MAX O. COGBURN, JR., United States Magistrate Judge.
THIS MATTER is before the court upon defendant's Motion for Summary Judgment. Having carefully considered that motion and reviewed the pleadings, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Procedural History
On December 23, 1997, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that she had been discriminated against in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), and the Americans With Disabilities Act ("ADA"). While raising the ADA, plaintiff did not administratively allege that defendant harassed her or created a hostile work environment based on any physical or mental impairment.
A right-to-sue letter issued on September 22, 1998, and on December 21, 1998, plaintiff filed this civil action. The only allegation presented to this court, however, was that plaintiff suffered (and continues to suffer) from a knee injury and defendant subjected her to harassment because of that impairment, which she contends rises to the level of a disability, all in violation of the ADA. There is no ADEA claim before this court.
II. Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
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. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a
genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986).
By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id., at 248. 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.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).
Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendant's Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves.
United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper.
Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Relevant Facts Considered In a Light Most Favorable to Plaintiff
At all relevant times, plaintiff was either a counselor or a teacher at East Mecklenburg High School. During her long tenure, she was charged with the task of overseeing and promoting what was basically the vocational education department of that school. At times, the program, the school, and plaintiff thrived, and plaintiff received commendations for her work. Towards the end of her career, the undisputed record reveals that plaintiff's performance, as perceived by her peers and supervisors, slipped. Plaintiff also sustained a fall during that period, which injured her knee, required surgery, and resulted in certain limitations as to standing, sitting, squatting, lifting, and climbing.
At the same time, the academic performance of East Mecklenburg High School also fell, which resulted in defendant's imposition of new leadership at the school in the mid 1990's. Plaintiff was identified by the outgoing principal as the "weak link" in the vocational education curriculum.
East Mecklenburg's new principal, Ron Thompson, was assigned in the summer of 1995. East Mecklenburg was rated as one of the worst performing schools within the school system based on its benchmark scores for the 1994-95 school year. It had a dysfunctional workforce development program and was suffering from racial and disciplinary problems with the students and the staff.
As plaintiff relates in her memorandum, her early career was highlighted by a number of accomplishments. She came to defendant school system with a masters degree and was employed from 1965 to 1968 as a guidance counselor. Between 1968 and 1975, she left the workforce to raise children and returned as an interim Vital Information for Education and Work ("VIEW") counselor. In 1976, she became a full-time VIEW counselor at East Mecklenburg, a position which she retained (although the title varied) through the 1995-96 school year. Plaintiff's job duties as a counselor included providing and coordinating career guidance and counseling activities, publicizing vocational education, promoting business/education partnerships, working with and monitoring teachers in the workforce development program, and being the advocate for the workforce development program at East Mecklenburg with the school system and the community.
Plaintiff's knee injury, which occurred in 1994, caused her to be on medical leave until near the end of the 1994-1995 academic year. It is plaintiff's contention that harassment based on such impairment began during the 1995-96 school year, when Mr. Thompson took over as principal, and continued until plaintiff went out on leave in September 1997.
It is undisputed that in June 1995, Mr. Thompson was informed by Dan Saltrick, Assistant Superintendent, and Greg Gift, Director of the Workforce Development Department for the Charlotte-Mecklenburg school system, that East Mecklenburg's workforce development program had deteriorated and that the school had lost several of the programs to other schools. Mr. Thompson testified that he was told by Mr. Hawley (the outgoing principal) that plaintiff "had been of little assistance and that he should have moved for her to be replaced in that position as the IEC [Industrial Education Coordinator] Coordinator because he felt strongly that a lot of the problems in the vocational — in the workforce development was attributed to the fact that Ms. Bailey was not doing the job that she should be doing." Thompson Dep., at 46 (errors in original).
At the start of the 1995-96 school year, East Mecklenburg did an instructional audit of plaintiff's workforce development program in conjunction with Mr. Gift and East Carolina University. That audit revealed significant problems with many of the programs, including the computer science, auto mechanics and business programs. Mr. Thompson testified that in October or November 1995, Mr. Gift told him that plaintiff was the significant cause of the problems with the workforce development program at East Mecklenburg.
As plaintiff admits in her brief, Mr. Thompson expressed concern to her in August 1995 about the direction of the school's vocational program. In January 1996, Mr. Thompson and assistant principal Mark Nixon met with plaintiff for a midyear evaluation. When asked what she had accomplished or done during the first half of the school year, plaintiff responded that she had done nothing. At that meeting, Mr. Thompson directed plaintiff to turn in monthly reports detailing her work efforts and also turn in a program of work that detailed her work plan and specific goals for the remainder of the year. He placed her on remediation and gave her specific goals on which to work for the remainder of the year. Plaintiff turned in the required reports, and although he read those reports, Mr. Thompson does not recall ever discussing with or communicating to plaintiff his concerns about her progress.
A number of incidents occurred toward the end of the 1996 school year. Foremost, peers detected the odor of alcohol about plaintiff's person while she was at work. On the second occasion, Mr. Thompson required plaintiff to submit to a test, which revealed a blood-alcohol level of .02. Plaintiff later admitted to being an alcoholic and successfully completed a substance-abuse program offered by defendant. Plaintiff also failed to administer properly a standardized test to students, which invalidated the results and caused a delay in the progression of the students to another course of study. Finally, plaintiff failed to secure enough "judges" for presentation of senior essays. Plaintiff argues that the latter failure was de minimis. Plaintiff's performance during that school year resulted in her first unsatisfactory performance evaluation.
It is undisputed that at the close of the 1995-96 school year, Mr. Thompson transferred plaintiff from counseling to teaching social studies based on what he perceived as plaintiff's inability to perform competently her duties as counselor/and or IEC. While plaintiff had not taught since 1964, Mr. Thompson returned her to the classroom based on her current certification to teach social studies.
Plaintiff's performance as a teacher, as observed by several individuals, was below standard or unsatisfactory in most of the major functions of the teaching position. Mid-year evaluations identified performance concerns, which were not remediated by the end of the 1996-97 school year. Plaintiff's summative evaluation indicated that her performance for the year was unsatisfactory in the key areas of management of instructional time, management of student behavior, instructional presentation, instructional monitoring, instructional feedback, and facilitating instruction. The evaluation further indicated that her performance was below standard in the areas of communicating within the educational environment and performing noninstructional duties.
As a result of plaintiff's continued performance problems, she was notified by Gwen Bradford, Executive Director of Human Resources, that she was being placed on conditional status and needed to show improvement in several key teaching functions. At the beginning of the 1997-98 school year, Mr. Thompson and Myra Rackley, the new Assistant Principal for Instruction at East Mecklenburg, developed an improvement plan to facilitate plaintiff's effectiveness in the classroom. The improvement plan, which noted areas of concern, outlined goals/strategies, and provided completion dates for correcting those areas of concerns, was presented to plaintiff in September 1997. In her brief, plaintiff notes the improvement plan was criticized within the school district due to a concern that it might be overwhelming for plaintiff and needed to contain support mechanisms. Plaintiff also points out that she did not receive the plan until one month after she reported for that school year. Plaintiff re-injured her knee during the fall of 1996. She contends that a student slammed her against a wall; the school determined that the student accidently hit plaintiff with a classroom door which plaintiff was trying to shut and the tardy student was trying to open. It was during the 1996-1997 school year that plaintiff contends she became aware of harassment based on her knee impairment:
(1) Shortly after meeting plaintiff in 1995, Mr. Thompson asked her whether she could walk well enough on tours for local companies she conducted as the school's IEC. During the conversation, Mr. Thompson lifted the pants leg on both legs to reveal his own scars from former knee injuries, which were similar to plaintiff's. Plaintiff testified that she was "taken aback" and offended by Thompson revealing his scars;
(2) In response to the incident with the student in October 1996, Mr. Thompson went to plaintiff's room to check on her physical health. Mr. Thompson again pulled up his pants leg to reveal his own knee injury and told plaintiff she could either go home or to the nearest workers' compensation site;
(3) In November 1996, Ms. Yardley Hunter, an assistant principal at East Mecklenburg, entered plaintiff's classroom and twice ordered her to get up on a chair and correct the time on her clock. Due to her knee injury, plaintiff knew that such a task would likely be painful and asked if one of her students could change the clock instead. Hunter said no. Later that day, an East Mecklenburg janitor changed the clock. Hunter later threatened to write plaintiff up for insubordination if she did not just "shut up" about it;
(4) During the fall of 1996, plaintiff had hall duty, which required her to monitor students in the school media center before school and during class changes. The location of the library caused her to be tardy to her own classes, and the walk from her classroom aggravated her disability. She approached Mark Nixon about changing her hall duties. He flatly refused her request. After complaining to Thompson, plaintiff finally had her hall duty changed;
(5) In the spring of 1997, while plaintiff was teaching class standing on the mat that helped decrease the discomfort in her knee, Nixon entered her class. In front of her students, Nixon asked, "What do you have this for Ms. Bailey? Something to wipe your feet on." Plaintiff regarded the statement as an indignity, but did not respond;
(6) In the fail of 1997, East Mecklenburg conducted a practice fire drill. The drills required teachers to escort students outside. During the drill, Hunter told plaintiff, "If you cannot walk any faster than that, then you don't need to be here." Plaintiff believed that "here" clearly meant East Mecklenburg;
(7) In one of their first conversations, Mr. Thompson asked plaintiff when she was going to retire from teaching. At her mid-year evaluation, he again asked her when she was going to retire. Plaintiff told him she needed to meet certain financial obligations before retiring and that she had no plans to retire immediately. When she finished, Mr. Thompson again asked her when she was going to retire;
(8) In April, 1997, school maintenance removed the ceiling from plaintiff's classroom. Air conditioning vents fell to the floor on two occasions, during one of which plaintiff was nearly struck. When she told Mr. Thompson that she had seen rats in the area, he told her she was hallucinating;
On September 25, 1997, plaintiff requested and was placed on short-term disability leave because of her bipolar disorder and depression. She retired, effective July 1, 1999 (after this action was filed). Plaintiff admits that she was unable to perform the essential functions of her position, with or without reasonable accommodation, from September 25, 1997, to the time she retired.
When plaintiff returned to work in 1995 after knee surgery, Dr. David Kingery, her treating physician, indicated that plaintiff "seems capable of doing most activities of her previous job. Her long term limitations would be no excessive stair climbing, no recurrent squatting in her work." On the return-to-work authorization, the records indicate that plaintiff could return with modified duties and certain restrictions, namely, no excessive stair climbing, no repetitive squatting, and no ladder climbing. Her doctor also prescribed floor pads for her work space. For workers' compensation purposes, plaintiff was rated by her physician as having a 20 percent permanent partial impairment of her leg. As discussed above, plaintiff re-injured her knee while at work in October 1996. After that incident, she was seen again by Dr. Kingery, who recommended that "it would be helpful for [plaintiff] to have brief, five minute or so breaks every 1-2 hours, in her work as a teacher."
In July 1997, medical records were received by defendant and disclosed that plaintiff had "excellent range of motion of the knee, minimal patellofemoral crepitance and symmetric strength," and "patellofemoral arthritis." The following restrictions were recommended: "Ms. Bailey would benefit from avoidance of prolonged standing; intermittent breaks between long periods of standing would control her knee symptoms." Plaintiff's testimony is consistent with those records. Further review reveals that pain and discomfort associated with plaintiff's knee injury are avoided by her simply changing positions or using a cane in unfamiliar places.
IV. Discussion
A. Claims Made Under the ADA
A cause of action for discrimination in employment based upon disability is established where a plaintiff demonstrates that he or she (1) is an individual with a disability; (2) is otherwise qualified to perform job requirements, with or without reasonable accommodation; and (3) was discharged solely by reason of a handicap. Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); 42 U.S.C. § 12112(a). To satisfy the first element, plaintiff must show that she was an individual with a disability. Plaintiff can satisfy that requirement by showing that she has an impairment that substantially limits one or more of the major life activities, had a record of a disabling impairment, or was regarded by her employer as having such an impairment. 42 U.S.C. § 12102(2).
The ADA requires a plaintiff to show that he or she was discharged solely by reason of a handicap. Doe v. University of Maryland Medical Sys. Corp., supra. The ADA is not a panacea for all health-related issues in the workplace and only provides a remedy for qualified workers with disabilities for whom reasonable accommodations are not made.
B. Plaintiff's Burden to Make Out a Prima Facie Case
On summary judgment, plaintiff has an affirmative burden of presenting evidence that would establish a prima facie case under the ADA. First, plaintiff must present evidence that she has a physical or mental impairment that substantially limits one or more of her major life activities, has a record of such an impairment, or is regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff cannot satisfy this burden.
1. Major Life Activities
Plaintiff may satisfy her initial burden by coming forward with evidence that her knee injury substantially limited one or more of life's major activities, which include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i).
[A claimant is "substantially limited" only if she is] significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1)(ii).
In determining whether the impairment crosses the threshold, a court considers (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or expected permanent or long-term impact, resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).
It is undisputed that at the relative time, plaintiff's knee injury imposed limitations on her daily routine; however, none of those restrictions "significantly limited" a major life activity. Plaintiff's knee-related restrictions included no excessive stair climbing, no ladder climbing, no squatting, and no standing or sitting for prolonged periods of time without intermittent breaks for five to ten minutes. She also, on occasion, used a cane to walk, but could and did walk without such assistance, and she took prescribed pain medication for her knee symptoms.
In determining whether a person has a disability, courts consider the limitations the impairment places on the activities of daily living, as well as any mitigating measures that are being employed. Sutton v. United Airlines, Inc., 527 U.S. 471(1999). The evidence presented reveals that at the relative time, plaintiff's knee pain was managed with occasional use of a cane, taking prescribed pain medication, and occasionally changing sitting and standing positions. Such evidence indicates that plaintiff's impairment was managed with conservative measures that, when employed, were effective.
Consideration of the individual limitations placed on plaintiff by her doctors does not reveal that her knee impairment substantially limited any major life activity. Inability to climb a ladder is not a major life activity. Rogers v. International Marine Terminal, Inc., 87 F.3d 755, 758 n. 2 (5th Cir. 1996). As to the limitations regarding walking, standing, sitting, or squatting, "moderate difficulty experienced while walking does not rise to the level of a disability." Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999). Indeed, courts have held repeatedly that people with knee pain post-injury and who have even greater limitations than this plaintiff are not disabled, as that term is used under the ADA. See Vass v. Resiter Thesmacher Co., 79 F. Supp.2d 853, 860-61 (N.D. Ohio 2000).
In determining whether plaintiff has presented evidence that would carry her burden of showing that she was disabled, the undersigned has also considered the limitations in combination and the evidence presented concerning the impact of plaintiff's knee injury on her routine of daily life. In the context of Social Security disability, Honorable K. K. Hall, United States Circuit Judge, in announcing and concurring in the judgment of the Court of Appeals for the Fourth Circuit in Mickles v. Shalala, ___ F.3d ___, No. 93-1891 (4th Cir. July 18, 1994), held, as follows:
This refreshing mode of analysis is precisely what I believe our cases have been striving for. The only fair manner to weigh a subjective complaint of pain is to examine how the pain affects the routine of life.
Id., Slip Op., at 6. Review of the record reveals no evidence that plaintiff's knee injury has resulted in the requirement of assistance to shop, drive, care for herself, or maintain her household. While plaintiff has pointed to the impact of her limitations on the performance of her job as a teacher and testified that a teacher needs to stand most of the time to maintain control of the classroom, when the major life activity at issue in an ADA case is working, an employee's inability to perform a particular job cannot constitute a substantial limitation. The phrase "substantially limits" means that the impairment must significantly restrict an individual's ability to perform a wide range of jobs.
Halperin v. Abacus Technology Corp., 128 F.3d 191, 199 (4th Cir. 1997). Plaintiff has not shown that her knee injury substantially limits any major life activity.
2. A Record of Disability
Plaintiff next contends that she is disabled under Section 12102(2), in that she has a record of a physical or mental impairment that substantially limits one or more of her major life activities, i.e., that she has received a 20 percent knee disability rating for purposes of workers' compensation. The restrictions which accompanied that rating included no excessive stair climbing, no repetitive squatting, and no ladder climbing, and later records state that it would be helpful for plaintiff "to have brief, five minute or so breaks every 1-2 hours, in her work as a teacher" and that "Ms. Bailey would benefit from avoidance of prolonged standing; intermittent breaks between long periods of standing would control knee symptoms."
While plaintiff has a record evincing restrictions due to injury, that record does not amount to "a record of a disability" within the meaning of the ADA. Simply having a disability rating for purposes of workers compensation is insufficient to meet the ADA "record-of-a-disability" standard:
The fact that an individual has a record of being a disabled veteran, or of disability retirement, or is classified as disabled for other purposes does not guarantee that the individual will satisfy the definition of "disability" under Part 1630. Other statutes, regulations and programs may have a definition of "disability" that is not the same as the definition set forth in the ADA and contained in part 1630. Accordingly, in order for an individual who has been classified in a record as "disabled" for some other purpose to be considered disabled for purposes of part 1630, the impairment indicated in the record must be a physical or mental impairment that substantially limits one or more of the individual's major life activities.
29 C.F.R. Pt. 1630, App. § 1630.2(k). As discussed in the preceding section, plaintiff's impairments simply do not substantially limit one or more of her major life activities.
Plaintiff's record also contained the medical leave she required when she first injured her knee and stayed out of work for several months to recuperate. In Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 645-46 (2d Cir. 1998), cert. denied, 526 U.S. 1018(1999), the court faced a situation similar to that presented here. Colwell was hospitalized for 30 days following a cerebral hemorrhage, remained at home and out of work for six months because of the impairment, and then returned to work with light-duty restrictions for seven years. The court held, however, that Colwell did not have a record of a disability under the ADA:
[A] jury could reasonably find that [plaintiff] was unable to work during his recuperation from the hemorrhage (one month in the hospital and six months at home), but a seven-month impairment of his ability to work, with the non-particularized and unspecific residual limitations described on his police work, is of too short a duration and too vague an extent to be "substantially limiting."
Id. Plaintiff has not shown that she has record of disability.
Finally, even if a record of disability had been shown, plaintiff would also be required to show that those she alleged harassed her or created a hostile work environment knew of her record of disability. The undisputed evidence shows that the alleged harassers did not even know what her medical records provided or that plaintiff had any type of disability that substantially limited any major life activity.
3. Regarded as Disabled
Review of the record submitted reveals no evidence that the alleged harassers, regardless of plaintiff's actual impairments or her record, regarded her as being disabled.
Having considered the three methods for plaintiff to satisfy her burden of showing that she was disabled and, therefore, has standing to bring this action under the ADA, and finding that she has not satisfied that burden, the undersigned must recommend that defendant's Motion for Summary Judgment be granted.
C. Harassment or Hostile-Work-Environment Claim
While firmly believing that plaintiff's claim does not pass threshold consideration, the undersigned will also consider whether genuine issues of material fact exist that would otherwise allow this matter to proceed to trial on the substantive claim made. From the outset, it is unclear whether a cause of action exists in the context of a claim of harassment or the creation of a hostile work environment under current ADA law. As the court did in Sheflett v. GE Fanuc Automation Corp., No. 97-1687, 1998 WL 386116 (4th Cir. 1998) (unpublished), the undersigned will assume, without deciding, that plaintiff has stated a valid cause of action.
1. Exhaustion of Administrative Remedies
A fair reading of plaintiff's charge of discrimination filed with the EEOC does not disclose that she ever claimed that defendant had created a hostile work environment or harassed her based on her knee injury in violation of the ADA.
[O]nly those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.
Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). Inasmuch as plaintiff failed to fairly present such contention administratively and this court's jurisdiction is dependent upon exhaustion of administrative claims, the undersigned is compelled to recommend that summary judgment be granted on the claim.
2. Substantive Consideration
Even if this court were to go the next step and consider plaintiff's substantive allegations of harassment, they would be insufficient to survive summary judgment. As discussed above in the factual background, plaintiff has outlined a number of incidents which she believes constitute harassment based on her knee injury: (1) providing her a classroom with missing panels in the ceiling while construction was taking place; (2) observing her teaching on numerous occasions to evaluate her teaching performance; (3) treating a student's alleged assault on her in October 1996 as an accident; (4) assigning her an overload of students to teach for the spring semester of the 1996-97 school year; (5) requiring her to prepare two or three lesson plans each semester; (6) rating her job performance as below standard or unsatisfactory; and (7) providing her with an improvement plan in the fall of 1997.
In addition, plaintiff points to six instances, spread over a great deal of time, where administrators at East Mecklenburg made comments which she considered to be related to her knee injury and harassing. Plaintiff testified that at the start of the 1995-96 school year, Mr. Thompson asked her about her knee injury and whether she could walk on company tours as an IEC. Mr. Thompson also showed plaintiff scars from his own knee injuries. Plaintiff testified that she did not feel harassed by Mr. Thompson asking about her ability to walk on those company tours and, in response to the question, stated that she could do the tours, but she would walk slower.
She testified that she felt harassed by Mr. Thompson showing her his knee injury. Mr. Thompson testified, as follows, regarding that conversation:
I understand you suffered a knee injury similar to the one that I have. "And so I think I — at that point it was a severe patella injury where my knee cap was separated. And so I commented to her about we probably had the same sort of injury and how painful that. . . . That was the extent of the conversation. I think at that point I maybe showed her both scars on my left knee and right knee."
Thompson Dep., at 118.
In relation to the 1996 re-injury of her knee, plaintiff testified that she showed Mr. Thompson that her knee had been injured again. In response, plaintiff testified that Mr. Thompson told her that she could go home or to the nearest workers's compensation site and, again, showed her his knee injury.
Plaintiff also testified that during the fall semester of the 1996-97 school year, she told Mark Nixon that she wanted another duty because the one to which she was assigned — monitoring students in and around the media center before school and between classroom changes — was causing her to be late to her class and was hurting her knee due to the fact that she had to walk to and from the media center and her classroom several times a day. Plaintiff testified that another teacher who did not have any disability known to plaintiff was assigned the same duty and had approximately the same walking distance as plaintiff. Plaintiff further testified that Mr. Thompson changed her assignment soon after she complained and that she believed he did so as an accommodation for her knee disability.
Plaintiff further testified that in November 1996, Yardley Hunter told her to correct the time shown on the clock on a wall in her classroom. Plaintiff refused to do so because she would have to stand on a chair, and one of the janitors at East Mecklenburg changed the clock at her request. Plaintiff contends that such encounter resulted in the exchange of harsh words.
In the Spring of 1997, plaintiff had a work pad on the floor of her classroom that she used to cushion the strain on her knee when she stood. She testified that Mr. Nixon asked her, in front of her class, "What do you have this for, Mrs. Bailey? Something to wipe your feet on." Plaintiff regarded this comment as a "slur"; however, she admitted that prior to her purchase of the mat, she had never seen one before, she purchased it at Sam's Warehouse, and "it wasn't a special kind of mat." Plaintiff admits that neither Mr. Nixon nor any other administrator asked her to remove it. Plaintiff has presented no evidence to show that Mr. Nixon knew what the purpose of the mat was prior to making the comment.
Plaintiff testified that, in August or September 1997, Ms. Hunter said to her, during a fire drill, "If you cannot walk any faster than that, then you don't need to be here." Plaintiff testified that fire drills are timed and that she was required to escort students outside during a fire drill.
3. Discussion
To be actionable, harassment must be "sufficiently severe or pervasive enough to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21(1993). The work environment must be both objectively hostile, in that a reasonable person would find it hostile, and subjectively hostile, in that the victim perceives it to be hostile. Id., at 23. Without doubt, plaintiff perceived her work environment as hostile. The issue, therefore, becomes whether a reasonable person would consider such a work environment to be hostile. The answer is no.
In determining whether a work environment is hostile, the court must consider all the circumstances, including the frequency and severity of the conduct, whether it is physically threatening or merely an offensive utterance, and whether it interferes with the employee's work. Plaintiff can point to only six instances where administrators at East Mecklenburg allegedly subjected her to "verbal" harassment because of her alleged disability. None of the incidents, when viewed objectively, are demeaning or offensive, and none are severe enough to be actionable. Indeed, while plaintiff may have been offended by Mr. Thompson showing her the scars from his knee surgery, an objectively reasonable person would not be offended, inasmuch as the only reasonable implication that can be drawn is that a supervisor was attempting to empathize and show compassion with the employee's situation.
Not only are the alleged acts not severe, they are also not pervasive. First, there simply is little, if any, temporal proximity between the alleged acts of harassment. The shear lack of incidents — only six over the course of several school years — speaks volumes to the nonexistence of a claim, rather than to the existence of one. As to the merits of those six incidents, plaintiff has clearly shown that (1) there was a lack of knowledge of plaintiff's impairment by those who allegedly offended her, (2) other teachers were exposed to similar classroom conditions, (3) those conditions were necessitated by enrollment and limited staff in that curriculum, and (4) judgment calls were made in determining whether plaintiff was intentionally assaulted or unintentionally injured by a student. Plaintiff has, in no regard, shown that the legitimate reasons given by defendant are in any way pretext for discrimination.
Adopting herein the reasoning used in Title VII cases, the ADA was "not designed to create a federal remedy for all offensive language and conduct in the workplace." Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S.Ct. 70(1996). Rather, its purpose is to protect a "reasonable person" from an environment in which abuse is sufficiently severe or pervasive as to alter the conditions of his or her employment. Id. at 753 (citing Harris v. Forklift Sys., Inc., supra, at 19, and Meritor Say. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Plaintiff has also alleged a number of grievances with classroom assignment, reassignment to a teaching position, and many other matters which are not appropriate for consideration, inasmuch as they were not made within 180 days of occurrence. Taking into consideration all of the evidence presented, plaintiff cannot present a prima facie case of harassment or hostile work environment under the ADA based on her knee injury. The undersigned, therefore, must recommend to the district court that defendant's Motion for Summary Judgment be granted, inasmuch as no genuine issue of material fact remains on plaintiff's harassment/hostile-work-environment claim, and defendant is entitled to entry of judgment in its favor as a matter of law.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant's Motion for Summary Judgment be ALLOWED for the reasons discussed above, and that JUDGMENT be entered in favor of defendant providing that plaintiff's action be dismissed with prejudice and that plaintiff have and take nothing of defendant.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to defendant's Motion for Summary Judgment (#15).