Salamone v. Central Piedmont Community College

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:18-CV-00298-GCM

DOREEN SALAMONE, )

)

Plaintiffs, )

)

v. )

) ORDER

CENTRAL PIEDMONT COMMUNITY )

COLLEGE, )

)

)

Defendant. )

)

THIS MATTER COMES before the Court on the Defendant’s Motion for Summary

Judgment (“Motion”) (Doc. No. 12). The Court, having carefully considered the briefs and

materials submitted in support of the Motion and in opposition thereto, and being otherwise fully

advised, finds and orders as follows:

I. FACTUAL BACKGROUND

Plaintiff, Doreen Salamone, worked as an instructor at Central Piedmont Community

College beginning in October 1996 until she was terminated in December 2017. (Doc. No. 12-1,

at 2; Doc. No. 14, at 2). Leading up to the termination, Plaintiff’s supervisor was Karen Summers,

and Ms. Summers’ supervisor was Kay Miller. (Doc. No. 12-1, at 3; Doc. No. 14, at 2). In 2014,

possibly as a result of a dispute over a noisy refrigerator, Plaintiff’s relationship with her

supervisors began to sour. (Doc. No. 12-1, at 3). On August 7, 2017, Plaintiff submitted a

reasonable accommodation request to Defendant which appears to have stemmed, in large part,

from her poor relationship with Ms. Summers and Ms. Miller. For example, Plaintiff alleged that

she had Post-Traumatic Stress Disorder (“PTSD”) which was triggered by her interactions with

“[Ms.] Summers and [Ms.] Miller.” (Doc. No. 14, at 2). According to Plaintiff, the PTSD impacted

her ability to (1) interact with others, (2) breathe, (3) work, (4) think, and (5) concentrate. (Doc.

No. 14, at 1). Plaintiff requested several possible accommodations, including assignment “to a

different supervisor independent . . . from” Ms. Miller’s influence. (Doc. No. 14-10, at 2).

Defendant denied Plaintiff’s request for accommodation. (Doc. No. 14, at 7). And, because

Defendant believed it was clear that Plaintiff could not continue in her current position, Defendant

offered Plaintiff three options: (1) job reassignment, (2) short-term disability, and (3) resignation.

(Doc. No. 12-1, at 19; Doc. No. 14, at 7). Plaintiff did not respond to Defendant’s offer, and

Defendant terminated her employment on December 5, 2017. (Doc. No. 12-1). Defendant’s

termination of Plaintiff and denial of her request for accommodation are the basis of Plaintiff’s

claims.

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(c), “summary judgment is proper ‘if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “party seeking

summary judgment always bears the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrates the absence of a genuine issue of material fact.” Id. at 323. Once the movant has met

the initial burden, the burden then shifts to the non-moving party to identify specific facts showing

there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986). In considering a motion for summary judgment, a Court views all evidence in the light

most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24

(4th Cir. 1990). However, “[t]he mere existence of a scintilla of evidence in support of the [non-

moving party’s] position will be insufficient; there must be evidence on which the jury could

reasonably find for the [non-moving party].” Id. at 252.

“If a party fails to properly support an assertion of fact or fails to properly address another

party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed.”

Fed. R. Civ. P. 56(e)(2). Further, where a party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the proof

at trial . . .[,] there can be no genuine issue as to [a] material fact, since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 322, 323 (citation and quotations omitted). It is with these

standards in mind that the Court considers the present matter.

III. DISCUSSION

Defendant moves for summary judgment against Plaintiff’s (1) disability discrimination

claim and (2) failure to accommodate claim. Because Plaintiff was not disabled and was not a

qualified individual for her position, the Court agrees.

A. Discrimination

“To establish a claim for disability discrimination under the ADA, a plaintiff must prove

(1) that she has a disability, (2) that she is a qualified individual for the employment in question,

and (3) that her employer discharged her (or took other adverse employment action) because of

her disability." Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015)

(citing EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)). Here, Defendants

allege that the Court should grant summary judgment against Plaintiff’s disability discrimination

claim for two reasons: (1) Plaintiff was not disabled, and (2) Plaintiff was not a qualified

individual.

1. Disability

First, we turn to Defendant’s argument that Plaintiff is not disabled. “Under the ADA, a

‘disability’ may take any of the following forms: (1) ‘a physical or mental impairment that

substantially limits one or more major life activities’ (the ‘actual-disability’ prong); (2) ‘a record

of such an impairment’ (the ‘record-of’ prong); or (3) ‘being regarded as having such an

impairment’ (the ‘regarded-as’ prong).” Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th

Cir. 2014) (citing 42 U.S.C. § 12102(1)) (internal quotations omitted). With regard to the “actual-

disability” prong, “to be substantially limited in the major life activity of working, . . . one must

be precluded from more than one type of job, a specialized job, or a particular job of choice. If

jobs utilizing an individual’s skill (but perhaps not his or her unique talents) are available, one is

not precluded from a substantial class of jobs.” Taylor v. Fed. Express Corp., 429 F.3d 461, 464

(4th Cir. 2005) (citing Sutton v. United Air Lines, 527 U.S. 471, at 491-92 (1992)). It follows that

“obtaining a new job is evidence that an impairment is not substantially limiting. Lewis v. Balt.

City Bd. of Sch. Comm'rs, 187 F. Supp. 3d 588, 598 (D. Md. 2016) (citing Pollard v. High's of

Baltimore, Inc., 281 F.3d 462, 468 (4th Cir. 2002).

Defendant argues that Plaintiff’s impairment (PTSD) did not substantially limit her ability

to work because the evidence establishes, at most, that Plaintiff is unable to work with specific co-

workers, not that she was “generally foreclosed from jobs utilizing her skill.” (Doc. No. 21-1, at

23) (citation and quotations omitted). Plaintiff responds that she “has an actual disability” because

she was being treated for depression, anxiety, and PTSD, and the reasonable accommodation

request she submitted to Defendant indicated that those impairments “affected . . . major life

activities” such as “interacting with others, breathing, working, thinking, and concentrating.” (Doc.

No. 14, at 12). “Based on that evidence,” Plaintiff concludes, she “was suffering from an actual

disability as defined by the ADAAA.” (Doc. No. 14, at 12).

However, Plaintiff’s reasonable accommodation request also indicated that the only job

function impacted by her impairments was “interacting with [Ms.] Summers and [Ms.] Miller.”

(Doc. No. 14-10, at 2). Thus, Plaintiff does not allege that she is unable to perform her work

generally; instead, she alleges only that she cannot work with her supervisors. Further illustrating

that fact, Plaintiff proposed, as a possible accommodation, that Defendant simply assign her to

different supervisors, suggesting that she was able to perform her work absent Ms. Summer and

Ms. Miller’s supervision. (Doc. No. 14-10, at 2). Because Plaintiff has failed to allege facts

showing that she was generally foreclosed from jobs utilizing her individual skills, Plaintiff has

failed to make a showing sufficient to establish that she is actually disabled. See Taylor, 429 F.3d

at 464; Rhodes v. Comcast Cable Communs. Mgmt., LLC, Civil Action No. GLR-14-1824, 2016

U.S. Dist. LEXIS 108898, at *24 (D. Md. Aug. 17, 2016) (holding that an ADA plaintiff was not

disabled where she only showed that she was unable “to work in a particular group” and where

she failed to show “that she was generally foreclosed from utilizing her skills”); Howell v. Holland,

Civil Action No. 4:13-cv-0295-BHH-TER, 2014 U.S. Dist. LEXIS 182306, at *19 (D.S.C. Aug.

12, 2014) (denying an ADA plaintiff’s claim where there was no evidence that the plaintiff’s

impairments prevented him from working in his profession and finding that it “strained credulity

to conclude that [the plaintiff was] substantially limited in the major life activity of working simply

because he [could not work with a specific co-worker]”); Weiler v. Household Fin. Corp., 101

F.3d 519, 525 (7th Cir. 1996) (Finding that where an ADA plaintiff was able to “do the same job

for another supervisor,” she was not disabled.).

Plaintiff also argues that in addition to being actually disabled, she was also regarded as

disabled. (Doc. No. 14, at 13). In support, she asserts that “[i]t is not disputed that [Plaintiff]

requested reasonable accommodation for her disability in August 2017.”1 However, evidence that

Plaintiff requested reasonable accommodation simply is not evidence that Defendant regarded her

as disabled. By arguing the contrary, Plaintiff asks the Court to hold, without citation to any

authority, that the very act of requesting accommodation satisfies one of the elements used to

evaluate those requests when they are denied. The Court declines to do so. See Davis v. District of

Columbia, 503 F. Supp. 2d 104 (D.D.C. 2007) (For purposes of summary judgment, perfunctory

and undeveloped arguments, and arguments that are unsupported by pertinent authority, are

waived.); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) ("It is not the obligation of this court

to research and construct legal arguments open to parties, especially when they are represented by

counsel, and we have warned that perfunctory and undeveloped arguments, and arguments

unsupported by pertinent authority, are waived.").

2. Qualified Individual

Second, we turn to Defendant’s argument that Plaintiff is not a qualified individual. A

qualified individual is defined as someone who, “with or without reasonable accommodation, can

1 Plaintiff also asserts the following:

It is also not disputed that [Plaintiff] was performing her job in an acceptable

fashion, and that she had not been recommended for discipline. [Plaintiff] attempted

to be accommodated by submitting the August 2017 reasonable accommodation

form to Paul Santos who then removed her from her position and indicated that she

would not be returned to that position.”

(Doc. No. 14, at 13). In addition to the fact that Plaintiff makes no citation to the record when

making those assertions, Plaintiff fails to explain how or why the facts that she performed

acceptably, she was not recommended for discipline, and she was removed from her position show

that she was regarded as disabled.

perform the essential functions of the employment position that such an individual holds or

desires.” Id. § 12111(8). Being able to work with one’s supervisor or co-workers is an essential

job function. See Gaul v. Lucent Technologies, 134 F.3d 576, 581 (3rd Cir. 1998) (holding that,

where an ADA plaintiff refused to work with a co-worker that allegedly caused him stress, the

plaintiff was not a qualified individual under the ADA); Wernick v. Federal Reserve Bank of New

York, 91 F.3d 379, 384 (2nd Cir. 1996) (holding that an essential function of an ADA plaintiff's

job was to work under her assigned supervisor); Prichard v. Dominguez, 2006 U.S. Dist. LEXIS

46607 (N.D. Fla. June 29, 2006) (holding that an ADA plaintiff who refused to perform an essential

function of her job—working with her supervisor—was not a “qualified individual with a

disability”).

Here, Plaintiff asserted, in her reasonable accommodation request, that interacting with her

supervisors, Ms. Summers and Ms. Miller, “affects [her] ability to perform job functions due to

severe anxiety and panic attacks.” (Doc. No. 14-10). Defendant argues that because Plaintiff

cannot work with her supervisors, she cannot perform an essential job junction. (Doc. No. 12-1, at

15). Defendant’s argument is clearly supported by the cases cited above, and, because Plaintiff

provides no response to that argument, the Court considers Defendant’s argument undisputed. See

Fed. R. Civ. P. 56(e)(2). Because Plaintiff has failed to establish both the first element (that she is

disabled) and the second element (that she is a qualified individual) of her disability discrimination

claim, the Court grants summary judgment against it. See Celotex, 477 U.S. at 322, 323.

B. Failure to Accommodate

To establish a claim for failure to accommodate under the ADA, a plaintiff must prove “(1)

that she was an individual who had a disability within the meaning of the statute; (2) that the

employer had notice of her disability; (3) that with reasonable accommodation she could perform

the essential functions of the position; and (4) that the employer refused to make such

contributions.” Jacobs, 780 F.3d at 579 (citing Wilson v. Dollar Gen, Corp., 717 F.3d 337, 345

(4th Cir. 2013)). The Court has already held that Plaintiff failed to show that she was disabled

under the ADA. See supra at 4-6. Because Plaintiff has failed to establish the existence of an

element essential to her failure to accommodate claim, summary judgment against that claim is

appropriate. See Celotex, 477 U.S. at 322, 323.

IV. CONCLUSION

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

Plaintiffs discrimination claim and Plaintiffs failure to accommodate claim is GRANTED.

Because no claims remain, this case is DISMISSED with prejudice.

SO ORDERED.

Signed: February 11, 2020

Graham C. Mullen cs

United States District Judge □□