Dansby-Giles v. Jackson State University et al

Filing 89

Memorandum Opinion and Order denying 79 MOTION for Summary Judgment of JSU as to plaintiff's failure to accommodate claim, otherwise said motion is granted. Signed by District Judge Tom S. Lee on 11/19/12 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DR. GLORIA DANSBY-GILES
VS.

PLAINTIFF
CIVIL ACTION NO. 3:10CV214TSL-FKB

JACKSON STATE UNIVERSITY

DEFENDANT

MEMORANDUM OPINION AND ORDER
In a prior opinion entered by the court on March 31, 2011,
the court set forth plaintiff Dr. Gloria Dansby-Giles’ history of
litigation against Jackson State University (JSU), her former
employer, and the court described the claims she brought in this,
her third lawsuit against JSU.

Now, after two motions by JSU to

dismiss or for summary judgment, plaintiff’s claims which remain
pending at this time are for sex discrimination under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
disability discrimination and retaliation under the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a).

This cause is presently before

the court on another motion for summary judgment by JSU.
Plaintiff has responded to the motion and the court, having
considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes the motion should
be granted in part and denied in part, as follows.
Plaintiff contends she was discriminated against on account
of her gender and her alleged disability, and in retaliation for

her complaints of disability discrimination, when JSU denied her
the opportunity to apply for or be considered for certain
coordinator positions within JSU’s Department of School, Community
and Rehabilitation Counseling (SCRC), in which she is employed as
a tenured professor.

To succeed on any of these claims, plaintiff

must establish a prima facie case of discrimination/retaliation.
Plaintiff’s prima facie claim of gender discrimination requires
proof that (1) she is a member of a protected class; (2) she was
qualified for the position; (3) despite her qualification, she
suffered an adverse employment decision made by defendant; and (4)
a male was selected for the position.

See Smith v. Potter, 629 F.

Supp. 2d 644, 650 (S.D. Miss. 2009) (internal citations omitted).
To establish a prima facie case of disability discrimination,
plaintiff is required to show that (1) she is disabled; (2) she
was nonetheless qualified to do the job; (3) an adverse employment
action was taken against her; and (4) a non-disabled employee was
selected for the position.
286 (5th Cir. 2001).

See Aldrup v. Caldera, 274 F.3d 282,

To establish a prima facie case of

retaliation under the Rehabilitation Act, plaintiff must
demonstrate that (1) she engaged in protected activity; (2) she
was subject to an adverse employment action; and (3) there is a
causal link between the protected activity and the adverse
employment action.

Hernandez v. Yellow Transp., Inc., 670 F.3d

644, 657 (5th Cir. 2012).
2

For discrimination claims, “[a]dverse employment actions
include only ultimate employment decisions such as hiring,
granting leave, discharging, promoting or compensating.”

Green v.

Adm'rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)).
In the retaliation context, “[m]aterially adverse actions are not
limited to ultimate employment decisions but include any actions
that would dissuade a reasonable employee from exercising his
rights under the [Rehabilitation Act].”

Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2409, 165 L. Ed.
2d 345 (2006).

That is, an employee suffers an “adverse

employment action” if “a reasonable employee would have found the
challenged action materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”

Id. at 61-67, 126 S. Ct.

2405.
Plaintiff has identified five coordinator positions for which
she was not selected or appointed, three of which were filled by
males and all of which were filled by non-disabled persons who did
not complain of disability discrimination.

However, the evidence

establishes that plaintiff was not qualified for one of the
coordinator positions, that of Coordinator of Rehabilitation
Counseling, and that her non-selection for the remaining
coordinator positions did not constitute an adverse employment
action.
3

According to the deposition testimony of Dr. Daniel Watkins,
Dean of the College of Education and Human Development at JSU and
JSU’s Rule 30(b)(6) designee, JSU and the College of Education and
Human Development recognize only one coordinator in the SCRC
Department, and that is the Coordinator of Rehabilitation
Counseling, which position is held by Dr. Dion Porter, who was
selected for the position when plaintiff’s husband, Dr. Frank
Giles, stepped down from the post in November or December, 2006.
Dr. Watkins explained that the published criteria for the position
included a terminal degree in Rehabilitation Counseling, and at
the time of Dr. Porter’s selection for the position, only three
employees in the SCRC Department held the required degree, Dr.
Frank Giles, Department Chair Dr. Jean Farish and Dr. Porter.

Dr.

Porter was thus the only one available within the department who
possessed the necessary qualifications for the job.

Although

effectively plaintiff admitted in her deposition that she was not
meet the requirements for the Coordinator of Rehabilitation
Counseling position, she now argues in response to JSU’s motion
that she only conceded she lacked the necessary qualifications
because she believed there were actually published criteria for
the position and has only recently come to learn that, in fact,
there were no such criteria. However, Dr. Watkins testified that
based on the only job description for the position that exists, a
terminal degree in Rehabilitation Counseling is a requirement for
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the position; and plaintiff admittedly did not possess such
degree.
Plaintiff complains that she was not considered or selected
for any of four other coordinator positions in the SCRC
Department, including Counseling Laboratory Coordinator, filled by
Dr. Rannie Lewis; Coordinator of the Specialist Program, filled by
Dr. Nanolla Yazdini; Coordinator of School Counseling, filled by
Ronica Arnold; and Coordinator of Community
Dr. Regina Felts-McMurtery.

Counseling, filled by

However, her non-selection for these

positions was not an adverse employment action for purposes of her
discrimination claims, as non-selection to the positions did not
deny her a promotion or compensation; and neither could her nonselection for these positions reasonably be found to be a
“materially adverse” employment action as required for her
retaliation claim.
Dr. Watkins explained in his testimony that these four
positions about which plaintiff complains are not recognized by
JSU as paid positions and are instead positions created or
established by and within the SCRC Department as part of that
department’s organizational structure.

He maintained that while

persons within a department may choose how to organize their
department and may choose to denominate certain persons as
coordinators to reflect their assumed and/or assigned duties,
nevertheless, from JSU’s perspective, Dr. Porter is the only bona
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fide coordinator in the SCRC Department.

He further maintained

that there is no compensation associated with any of the other
supposed coordinator positions, either directly or indirectly.
Plaintiff has submitted an affidavit in which she declares
that “[u]pon reviewing the documents we obtained in discovery from
JSU it certainly appears that those persons who received the
coordinator positions ... received financial benefits.”

But this

is nothing more than speculation and is contradicted by Dr.
Watkin’s testimony that the positions did not involve remuneration
of any sort.

Plaintiff posits that while coordinators may not

command a higher salary solely by virtue of their positions as
coordinators, there is still a financial benefit in that
coordinators have access to and are allowed to have an “overload”
of students, for which they are compensated in addition to their
base salary.

However, she has offered no evidence to support this

assertion, and Dr. Watkins flatly denied that being a coordinator
gives the professor access to more students.1
Plaintiff finally argues that “one of the advantages of being
a coordinator is that the selection enhanced one’s Vita, one’s
stature, contributed to a favorable annual evaluation, and made
1

Dr. Watkins stated unequivocally, “[T]he coordinators
receive no pay for the work that they’re doing. They receive no
additional monies for having that designation, and I just don’t
see how [plaintiff] would have lost money [by not] obtaining that
position. It’s not a monetary position.” When asked if the
designation gave the professor access to more students, he stated
“No, no. I disagree with that entirely.”
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salary increases more likely via promotion.”

Clearly, however,

the connection plaintiff attempts to draw between the coordinator
position (or title) and the potential for financial (or other)
reward is far too tenuous to support her claim that the denial of
the position could reasonably be found to be a materially adverse
employment action, much less an ultimately employment decision.
Certainly, there is no evidence either that plaintiff’s own
evaluations suffered in the least as a result of her not being
appointed as a coordinator.

On the contrary, plaintiff points out

that she has consistently received high marks on her annual
evaluations, and JSU points out that she has consistently received
the highest salary increases in the SCRC Department.

See

Hernandez v. Napolitano., No. EP–10–CV–480–KC, 2012 WL 641033, 12
(W.D. Tex. Feb. 27, 2012) (finding no materially adverse
employment action where there was no change in the plaintiff’s
“job title, grade, salary, or benefits, and there [was] no
evidence that Plaintiff has suffered a diminution in prestige”)
(citing Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 332–33 (5th
Cir. 2009) (holding that a significantly increased workload due to
a reassignment was not an adverse employment action because the
reassignment did not affect “her job title, grade, hours, salary,
or benefits .... and there is no evidence that she suffered a
diminution in prestige or change in standing among her
co-workers”)).

For these reasons, the court concludes that
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defendant is entitled to summary judgment on plaintiff’s claims of
gender discrimination, disability discrimination and retaliation
based on her non-selection as coordinator.
Plaintiff’s remaining claim is for failure to accommodate her
known disability.

The Rehabilitation Act, which incorporates the

standards of the Americans with Disabilities Act, prohibits
disability discrimination, which includes “not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee ....”

42 U.S.C. § 12112(b)(5)(A)

(prohibiting an employer's failure to reasonably accommodate an
employee under the ADA); Delano–Pyle v. Victoria Co., 302 F.3d
567, 574 (5th Cir.2002) (“remedies, procedures and rights
available under the [Rehabilitation Act] are also accessible under
the ADA”).

To prevail on a claim of discrimination based on

failure to accommodate a disability, the plaintiff must show that
(1) the employer is covered by the statute; (2) she is an
individual with a disability; (3) she can perform the essential
functions of the job with or without reasonable accommodation; and
(4) the employer had notice of the disability and failed to
provide accommodation.

Mzyk v. North East Indep. Sch. Dist., 397

Fed. Appx. 13, 16 n.3, 2010 WL 3926853, 2 n.3 (5th Cir. 2010)
(citations omitted).

The plaintiff has the burden to show that

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the employer failed to implement a reasonable accommodation.

Riel

v. Elec. Data Sys. Corp., 99 F.3d 678, 682 (5th Cir. 1996).
On a claim for failure to accommodate,
[t]he employee also has the burden to request a
reasonable accommodation. Loulseged v. Akzo Nobel Inc.,
178 F.3d 731, 735 n.4 (5th Cir. 1999). Unless the
employee's disability, resulting limitation, and
necessary reasonable accommodations are obvious, the
employee has the burden to “specifically identify the
disability and resulting limitations, and to suggest the
reasonable accommodations.” [Griffin v. United Parcel
Service, Inc., 661 F.3d 216, 224 (5th Cir. 2011) (quoting
E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d
606, 621 (5th Cir. 2009)). The employer is obligated to
engage in an interactive process—a meaningful dialogue
with the employee to find the best means of
accommodating the disability—once the employee has
satisfied this initial burden. Id.; Chevron Phillips
Chem. Co., LP, 570 F.3d at 622. The employer is
required to engage in the interactive process in good
faith. Chevron Phillips Chem. Co., LP, 570 F.3d at 622;
Loulseged, 178 F.3d at 736.
Sapp v. Potter, No. 1:07–cv–00650, 2012 WL 3890259, 16-17 (E.D.
Tex. July 26, 2012).
Plaintiff argues that she has a disability, that JSU was at
all times aware of her disability, that she made repeated requests
for accommodations, and that JSU failed to engage in good faith in
the interactive process, as a result of which JSU failed to
provide her reasonable accommodations.

In its motion for summary

judgment, JSU first states that it “does not concede that
Plaintiff has established, with the specificity required, that she
is disabled under the Rehabilitation Act....”

However, plaintiff

has submitted medical and vocational evidence which tends to show
9

that she is limited in her ability to walk, climb or stand for
long periods of time, and the ability to use her hands.

“An

individual with a disability is any person who (1) has a physical
or mental impairment which ‘substantially limits one or more of
such person's major life activities'; (2) has a ‘record’ of such
an impairment; or (3) is ‘regarded’ as having such an impairment.”
Hileman v. City of Dallas, Tex., 115 F.3d 353, 353 (5th Cir. 1997)
(quoting 29 U.S.C. § 706(8)(B)); 42 U.S.C. § 12102(1).

Major life

activities include “caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.”

42 U.S.C. § 12102(2)(A).

There is thus at least a question of fact as to whether plaintiff
has a disability.2

JSU does not deny that plaintiff has requested

2

Plaintiff seems to be of the view that this court has
previously found that she has a disability. To be clear, this
court has not found and does not now find that plaintiff has or
has had a disability. In its prior opinion, the court stated only
that "plaintiff alleged (in her first lawsuit) that as a result of
a number of health conditions that had arisen in 2003 and 2004
(and more specifically, a condition with her hands and wrists, and
a foot condition which prevented her from climbing stairs), she
was a qualified person with a disability under the ADA...."; that
plaintiff filed a second lawsuit "again complaining that although
she had informed JSU and provided documentation substantiating her
claim that she is a qualified person with a disability under the
ADA, JSU had failed and refused to provide her reasonable and
feasible accommodation for her known disability...."; and that in
this, her third lawsuit, "[p]laintiff alleges she has had problems
with her hands and wrists since April 2004 and with her feet since
September 2004, and that she has continuously suffered from the
impairments causing her disability since 2005."
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accommodations.

And while it appears to take the position that it

has provided some of the accommodations she has requested, or has
at least made a good faith effort to do so, it does not purport to
have provided all the requested accommodations (and plaintiff
clearly contends it has not done so), nor does it explain why it
has failed to do so.

Under the circumstances, the court is unable

to conclude that JSU has demonstrated that it is entitled to
summary judgment on plaintiff’s failure to accommodate claim.3
Its motion will thus be denied as to this claim.
Based on the foregoing, it is ordered that JSU’s motion for
summary judgment is denied as to plaintiff’s failure to
accommodate claim and is otherwise granted.
SO ORDERED this 19th day of November, 2012.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

3

As to accommodations which JSU has provided, plaintiff
appears to contend that since JSU has not formally acknowledged
her disability and her entitlement to such accommodations under
the law, then the purported “accommodations” do not qualify as
“accommodations” required by the Rehabilitation Act since JSU
could take them away at its whim. Plaintiff has offered no
authority for this position. There is no requirement that JSU
must have admitted that plaintiff has a disability before it can
be found to have accommodated her claimed disability.
11