United States District Court, W.D. North Carolina, Charlotte Division
DAVID C. KEESLER, Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on "Plaintiff's Second Motion For Summary Judgment And Memorandum Of Law In Support" (Document No. 41); "Defendant's Motion For Summary Judgment" (Document No. 47); and "Defendant's Motion To Strike Plaintiff's Affidavits'" (Document No. 51). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and these motions are now ripe for disposition. Having carefully considered the motions, the record, and applicable authority, the undersigned will grant the motions in part, and deny the motions in part.
A. Statement Of Facts
Plaintiff Lynette B. Cole ("Plaintiff" or "Cole") began employment with Defendant Charlotte-Mecklenburg School District ("Defendant" or "CMS") in August 2012, and was assigned to teach literacy and social studies to fourth and fifth grade students at Merry Oaks International Academy ("Merry Oaks") in Charlotte, North Carolina. (Document No. 4, p.2; Document No. 10, p.1). Plaintiff was a first-year teacher with Defendant, and purportedly her position at Merry Oaks was her first job as a classroom teacher in any school district. (Document No. 48, p.3). Plaintiff's teaching duties began on August 27, 2012. (Document No. 4, p.2; Document No. 48, p.3). According to Plaintiff, she was subjected to "constant harassment, beginning August 27, 2012 by Philip Steffes, Principal, Tracy Hager, Assistant Principal, and Scarlett Sellers, ESL Support Staff Teacher, "... including "daily criticism, public humiliation, bullying sabotage, and coercive acts that forced [her] to resign." (Document No. 4, p.2).
On September 17, 2012, Plaintiff allegedly "made known" to her supervisor Tracy Hager ("Hager") her "mental disability, Generalized Anxiety Disorder (GAD)." (Document No. 4, p.2). Philip Steffes ("Steffes") conducted a formal evaluation/observation of Plaintiff on September 24, 2012. (Document No. 4, p.2; Document No. 48, p.4). On September 25, 2012, Plaintiff was absent from work, purportedly due to illness. (Document No. 4, p.2; Document No. 10, p.2). Hager emailed and called Plaintiff at home on September 25, 2012. Id . A meeting was held on September 27, 2012, including Plaintiff, Steffes, and Hager. (Document No. 4, p.2; Document No. 48, p.4). The parties disagree as to whether during that meeting Steffes or Plaintiff proposed that Plaintiff should consider resigning from CMS. Id.
On or about October 1 or 8, 2012, a meeting/mediation was held between Plaintiff, Steffes, Hager, and Employee Relations Specialist Dosha Dacus ("Dacus") regarding Plaintiff's allegations against her supervisors and her request to transfer. (Document No. 4, p.3, Document No. 10, p.3). Plaintiff acknowledges that "Ms. Dacus later informed me that she required additional information regarding my disability even though my doctor had already provided her with a diagnosis that stipulated my disorder." (Document No. 4, p.3) (emphasis added).
Defendant contends that Plaintiff faxed three (3) pages to Dacus on October 18, 2012, including: a fax cover sheet noting a request for "an administrative transfer from Merry Oaks"; a "Request for Leave Form" completed by Plaintiff; and a "Health Care Provider Certification for Medical Leave" ("HCPC") form. (Document No. 48, p.4). Defendant further contends that Dacus emailed and placed in the mail a letter to Plaintiff on October 19, 2012, explaining that Defendant needed specific additional information to make a determination about Plaintiff's request to transfer and to identify a reasonable accommodation. (Document No. 48, p.5; Document No. 15-1, p.48). Defendant asserts that Plaintiff failed to return an "ADA Release" provided by Dacus, and "never submitted any additional medical documentation regarding her request for transfer." Id.
According to the Complaint, Plaintiff reported her "claims to CMS' Employee Relations Department" and her "harassment claim was ignored, and even with medical documentation of my disability, my request for reasonable accommodation under ADA, which was a transfer to another school, was denied by letter on November 9, 2012." (Document No. 4, p.3). Defendant acknowledges that Dacus sent Plaintiff a letter dated November 9, 2012. (Document No. 10, p.2). The purpose of the November 9, 2013 Dacus letter was to confirm the status of Plaintiff's employment with Charlotte-Mecklenburg Schools. (Document No. 47-1, p.44). That letter provides in part:
Your request for leave under the Family Medical Leave Act (FMLA) has been denied.... it was determined you are ineligible for FMLA leave because you have not worked for CMS for 12 months prior to the beginning of your leave....
In addition, you requested a workplace accommodation (e.g. administrative transfer to another school location) on October 18, 2012. You submitted to my office an HCPC form which is the same form you submitted to HR Benefits when you were requesting a medical leave of absence. However, the form only included a diagnosis. The documentation was not certification from your physician that an administrative transfer was recommended and/or medically necessitated in connection with your ability to continue to work as a teacher at Merry Oaks Elementary. As a result, I sent you a Reasonable Accommodation Request packet on October 19, 2012, requesting additional information from your physician as part of the standard process for reviewing workplace accommodation requests based upon medical need. Therefore, your request was considered a pending matter in the meanwhile. Moreover, the letter explained you were expected to return to Merry Oaks until a final determination was made either approving or denying your request....
Let me add that you must understand the procedure is an interactive process with responsibilities in the hands of both employee and employer. However, you have failed to reply to my e-mail or communicate with me verbally or in writing with respect to the physician's statement and your employment status. As a result, your request for an administrative transfer is denied effective today based upon the information you have provided thus far. Your teaching position at Merry Oaks is available to you.
In a good faith effort, I previously provided you with support to help you cope with work related and personal stressors such as referral to the Employee Assistance Program (EAP) which is a free service to all CMS employees. I also offered to meet with you and your grade level team to help continue mediation efforts to work through the communication issues and other concerns you rose when I met with you, Mr. Steffes and Ms. Tracey Hager (Assistant Principal) on October 8th....
I will grant you a workplace accommodation for an approved leave to cover your absences from October 30, 2012 through November 19, 2012 although you are ineligible for FMLA leave. Please note these days will be charged as leave without pay unless you have available leave accruals (e.g., sick) to cover your absences through November 19th.
With this being said, your teaching position at Merry Oaks is still available to you. You will need to return to work or voluntarily submit your written resignation no later than November 16, 2012.
(Document No. 47-1, pp.44-46) (emphasis in original).
Plaintiff resigned from CMS on or about November 9, 2012. (Document No. 4, p.4; Document No. 10, p.4). The "Affadavit Of Evdoxia Dacus" states that at the time of her November 9, 2012 letter to Plaintiff, Dacus did not know that Plaintiff had submitted her resignation to CMS; moreover, Dacus had not communicated the decision regarding Plaintiff's request to transfer at the time Plaintiff resigned. (Document No. 45-1, p.4).
B. Procedural Background
Plaintiff's "Charge Of Discrimination" (Document No. 4-1, p.1) was submitted to the Equal Employment Opportunity Commission ("EEOC") on November 5, 2012. (Document No. 4, p.4). Plaintiff's "Charge..." contends she was discriminated against based on her disability "and retaliated against for engaging in protected activity, in violation of the Americans with Disabilities Act of 1990, as amended." (Document No. 4-1, p.1).
Plaintiff's EEOC case and/or request for a "Notice Of Right To Sue" was forwarded to the United States Department of Justice on or about December 28, 2012. (Document No. 4, p.4; Document No. 4-1, p.2). On or about January 18, 2013, Plaintiff received a "Notice Of Right To Sue" (Document No. 4-1, p.3) from the U.S. Department of Justice. (Document No. 4, p.4).
Plaintiff, appearing pro se , initiated this action with the filing of her "Complaint" (Document No. 1) against Defendant on January 28, 2013. The Court issued an "Order" (Document No. 3) on March 11, 2013, requiring Plaintiff to amend her Complaint to include "the EEOC Notice of Charge and Notice of the Right to Sue letter so that the Court may determine the scope of this lawsuit." Plaintiff was also "encouraged to amend her Complaint to identify the disability from which she allegedly suffers." (Document No. 3, pp.3-4). On March 15, 2013, Plaintiff filed an "Amended Complaint" (Document No. 4). The "Answer Of Defendant Charlotte-Mecklenburg Board Of Education" (Document No. 10) was filed on July 3, 2013.
On July 17, 2013, the parties filed their "Certification And Report Of F.R.C.P. 26(f) Conference And Proposed Discovery Plan" (Document No. 11) and "Joint Stipulation of Consent to Exercise Jurisdiction by a United States Magistrate Judge" (Document No. 12). The undersigned issued a "Pretrial Order And Case Management Plan" (Document No. 14) on July 26, 2013. The "Pretrial Order..." set case deadlines as follows: discovery - December 1, 2013; mediation - December 15, 2013; motions - January 15, 2014; and trial June 16, 2014. (Document No. 14).
On August 27, 2013, Plaintiff filed her first "...Motion For Summary Judgment And Memorandum Of Law In Support" (Document No. 15). The Court denied "Plaintiff's Motion For Summary Judgment..." without prejudice, on August 28, 2013. (Document No. 17). The undersigned opined that
Under the circumstances, the undersigned finds that Defendant should be allowed to proceed with discovery. Moreover, the undersigned is not persuaded that Plaintiff will suffer any significant prejudice by cooperating in discovery, or by having her motion for summary judgment dismissed, without prejudice to re-file at a later date, following the completion of discovery and mediation.
(Document No. 17, p.2).
On or about November 4, 2013, mediator Gary S. Hemric provided notice that the parties' attempt to settle this matter had reached an impasse. (Document No. 37).
"Plaintiff's Second Motion For Summary Judgment And Memorandum Of Law In Support" (Document No. 41) was filed on December 3, 2013. "Defendant's Motion For Summary Judgment" (Document No. 47) was then filed on January 15, 2014. Also pending is "Defendant's Motion To Strike Plaintiff's Affidavits'" (Document No. 51) filed on February 5, 2014. These motions have been fully briefed and are now ripe for review and disposition.
II. STANDARD OF REVIEW
The standard of review here is familiar. Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant has 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 demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal citations omitted). Only disputes between the parties over material facts (determined by reference to the substantive law) that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
Once the movant's initial burden is met, the burden shifts to the nonmoving party. Webb v. K.R. Drenth Trucking, Inc. , 780 F.Supp.2d 409 (W.D. N.C. 2011). The nonmoving party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing there is a genuine issue for trial." Anderson , 477 U.S. at 248. In deciding a motion for summary judgment, a court views the evidence in the light most favorable to the non-moving party, that is, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson , 477 U.S. at 255. At summary judgment, it is inappropriate for a court to weigh evidence or make credibility determinations. Id.
When considering cross-motions for summary judgment, a court evaluates each motion separately on its own merits using the standard set forth above. See Rossignol v. Voorhaar , 316 F.3d 516, 522 (4th Cir. 2003); accord Local 2-1971 of Pace Int'l Union v. Cooper , 364 F.Supp.2d 546, 554 (W.D. N.C. 2005). Both Plaintiff and ...