Patricia L. Fry v. Muscogee County School District , 150 F. App'x 980 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
October 14, 2005
No. 03-16548 THOMAS K. KAHN
Non-Argument Calendar CLERK
____________________________
D.C. Docket No. 01-00026-CV-2-CDL-4
PATRICIA L. FRY,
Plaintiff-Appellant,
versus
MUSCOGEE COUNTY SCHOOL DISTRICT,
Defendant-Appellee.
________________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________________
(October 14, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Patricia L. Fry appeals pro se the district court’s grant of summary judgment
in favor of Muscogee County School District (MCSD) on her claims under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Fry also
appeals the jury verdict in favor of MCSD on her claims under the Rehabilitation
Act, 29 U.S.C. §§ 701 et seq. No reversible error has been shown; we affirm.
Fry, a certified school psychologist, alleged in her complaint that MCSD
discriminated and retaliated against her by assigning her to facilities that were not
handicap accessible and threatening her with disciplinary action--and eventually
terminating her employment--when she complained of the lack of
accommodation.1 The district court later allowed Fry to amended her complaint to
include claims under the Rehabilitation Act arising out of the same facts. The
district court granted summary judgment in favor of MCSD on her ADA claims
because Fry had failed to file a signed and verified charge of discrimination with
the Equal Employment Opportunity Commission (EEOC). Instead, Fry’s EEOC
charge was signed on her behalf by her attorney; and Fry did not amend her charge
of discrimination to include her subsequent verification or signature. Fry’s
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Fry alleged that she suffered from Scheuremann’s Kyphosis, morbid obesity, Type II diabetes,
hypertension, and peripheral neuropathy, all of which limited life activities like performing manual
tasks, walking and working.
2
Rehabilitation Act claims went to a jury, which rendered a verdict in favor of
MCSD.
Fry argues first that the district court improperly granted summary judgment
to MCSD on her ADA claims. She asserts that the EEOC did not question the
validity of her discrimination charge. And she contends that her failure to verify
the charge was outside of her control: the EEOC informed her that it was her
lawyer’s responsibility to correct errors in her charge and her lawyer told her that
amendment was not necessary.
“We review a district court’s grant of summary judgment de novo, viewing
the facts--as supported by the evidence in the record--and reasonable inferences
from those facts in the light most favorable to the nonmoving party.” Young v.
City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004).
Before filing suit under the ADA, a plaintiff must exhaust her administrative
remedies by filing a charge with the EEOC. See 42 U.S.C. § 12117(a) (applying
remedies and procedures of Title VII to ADA); Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1317 (11th Cir. 2001) (stating that first step in exhausting
administrative remedies in Title VII case is filing timely charge of discrimination
with EEOC). EEOC regulations require a charge to be signed and verified. See
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29 C.F.R. § 1601.9. The verification requirement is mandatory. See Vason v. City
of Montgomery, 240 F.3d 905, 907 (11th Cir. 2001).
The district court here correctly granted summary judgment to MCSD on
Fry’s ADA claims: she failed to file a verified charge of discrimination with the
EEOC. Instead, her charge was signed “Patricia Fry w/ permission MTM.”2
Although the applicable regulations allow charges of discrimination to be filed on
behalf of a person, see 29 C.F.R. § 1601.7(a), the regulations do not dispense with
the requirement that a plaintiff verify the facts supporting a claim, see 29 C.F.R.
§ 1601.9. Also, we are aware that the regulations allow a plaintiff to amend her
charge so that she may cure an earlier failure to verify the charge. See 29 C.F.R.
§ 1601.12(b). But Fry did not amend her charge: instead, she amended her
complaint to add claims under the Rehabilitation Act. And we previously have
rejected the argument that the EEOC is obligated to inform a plaintiff of
deficiencies in her charge. See Vason, 240 F.3d at 907. 3
Fry argues second that, in the light of the grant of summary judgment on her
ADA claims, the district court confused the jury by instructing it on the legal
2
These are the initials of Fry’s lawyer, Michael T. McGonigle, who stated that he filed the charge
with her permission but could not personally swear to the truth of the facts in the charge because he
did not have personal knowledge of those facts.
3
We need not address Fry’s arguments about the timeliness of her charge.
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standards for proving a claim under both the Rehabilitation Act and the ADA. She
claims that these standards are different: she bears a higher burden of showing
causation under the Rehabilitation Act. She also contends that the district court
erred by failing to instruct the jury properly on the failure-to-accommodate claim.
Fry initially objected to the jury instructions about the causation standards
for her claims. But the district court then included the language she requested.
Fry then expressed her satisfaction with the amended jury instructions and with the
verdict form. Fry invited the error that she now complains of: her acceptance of
the amended jury instructions served to waive her right to challenge the accepted
instructions on appeal. See Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283,
1294 (11th Cir. 2002).
Fry next argues that the district court erred by allowing MCSD to introduce
evidence about her later employment in Florida and about a lawsuit she filed in
Florida after her eventual termination from that job. She asserts that the admission
of this evidence was irrelevant and unfairly prejudicial as it presented her to the
jury as a “problem employee.”
The record shows that Fry lodged a pretrial objection to MCSD’s intended
introduction of evidence about her Florida employment. MCSD argued that the
evidence was relevant to show (1) the extent of her disability and her ability to
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perform her job if reinstated and (2) damages. The district court opined that the
evidence might be admissible to show that Fry was not disabled, but the court
questioned whether the evidence could be used to show that Fry was a poor
employee. The court delayed ruling until it would hear the evidence at trial and
advised Fry’s lawyer that he needed to object again at trial to the admission of the
evidence. But the court allowed MCSD to refer to the Florida lawsuit in opening
argument, without referring to the underlying facts, to the extent the Florida suit
pertained to overlapping damages.
MCSD referred to the Florida lawsuit in opening argument with no
objection from Fry. The district court later admitted Fry’s Florida complaint
during MCSD’s cross-examination for the limited purpose of impeaching her
earlier testimony on a matter unrelated to her termination by the Florida school
district.4 Fry did not object to the admission of the Florida complaint. During
closing argument, MSCD stated, without objection, that the damages Fry sought
could overlap with the damages she was seeking from the Florida school district.
Despite the district court’s admonition, Fry failed to object to the instances
where the Florida lawsuit was mentioned and admitted into evidence: we review
4
Fry had testified that she did not look for a new job until March 2000 and that she did not pursue
the Florida job before then; but the Florida complaint indicated that she had applied for the Florida
job in February 2000.
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only for plain error. See Brough v. Imperial Sterling, Ltd., 297 F.3d 1172, 1179
(11th Cir. 2002).5 MCSD made brief references to the Florida lawsuit during
opening and closing argument on the issue of damages, a relevant issue that the
jury would decide. And MCSD only admitted the Florida complaint to impeach
Fry’s earlier testimony. Fry does not point to any instance in the record where
MCSD went into the facts underlying the Florida complaint. In sum, MCSD only
mentioned the Florida lawsuit a few times during a multi-day trial and for limited
purposes. Fry cannot show error, plain or otherwise, from the admission of
evidence about the Florida lawsuit.
Finally, Fry notes several instances throughout her lawsuit where she was
displeased with the performance of her lawyers, who were provided by the
Georgia Association of Educators. She requests that we provide a remedy for the
“recipient of the consequences of poor legal practice.” But Fry neither has a
“constitutional or statutory right to effective assistance of counsel on a civil case,”
nor does she have a “right to a new trial in a civil suit because of inadequate
counsel.” Mekdeci v. Merrill Nat’l Labs., 711 F.2d 1510, 1522-23 (11th Cir. 1983)
5
On plain error review, a party must show “error” that is “plain” and that “affects the substantial
rights of the party.” Brough, 297 F.3d at 1179. It is only after these conditions have been satisfied
that an appellate court then may exercise its discretion and correct the error if it seriously affects the
fairness, integrity or public reputation of the judicial proceedings. Id.
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(citation omitted). We cannot provide a remedy for the alleged errors of Fry’s
lawyers.
AFFIRMED.
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