Opinion
Case No. 0:19-cv-63067-KMM
2021-06-10
Linda CAMPBELL, Plaintiff, v. BOIES, SCHILLER, FLEXNER LLP, Defendant.
Michael A. Pizzi, Michael A Pizzi, Jr., P.A., Miami Lakes, FL, for Plaintiff. Ian M. Ross, Stumphauzer Foslid Sloman Ross & Kolaya, PLLC, Miami, FL, David T. Schur, Pro Hac Vice, Deborah P. Kelly, Pro Hac Vice, Manatt, Phelps & Phillips, LLP, for Defendant.
Michael A. Pizzi, Michael A Pizzi, Jr., P.A., Miami Lakes, FL, for Plaintiff.
Ian M. Ross, Stumphauzer Foslid Sloman Ross & Kolaya, PLLC, Miami, FL, David T. Schur, Pro Hac Vice, Deborah P. Kelly, Pro Hac Vice, Manatt, Phelps & Phillips, LLP, for Defendant.
ORDER
K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant Boies, Schiller, Flexner LLP's ("BSF" or "Defendant") Motion for Summary Judgment. ("Mot.") (ECF No. 30). Plaintiff Linda Campbell ("Campbell" or "Plaintiff") responded in opposition to the Motion. ("Resp.") (ECF No. 34). Defendant filed a reply. ("Reply") (ECF No. 37). The Motion is now ripe for review.
The undisputed facts are taken from Defendant's Statement of Material Facts, ("Def.’s 56.1") (ECF No. 31), Plaintiff's Response to Defendant's Statement of Material Facts, ("Pl.’s Resp. 56.1") (ECF No. 35), Defendant's Reply to Plaintiff's Statement of Material Facts, ("Def.’s Reply 56.1") (ECF No. 38), and a review of the corresponding record citations and exhibits.
BSF hired Campbell to work as a legal assistant for Joseph Schwartz ("Schwartz") in its Hollywood, Florida office in October 2007 after it acquired the firm at which she and Schwartz previously worked. Def.’s 56.1 ¶¶ 1–2; Pl.’s Resp. 56.1 ¶¶ 1–2. Charles Miller ("Miller") is the administrative partner of the Hollywood office, who makes all hiring and firing decisions for the office. Def.’s 56.1 ¶¶ 3–4; Pl.’s Resp. 56.1 ¶¶ 3–4. Winnie Pelletieri ("Pelletieri") is the office administrator for the Hollywood office. Def.’s 56.1 ¶ 5; Pl.’s Resp. 56.1 ¶ 5.
Plaintiff purportedly disputes these facts, see Pl.’s Resp. 56.1 ¶¶ 1–2, however, she cites no record evidence refuting them. On the contrary, she acknowledges that she worked for Schwartz. See ("Campbell Decl.") (ECF No. 31-4) ¶ 35(a) ("I worked for Joseph L. Schwartz, however, I also worked part-time in years prior to 2004."). Further, throughout her Response 56.1, Plaintiff attempts to create issues of material fact by citing to her declaration. See generally Campbell Decl. Defendant argues that Plaintiff's responses to its Statement of Material Facts are improper insofar as they rely on Campbell's "self-serving, unsupported declaration[.]" See Reply at 3–4 (arguing that Plaintiff's declaration "is not ‘evidence’ on summary judgment, and fails to create a genuine issue of material fact in the face of Miller's sworn testimony that he was the decisionmaker and did not know about her purported disability"). The Court partially agrees. To the extent Plaintiff's Resp. 56.1 alleges facts that are immaterial to the issues at hand, conclusory, or simply ad hominem attacks on BSF employees, see Pl.’s Resp. 56.1 ¶ 17("Pelletieri could not have asked for a transfer to another office since she was already fired from the Fort Lauderdale office and had a restraining order against her by a woman who worked there. That is a lie. She is a bully and that is her way of getting rid of me."), the Court will not expend valuable judicial resources resolving such factual disputes. See S.D. Fla. L.R. 56.1(a)(2) ("An opponent's Statement of Material Facts shall clearly challenge any purportedly material fact asserted by the movant that the opponent contends is genuinely in dispute. ") (emphasis added).
It is undisputed that on May 3, 2019, Campbell and Joe Witherspoon ("Witherspoon"), "a vendor who was washing cars at the time," got into a heated argument in the Hollywood office's parking lot. Def.’s 56.1 ¶¶ 8–9; Pl.’s Resp. 56.1 ¶¶ 8–9. The Parties dispute the exact details of the events that transpired during and immediately after the argument, but such details are immaterial and irrelevant to the merits of the instant Motion. See generally Def.’s 56.1; Pl.’s Resp. 56.1. Pertinently, the record shows that several BSF employees—Pelletieri, Brian Barry ("Barry"), and Kathie Hart ("Hart")—heard Campbell and Witherspoon yelling, went outside to investigate, and eventually intervened. Def.’s 56.1 ¶¶ 10–12; Pl.’s Resp. 56.1 ¶¶ 10–12. Plaintiff then began yelling at Pelletieri before leaving the office for the day. Def.’s 56.1 ¶¶ 10–12; Pl.’s Resp. 56.1 ¶¶ 10–12. A few days later, Plaintiff apologized to Witherspoon. Def.’s 56.1 ¶ 14; Pl.’s Resp. 56.1 ¶ 14.
None of the attorneys in the Hollywood office were at the office the day of the incident, but Pelletieri, Barry, and Hart notified Miller and Ted Uno ("Uno"), another partner at BSF, of Plaintiff's conduct a few days later. Def.’s 56.1 ¶¶ 15–18; Pl.’s Resp. 56.1 ¶¶ 15–18. Miller subsequently made the decision to terminate Plaintiff's employment, which Uno and Schwartz both agreed was the correct course of action. Def.’s 56.1 ¶¶ 19–20; Pl.’s Resp. 56.1 ¶ 20. Plaintiff partially disputes these facts, specifically that Miller made the termination decision. See Pl.’s Resp. 56.1 ¶ 19 ("Disputed. I doubt whether Charles Miller made the decision since he stated in an email that was in their discovery that he was surprised that I was terminated and wanted to know what happened. Plus it was Pelletieri who wanted me gone and Ted Uno made the decision."). The Parties also dispute whether Miller and Uno were aware of Campbell's asserted disability at the time the decision was made. Def.’s 56.1 ¶¶ 22–23; Pl.’s Resp. 56.1 ¶¶ 22–23. However, it is undisputed that Defendant terminated Plaintiff's employment on May 17, 2019. Def.’s 56.1 ¶ 24; Pl.’s Resp. 56.1 ¶ 24. As she was leaving the office, Plaintiff made profane remarks to the receptionist and her other co-workers. Def.’s 56.1 ¶ 25; Pl.’s Resp. 56.1 ¶ 25.
Plaintiff provides no citation to the alleged email between Miller and herself in the record, nor does she produce any evidence to suggest that Uno made the decision to terminate her employment.
On August 27, 2019—and while represented by counsel—Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge wherein she alleged disability discrimination but did not check the box for or allege age discrimination on the form. Def.’s 56.1 ¶¶ 27–28; Pl.’s Resp. 56.1 ¶¶ 27–28. In her Statement of Material Facts, Plaintiff states that (1) she "suffers from Generalized and [sic] Anxiety and Panic Disorders"; (2) these disorders affect her major life functions; (3) she is disabled; (4) she requested reasonable accommodations; (5) she "was treated for these disorders hundreds of times"; (6) Defendant was aware of her disability and refused to grant her reasonable accommodations; and (7) Defendant terminated her because of her disability. (ECF No. 35) at 3. Defendant disputes all of these facts, but, for the purposes of its Motion, assumes that Plaintiff has a disability within the meaning of the Americans with Disabilities Act ("ADA") and requested the accommodations alleged in her Amended Complaint. See generally Def.’s Reply 56.1.
Defendant also argues that the Court should reject Dr. Joseph Ciavarella, Jr.’s ("Dr. Ciavarella") Declaration ("Ciavarella Decl.") (ECF No. 35-2) because Dr. Ciavarella failed to comply with a lawful subpoena to produce Plaintiff's medical and psychological records or even return Defendant's counsel's emails and phone calls, but drafted the letter attached to the Declaration. However, the Court referred all pretrial discovery matters to the Honorable Lurana S. Snow, United States Magistrate Judge, on December 13, 2019. (ECF No. 5). Therefore, any discovery disputes should have been brought before Magistrate Judge Snow at an appropriate time—not in a summary judgment filing.
In her Amended Complaint, Plaintiff brings three claims against BSF: (1) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. ("Count 1"); (2) disability discrimination in violation of the ADA, 42 U.S.C. §§ 12101 et seq. ("Count 2"); and (3) failure to provide a reasonable accommodation, also in violation of the ADA ("Count 3"). See generally ("Am. Compl.") (ECF No. 19). Now, BSF moves for summary judgment on all of Plaintiff's claims against it. See generally Mot.
II. LEGAL STANDARD
Summary judgment is appropriate where there is "no genuine issue as to any material fact [such] that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 ). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "For factual issues to be considered genuine, they must have a real basis in the record." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) (citation omitted). Speculation cannot create a genuine issue of material fact sufficient to defeat a well-supported motion for summary judgment. Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005).
The moving party has the initial burden of showing the absence of a genuine issue as to any material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). In assessing whether the moving party has met this burden, a court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the non-moving party. Denney v. City of Albany , 247 F.3d 1172, 1181 (11th Cir. 2001).
Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to present evidence showing a genuine issue of material fact that precludes summary judgment. Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) ; see also Fed. R. Civ. P. 56(e). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992). But if the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
III. DISCUSSION
In its Motion, Defendant argues that (1) Plaintiff's age discrimination claim fails due to Campbell's failure to exhaust her administrative remedies; (2) Plaintiff's disability discrimination fails because it (a) does not establish a prima facie case and (b) does not show that Defendant's termination of Campbell's employment was a pretext for discrimination; and (3) Plaintiff's failure-to-accommodate claim is time-barred and, alternatively, the alleged accommodations were not reasonable. Mot. at 11–19. Plaintiff responds generally that (1) "[v]irtually every issue of material fact upon which the Defendant relies in their Motion is in dispute and it is up to a jury to decide who they believe"; (2) Plaintiff has established a prima facie case for discrimination under the ADA; (3) Plaintiff has "stated a case for denial of reasonable accommodations under the ADA"; and (4) Plaintiff's allegations are supported by evidence in the record and have not been rebutted or disputed by Defendant. Resp. at 2–3. In reply, Defendant maintains that Plaintiff has conceded that (1) she did not exhaust her administrative remedies for her ADEA claim; (2) she failed to establish a prima facie case of disability discrimination under the ADA or that BSF's "legitimate, non-discriminatory reason for terminating her employment was a pretext for disability discrimination"; and (3) her failure-to-accommodate claim is time barred and her requested accommodations unreasonable. Reply at 2–7. The Court addresses these arguments below.
A. Defendant is Entitled to Summary Judgment on Plaintiff's ADEA Claim because Campbell Failed to Exhaust Her Administrative Remedies.
In its Motion for Summary Judgment, Defendant argues that the Court need not reach the merits of Plaintiff's ADEA claim because she failed to exhaust her administrative remedies. Mot. at 11–13. Specifically, Defendant contends that Plaintiff's EEOC charge alleged only disability discrimination, and that it did not indicate elsewhere on the form that she was also pursuing a claim for age discrimination. See id. at 11–12 ("Plaintiff checked the box on her charge only for disability discrimination—not age discrimination."). Plaintiff's Response does not directly address BSF's argument; rather, she generally argues that (1) there are issues of fact—both disputed and undisputed—that require denial of summary judgment, and (2) Defendant's evidence "has no credibility." See generally Resp. Defendant argues in its Reply that Plaintiff has conceded her ADEA claim by failing to respond to its argument. Reply at 2.
While Plaintiff does not respond to BSF's ADEA claim argument in her Response, she does refer to it in passing in her Response 56.1. See Pl.’s Resp. 56.1 ¶ 27 ("Disputed. I forgot to checkmark the age discrimination box, but I obviously meant to."). The Court finds this statement unpersuasive, as there is no indication anywhere in Plaintiff's EEOC charge that she intended to allege age discrimination in addition to disability discrimination. See generally ("EEOC Charge File") (ECF No. 31-10).
"The ADEA requires that an individual exhaust available administrative remedies by filing a charge of unlawful discrimination with the EEOC before filing a lawsuit." Bost v. Fed. Express Corp. , 372 F.3d 1233, 1238 (11th Cir. 2004) ; see 29 U.S.C. § 626(d). This requires that a plaintiff actually allege age discrimination in their EEOC charge. See, e.g. , Morris v. Bessemer City Bd. of Educ. , No. 2:19-CV-01231-AKK, 2020 WL 1938984, at *3 (N.D. Ala. Apr. 22, 2020) ("The ADEA has a similar exhaustion requirement as Title VII. The court cannot afford [the plaintiff] an opportunity to amend this claim, however, because [the plaintiff's] charge did not mention age discrimination.") (internal citation omitted); see also Bouey v. Orange Cnty. Serv. Unit , No. 6:14-CV-48-ORL-37GJK, 2015 WL 1894278, at *1 n.1 (M.D. Fla. Apr. 27, 2015) ("The EEOC charge that Plaintiff filed prior to commencing this action makes no reference to age discrimination or to the ADEA; it references only race discrimination in violation of Title VII. Accordingly, Plaintiff failed to exhaust her administrative remedies prior to bringing her ADEA claims, rendering those claims non-cognizable.") (internal citation omitted).
By failing to address Defendant's exhaustion argument, Campbell abandoned her ADEA claim. See Jones v. Bank of Am., N.A. , 564 F. App'x 432, 434 (11th Cir. 2014) (concluding that a "party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed"); Davis v. Coca-Cola Bottling Co. Consol. , 516 F.3d 955, 972 n.36 (11th Cir. 2008) ("[Plaintiff] did not defend the claim on summary judgment; he thus abandoned it."). Regardless, the record shows that Plaintiff did not allege age discrimination in her EEOC charge, see generally EEOC Charge File, rendering her claim non-cognizable. See Bouey , 2015 WL 1894278, at *1 n.1. Because Defendant has met its burden of establishing that no genuine issue of material fact exists that Plaintiff failed to exhaust her administrative remedies—and Plaintiff has not rebutted that showing—Defendant is entitled to summary judgment on Campbell's ADEA claim.
B. Defendant is Entitled to Summary Judgment on Plaintiff's Disability Discrimination Claim because Campbell Has Failed to Establish a Prima Facie Case or Show Her Termination was a Pretext for Discrimination.
Defendant asserts in its Motion that (1) Plaintiff cannot establish a prima facie case of disability discrimination, specifically arguing that (a) Miller did not know of Campbell's asserted disability; (b) Miller did not terminate Campbell because of her asserted disability; and (c) Plaintiff has produced no evidence that any of her co-workers were similarly disabled and treated more favorably than she was; and (2) Plaintiff cannot show that BSF's legitimate, non-discriminatory reason for terminating her employment is a pretext for discrimination even if she could. Mot. at 13–20. Plaintiff once again asserts generally that she has "stated prima facie case for discrimination under the ADA." See generally Resp. In reply, Defendant reiterates its earlier arguments and additionally contends that Plaintiff has conceded her disability discrimination claim by failing to adequately respond. Reply at 3–7. Because the Court concludes that Campbell has not established a prima facie case for disability discrimination, the Court does not reach Defendant's second argument.
As the Court concluded above, Plaintiff has also conceded her disability discrimination claim by failing to respond specifically to Defendant's arguments in her Response. See Jones , 564 F. App'x at 434. While Plaintiff's failure warrants entry of summary judgment in Defendant's favor, the Court nonetheless proceeds to the merits of Plaintiff's claim.
"In the absence of direct evidence of discrimination, a plaintiff may establish a prima facie case that she was terminated on the basis of her disability through circumstantial evidence." Zabala v. United Airlines, Inc. , No. 18-62490-CIV, 2020 WL 2933110, at *9 (S.D. Fla. May 14, 2020). An ADA claim based on circumstantial evidence is analyzed under the framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), "which requires the plaintiff to create an inference of discrimination through her prima facie case. If the plaintiff can make this showing, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action." Byrd v. UPS , 814 F. App'x 536, 538 (11th Cir. 2020) (internal citation omitted). "In order to state a prima facie discriminatory termination claim under the ADA, a plaintiff must show three things: (1) [s]he is disabled; (2) [s]he is a qualified individual; and (3) [s]he suffered unlawful discrimination because of [her] disability." Jarvela v. Crete Carrier Corp. , 776 F.3d 822, 828 (11th Cir. 2015). "An employee cannot be fired ‘because of’ a disability unless the decisionmaker has actual knowledge of the disability." Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1185 (11th Cir. 2005). "[N]either a court nor a jury may impute knowledge to a decision-maker who has sworn he had no actual knowledge." Brochu v. City of Riviera Beach , 304 F.3d 1144, 1156 (11th Cir. 2002) (citing Silvera v. Orange Cnty. Sch. Bd. , 244 F.3d 1253, 1262 (11th Cir. 2001) ("Discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent.")).
As discussed supra , Defendant assumes for the purposes of its Motion that Plaintiff (1) has a disability within the meaning of the ADA, and (2) requested the accommodations alleged in her Amended Complaint. See generally Def.’s Reply 56.1.
Defendant has adduced evidence that Miller—who, as the administrative partner and decisionmaker of BSF's Hollywood office, terminated Campbell—did not have actual knowledge of her disability. See Def.’s 56.1 ¶¶ 3–4, 19, 22; Pl.’s Resp. 56.1 ¶¶ 3–4, 19, 22; see also ("Miller Decl.") (ECF No. 31-1) ¶ 10 (stating that (1) Plaintiff's age and disability had nothing to do with the decision to terminate her employment, and (2) "Ms. Campbell never told me that she had a disability or any medical condition. At the time I made the decision to fire her and continuing to this day, I am unaware of whether Ms. Campbell has a disability"). Plaintiff has failed to cite to any evidence in the record in rebuttal. See generally Resp.
Further, Plaintiff's argument that Schwartz and Pelletieri's knowledge of her medical appointments and disability imputes knowledge to Miller is unavailing. See Resp. at 2 ("The employer would have this court believe that the very supervisor who received this email and spoke with her every day, did not even know that she went to see a psychologist."). For "[e]ven when the employee's direct supervisor has knowledge of information indicating that an employee suffers from a disability, that information will not be imputed to the employer when the supervisor is not the one making the termination decision." Pecora v. ADP, LLC , 232 F. Supp. 3d 1213, 1219 (M.D. Fla. 2017) ; Cordoba , 419 F.3d at 1174–75 (stating that that a corporate decisionmaker must have actual knowledge for an employer to be liable under the ADA, and that a subordinate's knowledge cannot be imputed). Because Plaintiff has not established the third prong of a prima facie case for disability discrimination, Defendant is entitled to summary judgment. Payne v. Goodyear Tire & Rubber Co., 760 F. App'x 803, 809–10 (11th Cir. 2019) (concluding that summary judgment was proper where "the decision makers did not have actual knowledge of [the plaintiff's] disability, and thus [the plaintiff] was not discriminated against on the basis of his disability").
Campbell has additionally failed to produce evidence "that she was treated less favorably than ‘similarly situated’ individuals outside her class" as is also required at the prima facie stage. Lewis v. City of Union City, Ga. , 918 F.3d 1213, 1224 (11th Cir. 2019) (en banc). Generally, "a similarly situated comparator ... will have engaged in the same basic misconduct as the plaintiff, ... been under the same supervisor, ... shared the plaintiff's employment or disciplinary history," and been subject to the same employment policies or guidelines. See id. at 1227–28.
BSF argues that "no other employee in the Hollywood office engaged in behavior remotely similar to Plaintiff's conduct in the parking lot on May 3, or acted in a way that caused colleagues to fear for their safety or to ask for a transfer to another office." Mot. at 15. Plaintiff's Response—again—does not directly respond to this argument. See generally Resp. Defendant does note that Campbell named "certain people she felt were ‘similarly situated’ and treated better than her in her response to [its] interrogatories." See Mot. at 16; see also ("Pl.’s Answer to Interrog.") (ECF No. 31-13) at 7 ("Everyone in the office was treated better than me. For instance[,] Kathy [sic] Hart, Cathy Leo, Brian the receptionist, among others.").
Nevertheless, Campbell's deposition testimony makes it clear that she does not know whether these individuals engaged in similar misconduct or were disabled, see Campbell Dep. at 115:12–24, 170:17–171:21, 234:1–25, and Plaintiff points to no other evidence of similarly situated employees in the record. The Court does not consider the individuals listed in her response to BSF's interrogatories proper comparators. Lewis , 918 F.3d at 1224 ("We hold, instead—without trying to force an artificial gloss—that a plaintiff must show that she and her comparators are ‘similarly situated in all material respects.’ "). Therefore, Campbell has not demonstrated a prima facie case for disability discrimination. See, e.g. , Payne , 760 F. App'x at 810 (affirming summary judgment in favor of an employer because the plaintiff did not meet his burden of identifying a similarly situated comparator); Zabala , 2020 WL 2933110, at *9 (granting summary judgment because "Plaintiff did not identify a similarly situated comparator that incurred differential treatment"); Morgan v. GEO Grp., Inc. , No. 18-62774-CIV, 2020 WL 948466, at *14 (S.D. Fla. Feb. 5, 2020) (granting summary judgment for the defendant where the plaintiff "has adduced no evidence that he was treated differently than other similarly situated individuals"). Accordingly, Defendant is entitled to summary judgment on Count 2.
C. Defendant is Entitled to Summary Judgment on Plaintiff's Failure-to-Accommodate Claim because it is Time Barred and, Alternatively, because Plaintiff's Requests for Accommodations Were Not "Reasonable."
Defendant argues that (1) Plaintiff's failure-to-accommodate claim is time barred because Plaintiff filed her EEOC charge more than 300 days after she allegedly first requested—and was denied—accommodations, and (2) her requested accommodations do not qualify as reasonable under the ADA. Mot. at 15–19. Plaintiff again does not respond directly to Defendant's arguments, but instead argues generally that she has "stated a case against the Defendant for denial of reasonable accommodations under the ADA." Resp. at 2. In its Reply, Defendant contends that Plaintiff has conceded her failure-to-accommodate claim by not responding to its arguments. As a threshold matter, Defendant is correct that Plaintiff's failure-to-accommodate claim is time barred. Claims under the ADA are subject to a 300-day statute of limitation. See 42 U.S.C. § 2000e-5(e)(1). Because a claim for failure to accommodate involves discrete acts of alleged discrimination rather than a continuing violation, a plaintiff must file an EEOC charge within 300 days of the denial of the accommodation, otherwise the claim is time barred. See Abram v. Fulton Cnty. Gov't , 598 F. App'x 672, 676 (11th Cir. 2015) (holding that the district court "correctly concluded that the continuing violations doctrine was inapplicable" in a case where a plaintiff raised a number of claims which alleged specific instances of the defendant's denial of her requested accommodations, instead finding them to be discrete acts of alleged discrimination); Elmenayer v. ABF Freight Sys., Inc. , 318 F.3d 130, 135 (2d Cir. 2003) ("[A]n employer's rejection of an employee's proposed accommodation for religious practices does not give rise to a continuing violation. Rather, the rejection is the sort of ‘discrete act’ that must be the subject of a complaint to the EEOC within 300 days."). Further, "any subsequent request for the same accommodation does not, and cannot, restart the statute of limitations period." Weber v. Cnty. of Lancaster , No. 4:17-CV-3117, 2019 WL 1437004, at *3 (D. Neb. Apr. 1, 2019) ; see also Zdziech v. DaimlerChrysler Corp. , 114 F. App'x 469, 471 (3d Cir. 2004) (concluding in the wrongful termination context that "[t]he repeated refusal of an employer to reinstate an employee to a formerly held position, however, does not give rise to a new claim of discrimination").
As the Court concluded above, Plaintiff has also abandoned her failure-to-accommodate claim by failing to respond to Defendant's arguments. See Jones , 564 F. App'x at 434. This alone is sufficient to grant Defendant summary judgment. However, the Court nonetheless addresses the merits of Plaintiff's claim below.
Here, the record indicates that Plaintiff first requested accommodations in May 2017. ("Campbell Dep.") (ECF No. 31-4) at 114:7–25 ("I told [Schwartz] when I started going [to see a psychologist] in 2015 that I was going there and then in 2017, I told him that I had this disability and I needed the accommodations.... [in] May of ‘17"). Campbell testified that she requested accommodations—specifically, "fewer hours, flex time and to work less with [Pelletieri]"—on an almost weekly basis but her requests were always denied. Id. at 147:5–18; 167:24–168:23. Plaintiff filed her EEOC charge on August 27, 2019—at least 819 days after she first requested and was denied accommodations; assuming she made her request on the latest day possible: May 31, 2017. Def.’s 56.1 ¶¶ 27–28; Pl.’s Resp. 56.1 ¶¶ 27–28. Therefore, Plaintiff's failure-to-accommodate claim is time barred. See 42 U.S.C. § 2000e-5(e)(1).
However, Plaintiff's failure-to-accommodate claim would nevertheless fail even if it were not time barred because her requested accommodations are not "reasonable" under the ADA. "An accommodation can qualify as ‘reasonable,’ and thus be required by the ADA, only if it enables the employee to perform the essential functions of the job." Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001) (citing 42 U.S.C. § 12112(b)(5)(A) ). And, "[t]he plaintiff bears the burden of identifying an accommodation, and of demonstrating that the accommodation allows [her] to perform the job's essential functions." Id. at 1255–56.
To begin, Plaintiff testified in her deposition that her disability did not affect her ability to do her job. See Campbell Dep. at 138:21–139:3, 162:18–21 (stating that "It didn't affect the ability to do my job. If people would have left me alone and not harassed me continuously, it would have been perfectly fine" and responding to a question about whether her she had "previously written on [her] EEOC form that [her] disability did not affect [her] ability to work ... No. My job was perfect. It's all you have to do, look at all the evaluations and not look at the ones that Winnie prepared and look at the ones that my boss sent out"). Defendant argues that "[t]his admission makes clear that whatever ‘accommodations’ Plaintiff wanted, they were not needed to perform the essential functions of her job, since, according to her, she could already fully perform them" and that "the accommodations were not required by the ADA, and BSF could not have violated the ADA by not providing them." Mot. at 22.
As mentioned previously, Plaintiff provides no evidence or legal authority rebutting this argument. See generally Resp. Consequently, because Campbell concedes that her disability did not affect her ability to perform her job, BSF was under no obligation to accommodate her requests, even had they been considered reasonable under the law. See D'Onofrio v. Costco Wholesale Corp. , 964 F.3d 1014, 1022 (11th Cir. 2020) ("[I]f an employee does not require an accommodation to perform her essential job functions, then the employer is under no obligation to make an accommodation, even if the employee requests an accommodation that is reasonable and could be easily provided.")
Moreover, Plaintiff's request to work a 32-hour work week was neither reasonable nor required under the ADA as BSF did not offer then—and does not offer now—part-time legal assistant positions. ("Pelletieri Decl.") (ECF No. 31-3) at ¶ 9; see also Rabb v. Sch. Bd. of Orange Cnty., Fla. , 590 F. App'x 849, 851 (11th Cir. 2014) ("The fact that both the statute and regulations list part-time work ‘as a potential reasonable accommodation’ does not mean ‘part-time work is always a reasonable accommodation.’ Rather, ‘[w]hether an accommodation is reasonable depends on specific circumstances,’ and ‘[i]n a specific situation, part-time employment may or may not be reasonable.’ ") (internal citation omitted). And, the ADA does not require Defendant to create such a position for Campbell. See Rabb , 590 F. App'x at 851 (stating that "there is no duty to create a part-time position where the employer has eliminated part-time positions") (citation omitted); Terrell v. USAir , 132 F.3d 621, 626 (11th Cir. 1998) ("In this case, where USAir had no part-time jobs when Plaintiff demanded such a position, a request for part-time employment was unreasonable.").
Further, Campbell's request to have no contact with Pelletieri is similarly not an accommodation required under the ADA. See, e.g. , D'Onofrio , 964 F.3d at 1024 ("[B]oth this Court and the [EEOC] have indicated that ‘[a] transfer [of an employee] from an incompatible supervisor is not a "reasonable accommodation." ’ "); Coulson v. The Goodyear Tire & Rubber Co. , 31 F. App'x 851, 858 (6th Cir. 2002) (holding that the plaintiff's request that the employer "transfer him so that he will not be required to work with certain people" was not a reasonable accommodation and that "[c]ourts are not meant to act as a super-bureau of Human Resources").
Defendant has demonstrated that Plaintiff's failure-to-accommodate claim is time barred and, alternatively, that her requested accommodations were not reasonable under the ADA. And, Plaintiff has failed to produce evidence or cite case law rebutting BSF's showing. Thus, BSF is entitled to summary judgment on Campbell's failure-to-accommodate claim.
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant Boies, Schiller, Flexner LLP's Motion for Summary Judgment (ECF No. 30) is GRANTED. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, final judgment shall be entered by separate order. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of June, 2021.