United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
this action, Plaintiff Deborah Clark
(“Plaintiff”) seeks recovery from her former
employer, School District Five of Lexington and Richland
Counties (“District”), claiming her employer
failed to provide a reasonable accommodation for her
disability in violation of the Americans with Disabilities
Act (42 U.S.C. §§12101, et seq.)
(“ADA”). ECF. No. 1. Specifically, Plaintiff
argues her dog, Pearl, should be allowed to accompany her to
work as a service dog for her Post-Traumatic Stress Disorder
and Panic Disorder with Agoraphobia. She also claims
violation of public policy and breach of contract due to the
District's failure to accommodate her disability.
Id. The matter is before the court on
Defendant's Motion for Summary Judgment, filed June 20,
2016. ECF No. 29. Plaintiff filed her response in opposition
on July 19, 2016. ECF No. 37. Defendant filed a reply on July
29, 2016. ECF No. 38.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(g), D.S.C., this matter was referred to United
States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation
(“Report”). On January 6, 2017, the Magistrate
Judge issued a Report recommending Defendant's motion for
summary judgment be granted as to the ADA claim, and the
court decline to exercise supplemental jurisdiction over the
state law claims. ECF No. 42. The Magistrate Judge advised
the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they
failed to do so. Plaintiff was granted an extension of time
to file objections to the Report (ECF No. 44), and filed her
objections on January 26, 2017. ECF No. 45. Defendant also
received an extension to file a reply (ECF No. 49) and did so
on February 23, 2017. ECF No. 51. This matter is now ripe for
conducting a de novo review as to the objections
made, and considering the record, the applicable law, and the
Report and Recommendation of the Magistrate Judge, the court
declines to adopt the Report. For the reasons below, the
court denies Defendant's motion for summary judgment on
the ADA and breach of contract claims, but grants summary
judgment on the violation of public policy claim.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The
court is charged with making a de novo determination
of those portions of the Report to which specific objection
is made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1). The court reviews
only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating “in the absence
of a timely filed objection, a district court need not
conduct a de novo review, but instead must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'”) (quoting Fed.R.Civ.P. 72
advisory committee's note).
Judgment is appropriate “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). On a motion for summary judgment, the
district court must “view the evidence in the light
most favorable to the nonmoving party.” Jacobs v.
N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th
Cir. 2015) (citing Tolan v. Cotton, 134 S.Ct. 1861,
1868 (2014) (per curiam)). “Summary Judgment cannot be
granted merely because the court believes that the movant
will prevail if the action is tried on the merits.”
Id. Therefore, the court cannot weigh the evidence
or make credibility determinations. Id. at 569. The
district court may not “credit the evidence of the
party seeking summary judgment and fail properly to
acknowledge key evidence offered by the party opposing that
motion.” Id. at 570. However, a party
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985). Therefore, “[m]ere unsupported
speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. National Ass'n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
following facts are presented in the light most favorable to
Plaintiff, the party opposing summary judgment.
1989, Plaintiff lived on Johns Island, South Carolina when
Hurricane Hugo hit the Charleston area. Plaintiff was trapped
with her husband and son in a closet during the hurricane,
which did major damage to her home. After this experience,
Plaintiff developed anxiety, panic attacks, and agoraphobia,
and believed she had Post-Traumatic Stress Disorder
(“PTSD”). Plaintiff Dep. 34:23 - 35:5; 36:20 -
37:16. As she has grown older, Plaintiff's PTSD has
worsened. Id. at 38:6-11. In 2010 through 2013,
Plaintiff began discussing her history and symptoms with her
son's psychiatrist, Dr. Darlene Moak. In 2013, Plaintiff
became a patient of Dr. Moak, who opined in a June 14, 2013
letter Plaintiff “fully meets criteria for both PTSD
and panic disorder with agoraphobia.” ECF No. 37-19 at
9, Moak letter.
at Alternative Academy
began employment with the District in the 2008-2009 school
year, as a special needs teacher at the Alternative Academy
(“Academy”) in Chapin, South Carolina. The
Academy had in place the Healing Species Program, a pet
therapy program for children with special needs. Plaintiff
participated in this program, utilizing animals in the
classroom to assist the children. ECF No. 37 at 6.
2011, Plaintiff adopted a Chihuahua puppy named Pearl.
Plaintiff became interested in training Pearl as a therapy
dog for use with children at school in the Healing Species
Program, and as a service dog for her anxiety and PTSD.
Plaintiff Dep. at 32:11-13. Before the 2011-2012 school year
began, Plaintiff and a colleague, Sharon Gray, approached
their new principal, Don Hardie, about bringing their dogs to
school as part of the Healing Species Program. Id.
at 32:1-33:2. Plaintiff also decided “around that
time” to train Pearl as a service dog for her PTSD.
Id. at 34:7-9. Pearl accompanied Plaintiff to school
for the 2011-2012 and 2012-2013 school years as a therapy dog
for the students. While at the school, Pearl wore a vest that
identified her as a therapy dog, earning a service dog patch
when she completed the requirements for a service dog.
Id. at 71:24-72:3. There is no evidence any student,
parent, or District employee complained about Pearl's
presence in the classroom. Id. at 154:1-5; ECF No.
37-23, Hefner Dep. 19:17-19.
Academy was to be moved to a new location to begin the
2013-2014 school year. In the spring of 2013, Mr. Hardie
announced in a faculty meeting that no dogs would be allowed
in the new location on the Spring Hill High School campus.
Plaintiff Dep. 118:2-9. Mr. Hardie provided the rationale as
including perception (“seeing teachers out walking a
dog, ” “Spring Hill High School parent's
(sic) perception of the dog, concerns with that
piece”), environment changes (schedule; being in an
enclosed, bigger school; better manicured grass; dog
excrement), and fairness to Spring Hill High School teachers.
ECF No. 29-3, Hardie Dep. 18:3-14; 60:11-61:17. After this
announcement, Plaintiff notified Mr. Hardie she needed Pearl
with her at school as a service dog. Hardie Dep. 58:4-9
Functions as Plaintiff's Service Dog
and her co-worker, Ms. Gray, trained Pearl, in accordance
with Delta Society standards, to respond to Plaintiff's
symptoms of anxiety and developing panic
attacks. Pearl was taught to stand her ground,
create a barrier between Plaintiff and others, and put
pressure on Plaintiff's chest or lick her hand. ECF No.
29-2, Plaintiff Dep. 64:13-68:12; 70:13-71:4.
Plaintiff's service dog, Pearl assists during her panic
attacks and anxiety. Pearl provides “deep
pressure” to Plaintiff's chest, and acts as a
physical buffer between Plaintiff and other people,
especially in tight spaces. Id. at 65:17-68:12.
Pearl is also able to “interrupt the process” of
Plaintiff's panic attacks, and “gives [Plaintiff]
something else to focus on.” Id. at 68:1-12.
Request for Accommodation
2013, Plaintiff contacted Dr. Angela Bain, Chief Human
Resources Officer for the District, to request “the
reasonable accommodation of bringing my service dog, Pearl,
to work with me during the 2013-2014 school year.” ECF
No. 37-4, Clark letter 6/12/13. Dr. Moak wrote a letter on
June 14, 2013, opining Plaintiff had PTSD and panic attacks
and that “forcing Ms. Clark to teach without the
assistance of her service dog will be profoundly detrimental
to her well being.” ECF No. 37-19 at 9, Moak letter
6/14/13. On July 18, Dr. Bain responded, requesting a meeting
with Plaintiff and noting additional information was needed
“to confirm a disability under the ADA and, if one
exists, the functional limitations of that disability as it
relates to your job performance and the need and
effectiveness of your requested accommodation.” ECF No.
37-5, Bain letter 7/18/13. Dr. Bain's letter noted the
District's position that Pearl did not meet the
definition of a “service animal” as defined in
Title II of the ADA, but was an “emotional support or
comfort dog, ” which was excluded from the ADA's
definition of a service animal. Id.
meeting between Plaintiff and Dr. Bain appears to have
occurred on August 5, 2013. On August 6, 2013, Plaintiff
wrote Dr. Bain to request a temporary accommodation of
bringing Pearl to school “while the additional
information you requested in our meeting yesterday is being
received and processed.” ECF No. 37-6, Clark letter
8/6/13. Plaintiff explained there were no students in the
school at that time, and she felt it necessary for Pearl to
accompany her so she could “set up her classroom and
become accustomed to the new environment.” Id.
Dr. Moak also sent another letter on August 6, 2013,
providing additional information about the tasks Pearl is
trained to do related to Plaintiff's PTSD: to provide
deep pressure during a panic attack, to “quietly hold
[her] place for up to five minutes, ” to “stand
and stay or sit and stay and brace [herself] in that
position, ” and “to hold [her] ground, preventing
people from making body contact with Mrs. Clark” and
reducing panic, enabling Plaintiff “to cope better with
the risk of close contact in the work place.” ECF No.
37-19, Moak letter 8/6/13.
request was apparently denied, and Plaintiff had a panic
attack at school the afternoon before students reported for
their first day. This attack was brought on because furniture
for her classroom had not been delivered and none of her
computers were operating. Mr. Hardie arrived and found
Plaintiff on the floor of her classroom, crying and asking
for Pearl. Plaintiff Dep. 85:10-86:10.
Bain responded to Plaintiff's request by letter on August
22, 2013, acknowledging the District's receipt of Dr.
Moak's August 2013 letter. ECF No. 29-4 at 20, Bain
letter 8/22/13. Dr. Bain, however, denied Plaintiff's
request, stating the District did not believe Pearl qualified
as a “service animal” under Title II of the ADA,
and further did not consider Pearl to be a reasonable
accommodation under the ADA, because Plaintiff was
“going to be in a school with students who may be
allergic to and/or afraid of dogs.” Id. The
letter suggested other proposed accommodations, such as
wearing a weighted vest or Plaintiff “being allowed to
environment upon the onset of a panic attack (with notice to
the administration so that arrangements for supervision of
[her] students can be made).” Id. The letter
also reminded Plaintiff her
essential job responsibilities include interaction with and
supervision of students, which can result in a ‘risk of
close contact.' Please be advised that if you believe
that your Panic Disorder with Agoraphobia will require you to
avoid interacting with students, you may not be otherwise
qualified for your position as a teacher.
than submitting a request for an alternative accommodation,
Plaintiff initiated the grievance process by writing Mr.
Hardie on September 3, 2013 and renewing her request to bring
Pearl to school. ECF No. 37-7, Clark letter 9/3/13. She noted
“last year I was allowed this ADA accommodation. . . .
Your denial of my request for this accommodation places me in
jeopardy.” Id. Mr. Hardie denied
Plaintiff's request by letter of September 10, 2013,
noting “[w]e are still concerned at this point of
having a dog on campus” because students “may be
allergic to and/or afraid of dogs, ” and therefore
“the District does not believe that your request is
reasonable.” ECF No. 37-8, Hardie letter 9/10/13.
appealed her grievance to Dr. Bain on September 23, 2013. Dr.
Bain, Plaintiff, and Winnie Brown (Coordinator for Certified
Personnel) met on October 1, 2013, for a level two, step one
grievance hearing. In this meeting, Plaintiff stated she was
unwilling to try the proposed alternative accommodation, a
weighted vest. ECF No. 29-2, Plaintiff Dep. 135:7-13; ECF No.
29-4, Bain Dep. 73:22-75:10. Dr. Bain expressed concern with
student distraction and felt this would be lessened with the
vest. Bain Dep. 75:3-10. Dr. Bain denied the
grievance in a memorandum on October 4, 2013. ECF No. 29-4 at
17. In her memorandum, Dr. Bain noted no ADA accommodation
had been previously granted. She explained the new school has
a “larger population of students [and therefore] more
risk of students being distracted and afraid of the dog, and
there are more students who would be allergic to a
dog.” Id. Dr. Bain also suggested
alternative accommodations, such as a deep pressure vest or
other weighted clothing, and Plaintiff could
“prearrange with administration that you remove
yourself from an environment upon the onset of a panic attack
provided you secure supervision of your students.”
then appealed to Dr. Stephen Hefner, Superintendent, on
October 23, 2013. In response, Plaintiff, Dr. Bain, and Mark
Bounds (acting superintendent) met on November 6, 2013. Mr.
Bounds also denied Plaintiff's request in a memorandum on
November 20, 2013. ECF No. 37-9. In that memorandum, Mr.
Bounds noted although Plaintiff stated she was allowed the
ADA accommodation the prior year, neither the school nor
district received an ADA request for accommodation that year.
He explained Plaintiff was allowed to bring the dog under the
Healing Species Program at first, and in her social studies
class “because the Academy for Success was at an
isolated location.” He further noted Plaintiff was not
willing to consider other options for accommodation, but was
able to “successfully perform all of your duties and
responsibilities without your dog. You have demonstrated the
ability to accommodate for your condition(s) successfully
without your pet.” Id. In denying
Plaintiff's grievance and affirming the decisions from
lower levels of grievance process, he stated “we are
happy to work with you to try other reasonable accommodations
which might assist you.” Id.
December 2, 2013, Plaintiff requested an opportunity to
appear before the Board of Trustees concerning her grievance.
Board Policy GBK -Staff Concerns, Complaints/Grievances
provides the Board has discretion to allow a grievant to
appear before the Board or to uphold the Administration's
decision based on documentation. See ECF No. 29-5 at
December 16, 2013, the District's attorney, Andrea White,
wrote Plaintiff's attorney Allen Nickles, explaining
“the District is interested in reaching an amicable
resolution in reference to Ms. Clark's request that she
be permitted to bring her dog to school with her as an
accommodation for what Ms. Clark asserts is a disability
covered by the Americans with Disabilities Act.” Ms.
White informed Mr. Nickles of the District's suggested
alternative accommodation, the weighted vest, that was
declined by Plaintiff. Because Plaintiff previously stated
she did not have the financial means to pay to visit her
doctor to discuss alternative accommodations, Ms. White noted
“the District is willing to select a psychologist and
pay for the cost of an independent evaluation of Ms. Clark,
for the purpose of determining the specific ways in which Ms.
Clark's PTSD impacts her in the workplace and whether her
dog is the only reasonable accommodation to deal with that
impact.” Id. The letter provided if the
psychologist opined having a therapy/service dog at work is
the only reasonable workplace accommodation for Ms. Clark,
the District would request information indicating Pearl is
trained to provide that accommodation. If Plaintiff could
show Pearl is so trained, “the District will allow the
accommodation as necessary for Ms. Clark to be able to
function at work.” Id.
record does not reveal that the suggested independent
evaluation took place. However, Plaintiff's psychiatrist,
Dr. Moak, thereafter wrote a letter opining the suggested
accommodation of a weighted vest would “not provide the
responsiveness to changes in psychological and emotional
states that a service dog can.” ECF No. 29-5 at 13,
Moak letter 1/17/14. Dr. Moak continued to
“strongly” recommend Plaintiff be allowed to have
Pearl at work. Dr. Moak outlined how not having Pearl
negatively affected Plaintiff, and concluded “I believe
that not allowing Mrs. Clark to have her service dog is
negatively impacting her well-being as well as creating
unnecessary risk to her and her students.” Id.
advance of the Board's decision, Ms. White again wrote
Mr. Nickles, requesting further information regarding
Plaintiff's disability and requested accommodation. ECF
No. 29-4 at 13, White letter 2/14/14. The following
information was requested: an explanation of how
Plaintiff's PTSD affected her in the workplace and
limited her ability to function as a teacher; why Plaintiff
was unwilling to try the alternative accommodations suggested
by the District; Pearl's vaccination records; list of
tasks Plaintiff is unable to do at work without Pearl; how
Plaintiff signals Pearl she needs assistance; and how
Plaintiff maintains control of Pearl. Id.
February 21, 2014, Plaintiff responded to Ms. White's
letter. ECF No. 37-13, Clark letter 2/21/14. She noted her
PTSD affected her and limited her ability to function as a
teacher because the District refused to allow Pearl to
accompany her to work, “causing [her] a great deal of
stress and anxiety resulting in an unwanted weight loss which
impairs [her] health.” She included the January 17,
2014 letter from Dr. Moak regarding the alternative
accommodation of a weighted vest and why she was not willing
to try it. Plaintiff noted she “is able to perform
[her] duties;” however, without the assistance of Pearl
she is in “extreme jeopardy” when monitoring
students released en masse (fire drills, emergency
evacuations, inclement weather), attending meetings at other
schools during student dismissal ...