Opinion
Civ. No. H-99-36.
August 1999.
MEMORANDUM OPINION
Plaintiff Donna M.J. Richardson ("Richardson") was employed by defendants as a member of the faculty at Frostburg State University (the "University") for the 1995-1996 academic year. After the University refused to reappoint her for the following year, Richardson, who suffers from dyslexia, filed a three count complaint in this Court, alleging (1) discrimination and wrongful discharge in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq . , (Count I), (2) retaliatory discharge in violation of the ADA (Count II) and (3) abusive discharge in violation of Maryland law (Count III).
Plaintiff has consented to the dismissal of Count III. Although the complaint and the parties' memoranda characterize plaintiff's claims as seeking relief for a "wrongful discharge," the parties conceded at oral argument that plaintiff is in fact claiming that defendants wrongfully failed to rehire her.
Presently pending before the Court is defendants' motion for summary judgment. After defendant filed this motion, the Court, pursuant to Rule 56(f), F.R.Civ.P., issued a Preliminary Scheduling Order and permitted plaintiff to undertake additional discovery. The parties have now submitted memoranda, exhibits and affidavits in support of and in opposition to the pending motion. A hearing on the motion has been held in open court. For the reasons stated herein, the Court has concluded that defendants' motion for summary judgment must be granted.
I Background Facts
In 1995, the University hired Richardson as a member of the faculty for the 1995-1996 academic year in the Department of Health, Physical Education, and Recreation (the "Department"). The job description stated that a successful candidate for the position would be hired as an Instructor (master's degree required) or as an Assistant Professor (doctorate required), but that a candidate with a doctorate would be preferred. An individual hired as an Instructor was required to be "actively working toward doctorate or committed to begin doctoral studies immediately."
Richardson was hired after an extensive faculty search. The search committee was chaired by Dr. Art Siemann ("Siemann"), and its work overseen by Dr. Edward Root ("Root"), Dean of the School of Education. Siemann and the search committee recommended Richardson for the position in part because she claimed that she had completed the course work for her doctorate at Temple University and was nearing completion of her dissertation. She informed the search committee that she might be able to defend her dissertation before she started teaching in September of 1995.
Later that year, Susan Arisman ("Arisman") replaced Root as Dean of the Department.
The parties dispute whether Richardson represented to the search committee that she would in fact complete her doctorate by the time of her appointment in late August of 1995.
Richardson's initial appointment letter dated June 5, 1995 informed her that if she did not submit verification of her Ph.D. by August 16, 1995, she would be appointed only as an Instructor. Shortly thereafter, Richardson informed Root that she would not be able to complete her doctorate by August 16. In a memorandum to Dr. Constance McGovern ("McGovern"), Provost of the University, Root acknowledged some of the difficulties Richardson was facing (e.g., moving from North Carolina to Frostburg and finding a place to live) and stated that Richardson was requesting a mid-September deadline for the completion of her doctorate. Root recommended that this request be granted and asked that McGovern authorize issuance of a revised appointment letter.
A revised appointment letter was accordingly issued on July 7, 1995. The letter informed Richardson that she would be granted an exception to the normal salary requirements for the position she would occupy. She would be paid at the Instructor level initially, but, if verification of her Ph.D. was received by September 15, 1995, she would be compensated retroactively at the Associate Professor level. Richardson did not complete her doctorate by September 15, and she was accordingly paid as an Instructor for the entire 1995-1996 academic year.
During her interviews and communications with the search committee in the Spring of 1995, Richardson disclosed that she was dyslexic and that she would require some accommodations with respect to her responsibilities. The University undertook to provide all of these accommodations after she was hired. When Richardson later requested an upgraded computer, the University informed her that she would need documentation of her disability. After testing confirmed her disability, the University promised to provide her with an upgraded computer, and Beth Hoffman ("Hoffman"), the University's ADA Compliance Officer, suggested that Richardson might benefit from using a voice-activated computer in the library. Hoffman told plaintiff that the University would attempt to provide a personal voice-activated computer, but that the computer would not be available until the Summer of 1996.
She requested five semester hours of release time during the Fall to coach, five office hours per week, a part-time graduate assistant to help read papers and manuals, and an appropriate computer.
Richardson contends that she was unable to use the library computer because she received no instruction as to its use, and that it was available only at times which conflicted with her teaching and coaching schedule. She claims that the original computer provided her was inadequate and that she was unable to use the upgraded computer eventually provided to her because she was not able to read and comprehend the instruction manual. She also claims that the students she was given to help her with reading were generally unavailable. She never received a voice-activated computer because she was not rehired for the 1996-1997 academic year. Richardson never complained of any of these alleged problems, except to note that "time/management job requirement issues" and difficulties relating to her dyslexia were impeding her progress towards her doctorate.
In early February of 1996, after a faculty review with Siemann, Arisman and another faculty member, Dr. Bonnie Hircock ("Hircock"), the Department recommended Richardson for reappointment the following year. Provost McGovern then sent Richardson a letter informing her that, based on the faculty recommendation, "President [of the University] Gira and I concur that you continue as an Instructor for the academic year 1996-1997." Later during February, Richardson was informed that completion of her doctorate was a prerequisite for her reappointment. Siemann requested that Richardson provide Dean Arisman with a progress report on her doctoral dissertation. Richardson reported to Arisman that she was encountering a number of difficulties, including the necessity of rewriting substantial portions of her dissertation. She stated that she hoped to obtain her Ph.D. by May of 1996, but that August of 1996 was "[p]erhaps the most realistic time line."
It is unclear whether she was informed of this requirement during or after her faculty review. In a letter to President Gira dated June 28, 1996, she stated that "during my faculty review . . . I was told that the completion of the degree was requisite to reappointment." Three years later, on June 28, 1999, she stated in an affidavit that she did not know that completion of her doctorate was a prerequisite for reappointment until she received Provost McGovern's letter dated February 20, 1996. In any event, she acknowledges that she was made aware of the requirement in February of 1996.
The members of Richardson's review committee recommended that her summer school courses be canceled in order to help her finish her degree by August, and the University did so. The University also provided Richardson with the assistance of a mathematics professor to help her with the statistical portions of her analysis.
On June 14, 1996, President Gira sent Richardson a formal reappointment letter, which stated that "the decision to renew your contract is contingent upon evidence of the award of the doctorate by August 1, 1996. If you do not complete your degree by the time stipulated, Frostburg State University is under no obligation to retain you as a faculty member for the academic year of 1996-97." Richardson signed this letter, acknowledging that she "accept[ed] the terms and conditions of this contract." In an attached letter, she expressed some concern about the August deadline, but assured President Gira that she would do all that she could to meet the deadline.
When it became apparent in late July of 1996 that Richardson could not complete her doctorate by August, she was informed that she would not be rehired. Richardson protested, claiming that she had made all reasonable efforts to complete the degree, and she requested reconsideration of the defendants' decision not to rehire her. This request was denied, and Richardson was not rehired. She has not, to date, completed her doctorate degree.
II Summary Judgment Principles
It is well established that a defendant moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
One of the purposes of Rule 56 of the Federal Rules of Civil Procedure is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and properly supported, to come forward with some minimal facts to show that the defendant may be liable under the claims alleged. See F.R.Civ.P. 56(e). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then "the plain language of Rule 56(c) mandates the entry of summary judgment."Catrett, 477 U.S. at 323.
While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "`A mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 640 (E.D.N.C. 1966),aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). Moreover, only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In the absence of the necessary minimal showing by the plaintiff that the defendant may be liable under the claims alleged, the defendant should not be required to undergo the considerable expense of preparing for and participating in a trial. See Catrett, 477 U.S. at 323-24; Anderson, 477 U.S. at 256-57. Indeed, the Fourth Circuit has stated that, with regard to motions for summary judgment, the district courts have "an affirmative obligation . . . to prevent `factually unsupported claims and defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Catrett, 477 U.S. at 323-24).
Applying these principles to the facts of record here, this Court has concluded that defendants' motion for summary judgment must be granted.
III Discrimination in the Course of Employment (Count I)
Plaintiff alleges that the University discriminated against her in violation of Title II of the ADA. In pertinent part, Title II provides as follows:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C.A. § 12132 (1995).
Although the complaint does not specify whether plaintiff's claims are brought under Title I, 42 U.S.C. § 1211-12117, which covers general employment discrimination, or under Title II, 42 U.S.C. § 12131-12165, which covers discrimination by state and local governments, defendants assume, and plaintiff does not dispute, that this action should properly be considered as one brought under Title II. Cf. Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1264 and n. 8 (4th Cir. 1995) (analyzing an ADA employment complaint brought against another entity of the University of Maryland under Title II of the ADA). Regardless, the same general burden of proof applies.
In order to establish a violation of this statute, plaintiff must prove "(1) that [she] has a disability; (2) that [she] is otherwise qualified for the employment or benefit in question; and (3) that [she] was excluded from the employment or benefit due to discrimination solely on the basis of the disability." Doe v. University of Maryland Med. Sys. Corp . , 50 F.3d 1261, 1265 (4th Cir. 1995); accord Tyndall v. National Educ. Ctrs., Inc . , 31 F.3d 209, 215 (4th Cir. 1994); Foremanye v. Board of Community College Trustees , 956 F. Supp. 574, 579 (D. Md. 1996), aff'd 107 F.3d 865 (4th Cir. 1997) (TABLE).
Defendants do not dispute that plaintiff suffers from a disability. They contend that they are entitled to summary judgment because plaintiff failed to obtain her doctorate within the time frame specified as a condition for her reappointment and because she was therefore not qualified for continuing employment with the University. They further assert that the record shows that they did not discriminate against plaintiff on account of her disability.
Plaintiff disputes that possession of a doctorate was a requirement for her reappointment as an Instructor, and she contends that this presents a material factual dispute sufficient to preclude summary judgment. Plaintiff also argues that the University failed to accommodate her disability, made it impossible for her to succeed, and instituted the doctorate requirement only after she complained to the University that it had failed to adequately accommodate her.
Defendants' motion for summary judgment will be granted as to Count I of the complaint. Plaintiff has failed to make a sufficient showing as to the second and third elements of an ADA claim for failure to rehire, and summary judgment in favor of defendants is therefore mandated. See Catrett, 477 U.S. at 323. To satisfy the second element of an ADA claim, plaintiff must show that she was qualified for the benefit in question. See Doe, 50 F.3d at 1265. This she has failed to do, inasmuch as the record establishes that she concedes that she both understood and acknowledged that receipt of her doctorate was a prerequisite for reappointment for the 1996-1997 academic year.
According to plaintiff, the parties dispute whether she had promised to obtain her doctorate the previous year and whether the University made that expectation clear to her. Those disputes, however, are not material to the question of Richardson's qualifications for reappointment. It is not disputed on the record here that Richardson failed to satisfy a prerequisite for her reappointment when she did not obtain her doctorate by August of 1996.
Richardson cannot reasonably contend that such failure resulted from the University's refusal to adequately accommodate her disability. All of the alleged inadequacies relied upon (e.g., failure to provide an adequate computer, failure to provide a graduate assistant, etc.) relate solely to her job performance during the 1995-1996 academic year. The relevant issue here, however, is Richardson's failure to obtain her doctorate degree by the stated deadline and not her prior job performance. The record indicates that the University, rather than interfere with Richardson's efforts to meet that requirement, actually went out of its way to assist her. The University voluntarily extended its initial deadline to enable Richardson to be reimbursed retroactively at the Associate Professor level. It also canceled her summer classes to free up her schedule and even provided her with the assistance of a mathematics professor. On the record here, there is no merit to plaintiff's contention that she did not receive her doctorate because the University failed to accommodate her disability.
The basis for the decision not to rehire plaintiff was her failure to obtain her doctorate, and not the performance of her job. The review committee's recommendation in February of 1996 to rehire her demonstrates that her job performance was satisfactory.
Richardson has also failed to satisfy the third element of an ADA claim, namely that she was excluded "from the employment or benefit due to discrimination solely on the basis of the disability." Doe , 50 F.3d at 1265. Even if the Court were to assume that the University failed to provide her with proper assistance and failed to make the requirement of a doctorate clear prior to February of 1996, the record in this case would not permit a finder of fact to reasonably conclude that the University discriminated against her "solely on the basis of [her] disability." Id .
Where, as here, the same person makes the decision to employ and the decision to fire or refuse to rehire someone with a disability, "a strong inference of nondiscrimination" arises. Tyndall , 31 F.3d at 215 (citing Proud v. Stone , 945 F.3d 796, 797 (4th Cir. 1991)); see also Foremanye , 956 F. Supp. at 548. Siemann, Arisman and the other University officials involved knew that Richardson was dyslexic when they hired her. It is highly unlikely that those same persons would decide not to rehire her because of her disability, particularly since they found that the performance of her job during the first year was satisfactory. See generally Tyndall , 31 F.3d at 215 ("An employer who intends to discriminate against disabled individuals or hold unfounded assumptions that such persons are not good employees would not be apt to employ disabled persons in the first place.")
In opposing defendants' motion, plaintiff has merely pointed to indeterminate circumstantial evidence of discrimination, declaring that "it takes little inference" from those facts to find an intent to discriminate against her. Plaintiff alleges (1) that defendants unfairly made possession of a doctorate a requirement for continued employment at the Instructor level, (2) that the University failed to give her the computer and staff assistance necessary to accommodate her dyslexia and (3) that the requirement of a doctorate invoked by the University to justify its decision not to reappoint her was imposed only after she complained that the University had failed to accommodate her disability.
Even if these facts were supported by the record, they do not, standing alone, support the inference that Richardson was not rehired because she was dyslexic or because the University did not want to accommodate her dyslexia. The record is devoid of evidence linking these alleged injustices to any sort of discriminatory animus against Richardson. By signing President Gira's letter of June 14, 1996, Richardson agreed that renewal of her contract was contingent upon her securing a doctorate degree by August 1, 1996, and it is undisputed that she did not meet that requirement. Cf . Adamczyk v. Chief, Baltimore County Police Dept . , 952 F. Supp. 259, 263-64 (D. Md. 1997) (granting summary judgment because plaintiff police officer failed to produce evidence showing that he was demoted because of his alcoholism rather than because of his inappropriate behavior), aff'd 134 F.3d 362 (4th Cir. 1998) (TABLE).
On the record here, there is accordingly no genuine issue of material fact as to plaintiff's rehiring claim and defendants' motion for summary judgment will therefore be granted as to Count I.
IV Retaliatory Discharge (Count II)
Count II of the complaint alleges that the University decided not to rehire Richardson in retaliation for her complaints about the University's failure to accommodate her disability. Summary judgment must also be granted as to this claim, since Richardson cannot establish a prima facie case of retaliation.
To establish a prima facie case of retaliation under the ADA, Richardson must show that "(1) [she] engaged in a protected activity; (2) [her] employer took an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action." Harmer v. Virginia Elec. and Power Co . , 831 F. Supp. 1300, 1308 (E.D.Va. 1993); cf . Williams v. Cerberonics , 871 F.2d 452, 457 (4th Cir. 1989) (applying these same elements in a Title VII claim for retaliatory discharge).
In support of her claim of retaliation, plaintiff offers little more than the ipse dixit of her lawyers. In her brief filed in opposition to the pending motion, plaintiff points to the timing of the University's decision to make receipt of a doctorate a prerequisite for reappointment and goes on to state that "Ms. Richardson has demonstrated that she engaged in a protected activity, that the Defendants took adverse employment action against her, and those facts demonstrate a causal connection between the protected activity and the adverse employment action." The very first requirement of a claim of retaliation under the ADA has not been met. Richardson has not demonstrated that she engaged in any "protected activity." Richardson made no complaint of discrimination, formal or informal, during the course of her employment. The only "complaint" relied upon is merely an observation. In the context of a February 15, 1996 progress report to Arisman on the status of her doctorate, Richardson stated that "[t]he stumbling blocks I see in front of me are on one level time management/job requirement issues and on another level the result of being dyslexic." This is an excuse, not a complaint.
Even if Richardson could show that she engaged in a protected activity, she has failed to satisfy the third element of a prima facie case, namely causation. Plaintiff's opposition brief indicates that she believes that she need only point to a protected activity and an adverse employment action to establish the causation element of a prima facie case. Such an application of the governing legal standard would render the third element superfluous. The first two elements of a prima facie case, without more, cannot establish the third. See Eckles v. Consolidated Rail Corp . , 890 F. Supp. 1391, 1416 (N.D.Iowa 1995) (plaintiff's failure to offer evidence of causation would require the jury to engage in improper speculation based on timing alone).
Since, as a matter of law, plaintiff cannot establish a prima facie case of retaliation, and summary judgment must also be granted as to Count II of the complaint.
V Conclusion
For the reasons stated, defendants' motion for summary judgment will be granted. An appropriate Order will be entered by the Court.