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Clark v. School District Five of Lexington and Richland Counties

United States District Court, D. South Carolina, Columbia Division

March 29, 2017

Deborah Clark, Plaintiff
v.
School District Five of Lexington and Richland Counties, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Through 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.

         In 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 resolution.

         After 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.

         I. Standard

         The 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).

         Summary 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).

         II. Facts

         The following facts are presented in the light most favorable to Plaintiff, the party opposing summary judgment.

         Plaintiff's Disability

         In 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.

         Teaching at Alternative Academy

         Plaintiff 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.

         In 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.

         The 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

         Pearl's Functions as Plaintiff's Service Dog

         Plaintiff and her co-worker, Ms. Gray, trained Pearl, in accordance with Delta Society standards[1], to respond to Plaintiff's symptoms of anxiety and developing panic attacks.[2] 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.

         As 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.

         Formal Request for Accommodation

         In June 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.[3] 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.

         The 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.

         This 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.

         Dr. 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 remove [herself]

         from an 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.

Id.

         Grievance Process

         Rather 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.

         Plaintiff 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.”[4] 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.” Id.

         Plaintiff 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.

         On 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 8.

         On 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.[5]

         The 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.

         In 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.

         On 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 ...


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