Gigi Danielle-Diserafino v. District School Board of Collier County, Florida

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 29, 2018
• Docket: 18-10096
• Status: Unpublished

Opinion

Case: 18-10096 Date Filed: 11/29/2018 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10096 Non-Argument Calendar ________________________

D.C. Docket No. 2:15-cv-00569-PAM-CM

GIGI DANIELLE-DISERAFINO,

Plaintiff-Appellant,

versus

DISTRICT SCHOOL BOARD OF COLLIER COUNTY, FLORIDA,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(November 29, 2018)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM: Case: 18-10096 Date Filed: 11/29/2018 Page: 2 of 11

Gigi Danielle-DiSerafino appeals the district court’s grant of summary

judgment in favor of the District School Board of Collier County, Florida (the

School Board), in her action alleging failure to accommodate her disability in

violation of the Americans with Disabilities Act (ADA). Danielle-DiSerafino’s

appeal rests on four arguments. First, she argues that the district court erred in

granting summary judgment because (1) she established that she had a disability

under the ADA, (2) the School Board refused to grant her reasonable

accommodation requests, and (3) the fact that the School Board’s corporate

representative was unprepared for his deposition created genuine issues of material

fact. Second, Danielle-DiSerafino argues that the district court erred in not

addressing her constructive discharge claim. Third, she argues that the district

court erred in determining that the School Board’s actions did not constitute a

continuing violation. Finally, Danielle-DiSerafino claims that the district court

abused its discretion when it did not consider the Equal Employment Opportunity

Commission’s (EEOC) Letter of Determination which opined that she had

reasonable cause to sue under the ADA. We disagree with each of Danielle-

DiSerafino’s arguments, and therefore affirm.

On January 4, 2005, Danielle-DiSerafino, a high school teacher, was injured

at a faculty team building event as a result of an individual hitting her head while

ziplining. That same day, Danielle-DiSerafino completed the workers’

2 Case: 18-10096 Date Filed: 11/29/2018 Page: 3 of 11

compensation paperwork necessary to substantiate her claim, and was later referred

to a neurologist, Dr. Brian Wolff, by the School Board’s workers’ compensation

carrier. Dr. Wolff never opined that Danielle-DiSerafino was impaired with

respect to major life activities, or that her ability to teach would be impacted.

Danielle-DiSerafino continued to teach on the same schedule as she had prior to

the accident for the remainder of the school year. In 2006, after requesting a

physician change, Danielle-DiSerafino began receiving care from Dr. Joseph

Kandel. Dr. Kandel also concluded that Danielle-DiSerafino could continue

working as a teacher, that she did not have any impairment that would affect major

life activities,1 and that she did not require any accommodations. Dr. Kandel

proceeded to treat Danielle-DiSerafino for seven years, never indicating that she

required medical accommodations in order to perform the essential functions of her

job. In 2013, Danielle-DiSerafino moved to a third workers’ compensation

physician, Dr. Mark Rubino. Dr. Rubino likewise concluded that Danielle-

DiSerafino’s medical issues would not impair her major life activities and that she

was capable of teaching without accommodations.

Despite the doctors’ reports, Danielle-DiSerafino argues that she is disabled

under the ADA because some of her symptoms “substantially limits one or more of

[her] major life activities.” 42 U.S.C. § 12102(1). For example, Danielle-

1 For example, Dr. Kandel determined that Danielle-DiSerafino had a 3% impairment rating for her neck injuries, and a 0% impairment rating for her back injuries. See Doc. 37, Ex. A at 8. 3 Case: 18-10096 Date Filed: 11/29/2018 Page: 4 of 11

DiSerafino claims she is unable to multitask, external stimuli cause her stress, her

math skills have deteriorated, she experiences memory loss, and moving her neck

causes severe pain. Moreover, Danielle-DiSerafino points to affidavits submitted

by two coworkers to support her contention that she is disabled. The coworkers

maintain that Danielle-DiSerafino clearly suffered side effects from the injury, and

that the School Board did not accommodate her.

From the time Danielle-DiSerafino was injured until her ultimate retirement,

she claims to have requested several medical accommodations, including requests

to (1) teach smaller class sizes, (2) be assigned a larger classroom with windows,

(3) be assigned the first period as a planning period, (4) be exempted from

lunchroom duty, and (5) be permitted to ice her neck during the workday.

Danielle-DiSerafino concedes that she is unsure who she made these

accommodation requests to, and when she made them.

Based on these allegations, Danielle-DiSerafino filed a two-count complaint

alleging (1) violation of the ADA based on a theory of failure to accommodate, and

(2) workers’ compensation retaliation under Florida law. The district court

dismissed the latter claim at the pleading stage, and subsequently granted summary

judgment to the School Board as to the former claim, reasoning that Danielle-

DiSerafino was not disabled. The district court further determined that, even if she

was disabled, Danielle-DiSerafino did not adequately set forth her alleged requests

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for accommodation 2 and that the EEOC’s determination that the School Board

acted inappropriately was irrelevant. This appeal followed.

I.

Danielle-DiSerafino first argues that the district court erred in granting

summary judgment because (1) she established that she had a disability under the

ADA, (2) the School Board refused to grant her reasonable accommodation

requests, and (3) the fact that the School Board’s corporate representative was

unprepared for his deposition created genuine issues of material fact.

We review a grant of summary judgment in an ADA case de novo, drawing

all reasonable inferences in favor of the non-moving party. EEOC v. St. Joseph’s

Hosp., Inc., 842 F.3d 1333, 1342–43 (11th Cir. 2016). Summary judgment is

appropriate when there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a).

The ADA prohibits an employer from “not making reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an . . . employee.” 42 U.S.C.

§ 12112(b)(5)(A). To satisfy the prima facie case under the ADA, a plaintiff must

demonstrate (1) she is disabled; (2) she was a “qualified individual” at the relevant

2 The district court briefly expanded on this point. It determined that the continuing violation theory did not apply because each request for an accommodation was a discrete act. Moreover, the district court concluded that several of the accommodation requests were untimely. 5 Case: 18-10096 Date Filed: 11/29/2018 Page: 6 of 11

time, meaning she could perform the essential functions of the job with or without

reasonable accommodations; and (3) the employer failed to provide a reasonable

accommodation. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.

2001). The plaintiff bears the burden of establishing a prima facie case of

disability discrimination. Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305

(11th Cir. 2000).

An individual has a disability if she has “a physical or mental impairment

that substantially limits one or more of [her] major life activities.” 42 U.S.C.

§ 12102(1). Major life activities include performing manual tasks, sleeping,

walking, standing, lifting, bending, speaking, concentrating, thinking,

communicating, and working. Id. § 12102(2)(A). Pain alone is insufficient to

establish a disability if the evidence does not show impairment of a major life

activity. St. Joseph’s Hosp., 842 F.3d at 1344.

In EEOC v. St. Joseph’s Hosp., Inc., we held that a nurse was disabled

because she “suffered pain and more” where the evidence showed that without use

of a cane, “she could only walk short distances and would have to stop, align her

body, and balance herself.” Id. Similarly, in Mazzeo v. Color Resolutions Intern.,

LLC, we held that the plaintiff established that he was disabled where he provided

an affidavit from his doctor detailing his “medical condition, what specific pain the

condition caused, and the limitations on major life activities . . . resulting from the

6 Case: 18-10096 Date Filed: 11/29/2018 Page: 7 of 11

condition and pain.” 746 F.3d 1264, 1269 (11th Cir. 2014) (quotation marks

omitted). 3 There, the doctor’s affidavit noted that Mazzeo’s problems were

“substantial . . . and permanent.” Id.

Regarding the accommodation requirement, we have held that an employer

must provide a reasonable accommodation for an employee with a known

disability, unless such accommodation would result in undue hardship to the

employer. Lucas, 257 F.3d at 1255. An accommodation is reasonable and

required only if it enables the employee to perform the essential functions of the

job. Id. The plaintiff bears the burden of identifying an accommodation and

illustrating that the accommodation would enable her to perform the essential

functions of the job. Id. at 1255–56.

Here, the district court properly granted summary judgment to the School

Board because Danielle-DiSerafino did not establish a prima facie case of

disability discrimination. Danielle-DiSerafino failed to prove that she was disabled

within the meaning of the ADA because neither she nor her doctors adequately

demonstrated that her pain substantially limited a major life activity. Furthermore,

her coworkers’ affidavits do not create an issue of material fact about whether

3 In Mazzeo, this Court analyzed whether Mazzeo had a disability under the broader standard of the ADA Amendments Act of 2008 (“ADAAA”), which became effective January 1, 2009. Mazzeo, 746 F.3d at 1267. Mazzeo’s injury occurred prior to the ADAAA’s enactment, but “the critical events” of the case, including his continued back problems and termination, took place after the new law went into effect. Id. Here, it is not necessary to determine whether the critical events of Danielle-DiSerafino’s claim occurred before or after January 1, 2009, because her claim fails even under the broader ADAAA standard. 7 Case: 18-10096 Date Filed: 11/29/2018 Page: 8 of 11

Danielle-DiSerafino was disabled because those affidavits merely corroborate that

she suffered pain. Unlike the plaintiffs in St. Joseph’s Hospital and Mazzeo,

Danielle-DiSerafino did not establish through medical or other evidence that she

had “pain plus more.” St. Joseph’s Hosp., 842 F.3d at 1344; Mazzeo, 746 F.3d at

1269.

Because Danielle-DiSerafino failed to establish that she was disabled, it is

unnecessary for this Court to consider her second claim—that the School Board

refused to grant her medical accommodations.

Danielle-DiSerafino also argues that summary judgment was improper

because the School Board’s corporate representative was unprepared for his

deposition, and thus genuine issues of fact still exist. Specifically, she argues that

the corporate representative did not know whether Danielle-DiSerafino made any

accommodation requests or whether those requests, if any, were granted.

We have held that if an entity’s corporate representative denies knowledge

of certain matters in a deposition, the district court retains discretion to admit

testimony by other employees with knowledge of those matters. See Vista

Marketing, LLC v. Burkett, 812 F.3d 954, 980–81 (11th Cir. 2016). In this case,

Principal Timothy Kutz testified as to the exact topics the corporate representative

failed to testify about; that is, Kutz testified about Danielle-DiSerafino’s

accommodation requests. Accordingly, it was within the district court’s discretion

8 Case: 18-10096 Date Filed: 11/29/2018 Page: 9 of 11

to consider Kutz’s testimony in determining that there was no genuine issue of

material fact. See Vista Marketing, 812 F.3d at 980–81.

II.

Second, Danielle-DiSerafino argues that the district court erred in not

addressing her constructive discharge claim. According to Danielle-DiSerafino,

the School Board’s refusal to accommodate her disability created a hostile work

environment, eventually leading to a constructive discharge.

Since the district court correctly determined that Danielle-DiSerafino was

not disabled, and thus was not entitled to accommodations, it was unnecessary for

the district court to consider whether the lack of accommodations resulted in a

constructive discharge.

III.

Next, Danielle-DiSerafino argues that the continuing violation doctrine

applies to her claims; thus, none of the requests for accommodations she relied on

were time-barred or unexhausted. Moreover, she argues that even if the continuing

violations doctrine did not apply, at least some of the incidents were not time-

barred.

Like her previous argument, this argument fails because it was unnecessary

for the district court to consider whether Danielle-DiSerafino made adequate

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accommodation requests, as she failed to satisfy the first step of the pima facie

case—demonstrating that she was disabled.

IV.

Finally, Danielle-DiSerafino claims that the district court abused its

discretion when it did not consider the Equal Employment Opportunity

Commission’s (EEOC) Letter of Determination which stated that Danielle-

DiSerafino had reasonable cause to sue under the ADA. While Danielle-

DiSerafino concedes that the letter by itself does not preclude summary judgment,

she argues that ignoring the letter was improper.

EEOC findings are not binding with regard to subsequent discrimination

suits in federal court. Moore v. Devine, 767 F.2d 1541, 1550–51 (11th Cir. 1985),

modified on reh’g, 780 F.2d 1559, 1560 (11th Cir. 1986). The district court is not

required to defer to the EEOC determination, and it must conduct a de novo review

of the claims. Id. The probative value of EEOC findings is left to the district

court’s discretion. See Barfield v. Orange Cty., 911 F.2d 644, 649–51 (11th Cir.

1990).

Here, the district court was not required to defer to the EEOC’s

determination that Danielle-DiSerafino had established probable cause. See

Moore, 767 F.2d at 1550–51. Rather, it concluded that she had not established a

prima facie failure to accommodate case. Because the district court was within its

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discretion to not consider the EEOC’s determination, it was not error for it to

determine that the determination was irrelevant.

For the foregoing reasons, we affirm.

AFFIRMED.