Barbara Fluharty Jowers Darwin v. Jim Nicholson , 221 F. App'x 918 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13990 APR 4, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00347-CV-ORL-31-DAB
BARBARA FLUHARTY JOWERS DARWIN,
Plaintiff-Appellant,
versus
JIM NICHOLSON,
Secretary of Veterans Affairs,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 4, 2007)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Barbara Fluharty Jowers Darwin, proceeding pro se, appeals the district
court’s entry of summary judgment in favor of the Secretary of Veterans Affairs, in
Darwin’s action alleging disability discrimination, in violation of the
Rehabilitation Act of 1973, 29 U.S.C. 791 et seq. On appeal, Darwin argues: (1)
the district court erred by considering her unsigned deposition in entering summary
judgment; and (2) the district court erred by entering summary judgment on her
discrimination claim because there were disputed issues of material fact, including
whether she was disabled, whether she could not perform her duties with a
reasonable accommodation, and whether she was offered a reasonable
accommodation.1 After careful review, we affirm.
District courts are entitled to broad discretion in managing pretrial discovery
matters. Klay v. All Defendants, 425 F.3d 977, 982 (11th Cir. 2005). Thus, we
review a district court’s discovery rulings for an abuse of discretion. Hinson v.
Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 826 (11th Cir. 2000); see also
Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003)
(holding that the Court “will not overturn discovery rulings unless it is shown that
the [d]istrict [c]ourt’s ruling resulted in substantial harm to the appellant’s case.”
(internal quotations omitted)).
We review a district court’s grant of summary judgment de novo, viewing
all evidence in a light most favorable to the non-moving party. Witter v. Delta Air
1
To the extent Darwin also challenges the district court’s grant of summary judgment on her
retaliation claim, we discern no reversible error.
2
Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998). “Summary judgment is proper
if the pleadings, depositions, and affidavits show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law.”
Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000) (citations omitted).
First, Darwin argues that the district court abused its discretion in
considering, as part of its summary judgment analysis, her deposition. Darwin
urges that because she is deaf and did not have an interpreter when the deposition
was taken, and because she was never able to review her deposition, although she
requested the opportunity to do so, it should not have been considered at summary
judgment.
Depositions generally are admissible provided that the party against whom
they are admitted was present, represented, or reasonably noticed, pursuant to Rule
32(a) of the Federal Rules of Civil Procedure. See Nippon Credit Bank, Ltd. v.
Matthews, 291 F.3d 738, 751 (11th Cir. 2002). Moreover, depositions are
specifically allowed in consideration of summary judgment. See id. Rule 30(e) of
the Federal Rules of Civil Procedure further provides the following:
If requested by the deponent or a party before completion of the
deposition, the deponent shall have 30 days after being notified by the
officer that the transcript or the recording is available in which to
review the transcript or recording and, if there are changes in form or
substance, to sign a statement reciting such changes and the reasons
given by the deponent for making them.
3
Fed. R. Civ. P. 30(e).
“Errors and irregularities in the manner in which the testimony is . . . dealt
with by the officer under Rules 30 and 31 are waived unless a motion to suppress
the deposition or some part thereof is made with reasonable promptness after such
defect is, or with diligence might have been, ascertained.” Fed. R. Civ. P.
32(d)(4). Also, errors and irregularities in the manner of taking the deposition or
any other errors that might be “obviated, removed, or cured if promptly presented,
are waived unless seasonable objection thereto is made at the taking of the
deposition.” Fed. R. Civ. P. 32(d)(3)(B).
Here, Darwin filed no motion to suppress , nor did she lodge a seasonable
objection, either prior to or at the time she received the Secretary’s motion for
summary judgment. See Fed.R.Civ.P. 32(d)(4).2 Moreover, and more importantly,
on appeal, Darwin has failed to show how her case was substantially harmed by
the denial of an opportunity to review the testimony. See Iraola & C.I.A. v.
Kimberly-Clark Corp, 325 F.3d 1274, 1286 (11th Cir. 2003). Indeed, she has not
pointed to any testimony that was erroneous. In short, the district court did not
2
Notably, Darwin also indicated during the deposition that, as far as she could tell, she could
hear 100 percent of what was being asked. Because any problems that Darwin had could likely have
been cured if promptly presented at the deposition, Darwin waived any objection by failing to raise
it in a timely fashion during the deposition. See Fed. R. Civ. P. 32(d)(3)(B).
4
abuse its discretion in relying on Darwin’s testimony in granting summary
judgment. See Hinson, 231 F.3d at 826.
We likewise are unpersuaded by Darwin’s argument that the district court
erred by entering summary judgment on her discrimination claim under the
Rehabilitation Act, which “prohibits federal agencies from discriminating in
employment against otherwise qualified individuals with a disability.”3 Sutton v.
Lader, 185 F.3d 1203, 1207 (11th Cir. 1999). In order to establish a prima facie
case of discrimination, Darwin must demonstrate that she (1) is disabled, (2) is a
qualified individual, and (3) was subjected to unlawful discrimination because of
her disability. Id. The first factor is dispositive in the instant case.
The Rehabilitation Act defines an “individual with a disability” as any
person who: ‘(i) has a physical or mental impairment which substantially limits
one or more of such person’s major life activities; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impairment.”4 Mullins v.
Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000). A court generally determines the
3
“Discrimination claims under the Rehabilitation Act are governed by the same standards
used in ADA cases.” Cash, 231 F.3d at 1305.
4
Darwin’s arguments, both in the district court and on appeal, implicate only the first
definition. Darwin contends that she is “actually disabled,” but makes no argument that she was an
individual with a disability because she was “regarded as” or had a “record of” a disability.
Accordingly, we consider only whether the district court’s entry of summary judgment, based on
actual disability, was error.
5
existence of a disability, under the first definition, by making a three-point
assessment of whether: (1) a plaintiff’s injury is a physical impairment; (2) the
activities that the plaintiff claims are limited by his injury qualify as major life
activities; and (3) the injury substantially limits the major life activities he
identifies. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
Here, Darwin contended she was disabled based on (1) hearing; (2) her
medical restrictions as to walking, standing, and lifting; or (3) her ability to work.
In a thorough and well-reasoned 30-page Report and Recommendation, which the
district court adopted, the magistrate judge found that Darwin was able to hear
with the use of a hearing aid, and that there was no evidence that Darwin’s
restrictions substantially limited her activities when compared to the general
populace. Moreover, the magistrate judge reasoned that Darwin had identified
jobs that she was qualified to perform. Thus, she was not an “individual with a
disability,” within the meaning of the Rehabilitation Act. After a de novo review
of the record, we discern no error in the district court’s entry of summary
judgment on this basis.5
AFFIRMED.
5
Based on Darwin’s failure to satisfy her burden, at the summary judgment stage, on the first
factors of her prima facie case, we need not, and do not, consider her arguments on the other factors.
6