United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kevin F. McDonald, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Patricia Ann
Barnes (“Barnes”), proceeding pro se, alleges
that Verizon Wireless Corporation (“Verizon”)
violated her rights under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq.
(See Compl. generally, ECF No. 1.) Verizon filed a
motion for summary judgment. (Def. Mot. Summ. J., ECF No.
45.) Magistrate Judge McDonald recommends granting
Verizon’s motion for summary judgment. For the reasons
provided below, the court adopts the magistrate judge’s
Report and Recommendation and grants Verizon’s motion
for summary judgment.
Factual and Procedural Background
was employed as a customer service trainer at Verizon’s
call center in Greenville, South Carolina. (Resp. Opp’n
Def. Mot. Summ. J. Ex. 1 (Barnes Aff. ¶ 2), ECF No.
55-1.) In May 2012, when Barnes was on a medical leave of
absence for a planned surgical procedure, she experienced an
unrelated medical emergency, which required several
additional months of recovery. (Def. Mot. Summ. J. Ex. 2
(Barnes Dep. 37-40), ECF No. 45-2.) Initially, Barnes
received short-term disability under Verizon’s
disability plan, administered by Metlife. (Id. Ex. 2
(Barnes Dep. 37-40), ECF No. 45-2.) In November 2012, Barnes
obtained long-term disability status based on her continued
inability to work. (Id. Ex. 2 (Barnes Dep. 37-40),
ECF No. 45-2.) Subsequently, Barnes’ condition began to
improve and in January 2013, she was able to return to work
under a Work Place Arrangement (“WPA”), which
granted Barnes several accommodations. (Id. Ex. 2
(Barnes Dep. 49-50, 54-58), ECF No. 45-2.) In April 2013,
after several months of successfully working, Barnes and four
other trainers were informed about a new certification
program required for trainers, which Barnes does not dispute
was an essential job function of the trainer
position. (Id. Ex. 2 (Barnes Dep.71-75),
ECF No. 45-2; id. Ex. 3 (Barnes Dep. Ex. 6), ECF No.
45-3; id. Ex. 7 (Pl. Resp. to RFA ¶ 3), ECF No.
45-7; Resp. Opp’n Def. Mot. Summ. J. 6, ECF No. 55.)
the course of the next three months, Barnes was unable to
successfully complete one portion of the new certification
program due to cognitive issues resulting from a series of
“mini-strokes, ” which form the basis for
Barnes’ disability discrimination allegations against
Verizon. (Def. Mot. Summ. J. Ex. 2 (Barnes Dep. 96-97, 102,
106-7, 151-53, 166-67, 186-87, 201-03), ECF No. 45-2;
id. Ex. 9 (Shields Aff. ¶¶ 12, 14, 17),
ECF No. 45-9; id. Ex. 7 (Pl. Resp. to RFA
¶¶ 22-24), ECF No. 45-7; Resp. Opp’n Def.
Mot. Summ. J. Ex. 1 (Barnes Aff. ¶¶ 11-18), ECF No.
55-1.) Barnes admitted on various occasions that her
performance did not warrant a successful completion status.
(Def. Mot. Summ. J. Ex. 2 (Barnes Dep. 102-05, 132-37), ECF
No. 45-2; id. Ex. 7 (Pl. Resp. to RFA ¶¶
24, 26), ECF No. 45-7.) Further, the record reflects and
Barnes admitted that her supervisors provided multiple
opportunities to retake the certification program, prepared
development plans and performance improvement plans, offered
face-to-face feedback, and advised her on methods to improve.
(Id. Ex. 2 (Barnes Dep. 101, 109-14, 120-22, 151-53,
165-66, 172-73), ECF No. 45-2; id. Ex. 9 (Shields
Aff. ¶¶ 13-14, 17), ECF No. 45-9; id. Ex.
7 (Pl. Resp. to RFA ¶¶ 21, 23, 25), ECF No. 45-7.)
Moreover, Barnes admitted that her supervisors never said she
could not continue attempting to complete the certification
program. (Id. Ex. 2 (Barnes Dep. 172), ECF No.
about June 12, 2013, Barnes voluntarily left her employment
with Verizon, and although Verizon technically retained her
as an employee, Barnes was continuously out of work for the
following six months and made no attempt to communicate with
Verizon about her work status. (Id. Ex. 2 (Barnes
Dep. 168-73, 191-92), ECF No. 45-2; id. Ex. 7 (Pl.
Resp. to RFA ¶¶ 32-33), ECF No. 45-7; id.
Ex. 8 (Bryson Aff. ¶¶ 16-17), ECF No. 45-8.) On or
about December 12, 2013, after being contacted by one of her
supervisors, Barnes stated she no longer needed any medical
accommodations, because she was permanently unable to work
and wished to retire with immediate effect. (Id. Ex.
2 (Barnes Dep. 196-97), ECF No. 45-2; id. Ex. 8
(Bryson Aff. ¶ 18), ECF No. 45-8.) On or about October
16, 2013, Barnes’ long-term disability status was
denied, but was reinstated in June 2014 and made retroactive
to January 29, 2013, which was the same day that Barnes
initially returned to work following her original leave of
absence. (Def. Mot. Summ. J. Ex. 2 (Barnes Dep. 198-200), ECF
No. 45-2.) Barnes currently remains on long-term disability,
and she has not sought other employment based on the
limitations of her medical condition. (Id. Ex. 2
(Barnes Dep. 198-200), ECF No. 45-2; id. Ex. 7 (Pl.
Resp. to RFA ¶ 43), ECF No. 45-7.)
April 24, 2015, Barnes filed a complaint against Verizon
alleging discrimination on the basis of her disability in
violation of the ADA. (Compl., ECF No. 1.) Verizon filed the
instant motion for summary judgment on January 19, 2016.
(Def. Mot. Summ. J., ECF No. 45.) Barnes filed a response to
the motion for summary judgment on March 28, 2016. (Resp.
Opp’n Mot. Summ. J., ECF No. 55.) Verizon filed a reply
on April 7, 2016. (Reply Supp. Def. Mot. Summ. J, ECF No.
57.) On June 24, 2016, the magistrate judge issued his Report
and Recommendation, recommending Verizon’s motion for
summary judgment be granted. (Report & Recommendation,
ECF No. 60.) After being granted one extension of time to
respond, Barnes filed objections to the Report and
Recommendation on July 26, 2016. (Objections, ECF No. 70.)
This matter is now ripe for review.
Discussion of the Law
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party’s right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of Barnes’ objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge’s Report and Recommendation, or
merely restate her claims. However, the court was able to
glean two specific objections. First, Barnes “objects
to certain factual findings and omissions” in the
Report and Recommendation. Barnes objects that the complete
details of the WPA were omitted by Verizon, which would
establish that she was covered by the WPA at the onset of her
cognitive disability. (Objections 3, ECF No. 70.) Next,
Barnes objects that the complete details of her successfully
completing work requirements and training activity from
January 2013 to April 2013 were omitted. (Id. 3-4,
ECF No. 70.) Finally, Barnes objects to her
supervisors’ allegations that she did not provide them
with information about her cognitive disability on May 10,
2013. (Id. 4-5, ECF No. 70.)
establish a prima facie case for failure to accommodate, [the
plaintiff] must show: ‘(1) that [she] was an individual
who had a disability within the meaning of the statute; (2)
that the employer had notice of [her] disability; (3) that
with reasonable accommodation [she] could perform the
essential functions of the position; and (4) that the
employer refused to make such accommodations.’”
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 579 (4th Cir. 2015) (quoting Wilson v. Dollar Gen.
Corp., 717 F.3d 337, 345 (4th Cir. 2013) (brackets and
ellipsis omitted)). The magistrate judge recommends granting
summary judgment, because Barnes fails to establish the third
and fourth elements. None of Barnes’ objections to the
alleged factual findings or omissions are relevant in
establishing the third or fourth element of her claim.
Regardless of whether a WPA was in effect or whether Barnes
was successfully able to complete or perform some essential
functions, the record indicates that (1) Barnes voluntarily
left her employment with Verizon in June 2013, (2) she
admitted that she could not perform one of the essential
functions of her occupation, and (3) her supervisors gave her
multiple opportunities to complete the certification program
and provided guidance and assistance throughout the process.
Further, the Report and Recommendation accepts Barnes’
allegations that she notified her supervisors of her
cognitive disability in May 2013, but this only supports the
second element of her prima facie case rather than the third
or fourth elements. Based on the foregoing, Barnes’
objection on the basis of allegedly erroneous factual
findings and omissions is without merit.
Barnes objects to the finding in the Report and
Recommendation that she has failed to establish all four
elements of her prima facie case for failure to accommodate.
Under the third element, Barnes claims that her training
position “is comprised of many essential job functions
[that Verizon] could have allowed without posing a
hardship.” (Objections 6, ECF No. 70.) However, as the
magistrate judge noted, “removal of an
essential job function is not an accommodation capable of
making a disabled employee a ‘qualified
individual.’” (Report & Recommendation 16,
ECF No. 60.) An essential job function, by definition, is one
that must be performed, as the “ADA does not require an
employer to reallocate essential job functions or assign an
employee ‘permanent light duty.’”
Howell v. Holland, No. 4:13-CV-00295-RBH, 2015 WL
751590, at *8 (D.S.C. Feb. 23, 2015) (unpublished) (internal
quotation marks omitted) (quoting Crabill v. Charlotte
Mecklenburg Bd. of Educ., Nos. 10-1539, 10-1553, 2011 WL
1491230, at *8 (4th Cir. April 20, 2011)).
the fourth element, Barnes claims that Verizon failed to
provide her with an accommodation, and instead, she only
received a performance improvement plan to have her
performance tested and evaluated. (Objections 7, ECF No. 70.)
As set forth above, the record indicates that Barnes
voluntarily left her employment with Verizon in June 2013 and
that her supervisors gave her multiple opportunities to
complete the certification program and provided guidance and
assistance throughout the process. Further, there is no
evidence that Verizon ever refused an accommodation for
Barnes. Moreover, Barnes has failed to propose any reasonable
accommodation that Verizon could have provided that would
have allowed her to successfully complete the certification
program. U.S. Airways, Inc. v. Barnett, 535 U.S.
391, 400 (2002) (finding the plaintiff bears the burden of
proving a reasonable accommodation). Based on the foregoing,
Barnes’ objection on the basis of the third and fourth
elements of her prima facie case is without merit.
the court adds that Barnes has made no attempt to explain the
inconsistency in her disability representations she offered
in pursuit of her long-term disability benefits, which she is
still receiving, and her claim that she is a “qualified
individual” capable of performing the essential
functions of her training position with Verizon.
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
806 (1999) (“[W]e hold that an ADA plaintiff cannot
simply ignore the apparent contradiction that arises out of
the earlier SSDI total disability claim. Rather, she must
proffer a sufficient explanation.”); E.E.O.C. v.
Greater Baltimore Med. Ctr., Inc., No. 11-1593, 2012 WL
1302604, at *6 (4th Cir. Apr. 17, 2012) (unpublished);
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