendant
filed the instant motion for summary judgment.
(ECF No. 41).
Plaintiff responded (ECF No. 43), and Defendant replied (ECF No.
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
dispute about a material fact is genuine “if the evidence is
undertaking this inquiry, a court must view the facts and the
favorable to the party opposing the motion,” Matsushita Elec.
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005), but a “party cannot create a genuine dispute
2001) (citation omitted).
To prevail on a motion for summary judgment, the moving
party generally bears the burden of showing that there is no
genuine dispute as to any material fact.
No genuine dispute of
material fact exists, however, if the nonmoving party fails to
make a sufficient showing on an essential element of his case as
to which he would have the burden of proof.
Celotex, 477 U.S.
Therefore, on those issues on which the nonmoving
confront the summary judgment motion with an “affidavit or other
evidentiary showing” demonstrating that there is a genuine issue
See Ross v. Early, 899 F.Supp.2d 415, 420 (D.Md.
2012), aff’d, 746 F.3d 546 (4th Cir. 2014).
Claims in Plaintiff’s Complaint
before the start of the 2015-16 school year, and only alleged
filed in December 2015, makes no reference to any events that
occurred after her original complaint was filed.
(See ECF No.
Despite the temporal limits of Plaintiff’s complaints, the
It is well established that a plaintiff “is bound by the
allegations contained in [her] complaint and cannot, through the
use of motion briefs, amend the complaint.”
Zachair, Ltd. V.
Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) aff’d, 141 F.3d
“[u]nder Fed.R.Civ.P. 15(d), a plaintiff must move the court for
leave to file a supplemental pleading setting forth occurrences
which happen after” the suit is brought.
Skipper v. Giant
Plaintiff’s amended complaint also appears to have been
prompted by Defendant’s motion to dismiss on res judicata
grounds. (See ECF Nos. 13; 16). If anything, then, Plaintiff’s
amended complaint sought to narrow, rather than to expand, the
timeframe of her allegations.
Food, Inc., 187 F.Supp.2d 490, 493 n.2 (D.Md. 2002) (citing
Young-Henderson v. Spartanburg Area Mental Health Ctr., 945 F.2d
770, 775 (4th Cir. 1991)).
Accordingly, events occurring after
July 9, 2015, are not properly before the court, and will not be
considered in adjudicating the pending motion.
Similarly, Plaintiff’s arguments related to static from the
portable loop system in her 2014-15 classroom have not been
identifies the need for handrails, an upright chair, an ASL
interpreter, an amplified telephone, and a portable loop system
for the multi-purpose room, but omits any mention of issues with
the loop system in her classroom.
(ECF No. 20 ¶ 11).
in both her original complaint and her updated EEOC charge,
Plaintiff specifically stated that Defendant had accommodated
her disability in the classroom, without mention of any issues
with the loop system in that room.
(ECF Nos. 1 ¶ 9; 41-5, at
Because Plaintiff’s allegations as to the effectiveness of
complaint, arguments related to that system also will not be
Failure to Accommodate
Plaintiff brings two claims, one for violation of Section
501 of the Rehabilitation Act and one for violation of the ADA.
(ECF No. 20 ¶¶ 16-24).3
The ADA prohibits discrimination against
“a qualified individual on the basis of disability.”
limitations of an otherwise qualified individual.”
42 U.S.C. §
To establish a prima facie case for a failureclaim,
qualifies as an ‘individual with a disability’ . . . ; (2) the
[defendant] had notice of her disability; (3) she could perform
Reyazzudin v. Montgomery Cty., Md.,
789 F.3d 407, 414 (4th Cir. 2015) (citing 29 U.S.C. § 794(a);
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)).
The standards used to evaluate claims brought under the
Rehabilitation Act are the same as those brought under the ADA.
29 U.S.C. § 794(d) (“The standards used to determine whether
this section [of the Rehabilitation Act] has been violated in a
complaint alleging employment discrimination under this section
shall be the standards applied under title I of the Americans
with Disabilities Act of 1990 and the provisions of sections 501
through 504, and 510, of the Americans with Disabilities Act of
1990.”); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264
n.9 (4th Cir. 1995) (“Because the language of the two statutes is
substantially the same, we apply the same analysis to both.”).
There are “three distinct grounds for relief: (1) intentional
discrimination or disparate treatment; (2) disparate impact; and
(3) failure to make reasonable accommodations.” A Helping Hand,
LLC v. Balt. Cty., Md., 515 F.3d 356, 362 (4th Cir. 2008).
Plaintiff brings her claims for a failure to accommodate.
reasonable accommodation, the House Report on the matter states:
requirement is best understood as a process
individual’s equal employment opportunity
The accommodation process
focuses on the needs of a particular
performance of a particular job because of a
physical or mental impairment.
. . .
Having identified one or more possible
accommodations, the [next] step is to assess
the reasonableness of each in terms of
reasonable accommodation should be effective
for the employee.
Factors to be considered
include the reliability of the accommodation
and whether it can be provided in a timely
. . . [A] reasonable accommodation
should provide a meaningful equal employment
Meaningful equal employment
opportunity means an opportunity to attain
available to nondisabled employees having
similar skills and abilities.
H.R. Rep. 101-485(II), as quoted in Bryant v. Better Business
Bureau of Greater Md., Inc., 923 F.Supp. 720, 736-37 (D.Md.
accommodation must be effective (i.e., it must address the jobrelated difficulties presented by the employee’s disability),
and it must allow the employee to attain an ‘equal’ level of
achievement, opportunity, and participation that a non-disabled
(quoting Fleetwood v. Harford Sys. Inc., 380 F.Supp.2d 688, 699
(D.Md. 2005)); see also Bryant, 923 F.Supp. at 736; 29 C.F.R.
pt. 1630, app. § 1630.9 (2014) (“The reasonable accommodation
that is required by this part should provide the individual with
employment opportunity means an opportunity to attain the same
level of performance, or to enjoy the same level of benefits and
similarly situated employee without a disability.”).
On the other hand, an employer “may reasonably accommodate
an employee without providing the exact accommodation that the
accommodation chosen by the employer need not be the “‘best’
accommodation possible, so long as it is sufficient to meet the
job-related needs of the individual being accommodated.”
C.F.R. §1630.9 app.; see also Corrigan v. Perry, 139 F.3d 888
(4th Cir. 1998) (unpublished table opinion).
Under the ADA, a
reasonable accommodation may include “making existing facilities
individuals with disabilities” or “job restructuring, part-time
or modified work schedules, reassignment to a vacant position,
training materials or policies.”
42 U.S.C. § 12111(9).
noted above, the employer has the “ultimate discretion to choose
between effective accommodations,” Reyazuddin, 789 F.3d at 41516, and a court goes too far when the effect of an injunction
disabilities, rather than put them on equal footing as intended
Md., 223 F.Supp.2d 699, 717 (D.Md. 2002).
Generally, whether a
provided accommodation constitutes a reasonable accommodation is
a question of fact.
Pandazides v. Va. Bd. of Educ., 13 F.3d
823, 833 (4th Cir. 1994); see also Reyazuddin, 789 F.3d at 416
(citing Pandazides); Halpern v. Wake Forest Univ. Health Scis.,
669 F.3d 454, 464 (4th Cir. 2012) (noting that the “determination
of the reasonableness of a proposed modification is often factspecific”).
Defendant contends that it is entitled to summary judgment
(ECF No. 41-1, at 20).
Specifically, it argues
classroom where she worked, provided her an ergonomic chair,
installed handrails in the bathroom closest to her classroom,
provided Plaintiff with a flashing light telephone, relieved her
from any required meetings or duties in the multipurpose room,
and offered to provide an ASL interpreter as needed for meetings
or events that she sought to attend.
Plaintiff argues that Defendant has not provided her with
importance, distanced her from her peers, and prevented her from
administration of the school.
(Id.; ECF No. 43-2, at 5).
argues that the flashing light phone was not a satisfactory
accommodation because she could not see the blinking light if
she were turned away from the phone.
(Id. at 14).
states that not enough of the restrooms had handrails installed,
occasions because the supported toilets were in use by other
(Id. at 14-15; ECF No 43-2, at 1-2).
accommodations, forcing her to work without accommodations for
long periods of time.
(ECF No. 43, at 15-20).
She did not
receive her ergonomic chair, for instance, until November 21,
2014, more than six months after submitting her 4172 request on
Several of Defendant’s arguments rely on the theory that
Plaintiff’s “self-serving affidavit” is insufficient to create a
dispute of fact at the summary judgment stage.
5, 7, 18-19).
Defendant overstates the limitation on self-
(ECF No. 44, at
contradicts the affidavit, see Jeandron v. Bd. of Regents of
Univ. of Md., 510 F.App’x 223, 228 (4th Cir. 2013), where they
allegations, see Williams v. Giant Food Inc., 370 F.3d 423, 433
(4th Cir. 2000), or where a Plaintiff contradicts his own sworn
statements, see Sky Angel U.S., LLC v. Discovery Commc’ns, LLC,
28 F.Supp.3d 465, 484 n.6 (D.Md. 2014) (citing cases describing
the “sham affidavit” rule).
The general rule, however, remains
that a court should not weigh the credibility of testimony of
judgment stage, even if it is self-serving.
See Harris v. Mayor
& City Council of Balt., 429 F.App’x 195, 198 n.5 (4th Cir. 2011)
insufficient to defeat a motion for summary judgment so long as
the affidavit complies with the requirements of Fed.R.Civ.P. 56
and does not contradict one’s prior testimony); Pitter v. Cmty.
Imaging Partners, Inc., 735 F.Supp.2d 379, 391 (D.Md. 2010).
Therefore, Plaintiff’s affidavit must be considered.
Here, Defendant has clearly provided Plaintiff with several
differences between what Plaintiff received and what she asked
for – for example, handrails in one bathroom instead of two, a
phone with only a flashing light as opposed to a flashing light
and an amplifier, her chair being provided, but only after two
fittings and many months of waiting - seem minor.
however, must decide whether these accommodations removed the
barriers to equal employment opportunity in a timely manner.4
question also remains as to whether relieving Plaintiff from
duties in the multi-purpose room was a reasonable accommodation
ADA regulations provide that the employee and employer
should engage in “an informal, interactive process” in order to
“identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome
those limitations.” 29 C.F.R. § 1630.2(o)(3). The parties must
act in good faith in the interactive process.
Jacobs v. N.C.
Admin. Office of Courts, 780 F.3d 562, 581 (4th Cir. 2015). “A
party that obstructs or delays the interactive process is not
acting in good faith.” Allen v. City of Raleigh, 140 F.Supp.3d
Mecklenburg Bd. of Educ., 423 F.App’x 314, 323 (4
An employer cannot be found liable solely for a failure to
engage in the interactive process where it has provided a
Walter v. United Airlines, Inc., 232
F.3d 892 (4th Cir. 2000) (unpublished table opinion) (citing
Rehling v. City of Chi., 207 F.3d 1009, 1016 (7th Cir. 2000)).
It is inherent in the good-faith requirement, however, that the
interactive process may not be delayed unreasonably and without
progress, especially where, as with Plaintiff’s chair here, the
parties readily identified and agreed to the appropriate
accommodation, but Defendant delayed in providing it. To do so
may have been a failure to accommodate, if only for a limited
period of time.
that would allow her to attain “an ‘equal’ level of achievement,
opportunity, and participation that a non-disabled individual in
the same position would be able to achieve.”5
jury must decide whether the accommodations Defendant provided
constitute a reasonable accommodation, and Defendant’s motion
for summary judgment will be denied.
For the foregoing reasons, the motion for summary judgment
filed by Defendant Board of Education of Prince George’s County
will be denied.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
Defendant also avers that it offered ASL interpreters for
any programs or meetings upon request, but Plaintiff never made
such a request, which constitutes bad faith by Plaintiff in the
interactive process. (ECF No. 41-1, at 18).
“‘If an employer
engages in the interactive process with the employee in good
faith, for the purpose of discussing alternative reasonable
accommodations, but the employee fails to cooperate in the
process, then the employer cannot be held liable under the ADA
for failure to provide reasonable accommodations.’”
F.Supp.3d at 483 (quoting EEOC v. Kohl’s Dep’t Stores, Inc., 774
Although Plaintiff clearly
F.3d 127, 132 (1st Cir. 2014)).
preferred the installation of a loop system or the provision of
a CART system, she does not argue that an ASL interpreter who
mouthed the words would have been ineffective.
However, it is
unclear whether Defendant provided Plaintiff with this option
throughout the 2014-15 school year.
(See ECF No. 41-1, at 18
(“Following the June 16, 2015 interactive meeting . . . ,
Plaintiff had failed to cooperate with Ms. Simmons’ prior
requests to provide dates, times, and locations of PGCPS events
that Plaintiff wished to attend.”)).
judgment is not appropriate on the current record.
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