# Salamone v. Central Piedmont Community College

> District Court, W.D. North Carolina · February 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10255491

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** February 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10255491

## How later opinions describe it (automated extraction)

- holding that an essential function of an ADA plaintiff's job was to work under her assigned supervisor
- 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

## Opinion text

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 □□

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10255491. Public record. Not legal advice.