Joseph Siudock v. Volusia County School Board

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15576
Non-Argument Calendar
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D.C. Docket No. 6:12-cv-00503-JA-KRS
JOSEPH SIUDOCK,
Plaintiff-Appellant,
versus
VOLUSIA COUNTY SCHOOL BOARD,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 3, 2014)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Joseph Siudock, a former teacher with type-I diabetes mellitus and brittle
labile diabetes, appeals pro se the district court’s grant of summary judgment in
favor of the Volusia County School Board (“the Board”), on his claims of: (1)
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disability discrimination and failure to accommodate, (2) retaliation, and (3)
constructive discharge, brought under the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12112, et seq., and the Florida Civil Rights Act of 1992
(“FCRA”), Fla. Stat. § 760.01, et seq., and (4) state law breach of contract. On
appeal, Siudock argues that the district court erred in granting summary judgment
on his claims, and in denying his requests to continue discovery after he terminated
his counsel. After careful review, we affirm.
We review the district court’s discovery rulings for abuse of discretion.
Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004). We
review a district court’s order granting summary judgment de novo, viewing the
facts in the light most favorable to the non-moving party. Brooks v. Cnty.
Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006).
Summary judgment is proper when the moving party demonstrates “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). The non-movant may not rest upon mere
allegations or denials, “but must set forth specific facts showing that there is a
genuine issue for trial.” Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.
1990) (quotation omitted). Speculation or conjecture cannot create a genuine issue
of material fact. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
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First, we are unpersuaded by Siudock’s argument that the district court
abused its discretion denying Siudock time to conduct additional discovery past the
deadlines in the scheduling order and after he terminated his counsel. Our law is
clear that a district court does not abuse its discretion when it holds litigants to the
clear terms of its scheduling orders. Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1307 (11th Cir. 2011). We will not overturn a discovery
ruling unless it is shown that the ruling resulted in “substantial harm” to the
appellant’s case. Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274,
1286 (11th Cir. 2003) (quotation omitted).
As the record shows, Siudock did not terminate his counsel until after the
deadline for discovery had already passed and substantial discovery had been
completed. Further, the court had previously granted Siudock’s motion to extend
discovery to allow additional depositions, but warned that further extensions would
be unlikely “absent a showing of extraordinary circumstances.” Thus, the court
was not obligated to extend discovery because it had already provided ample
opportunity for discovery. See id. at 1286-87 (holding that the district court did
not abuse its discretion in denying additional discovery when, inter alia, the district
court had previously granted a three-month extension). Moreover, Siudock made
no showing that the court’s ruling harmed his case. See id.
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We also find no merit in Siudock’s argument that the district court erred in
granting summary judgment on his disability discrimination/failure-to-
accommodate claims. In order to establish a prima facie case of discrimination
under the ADA, a plaintiff may show that he: (1) is disabled; (2) is a qualified
individual; and (3) was subjected to unlawful discrimination because of his
disability. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007); see also 42 U.S.C. § 12112(a). A “qualified” individual with a
disability can perform the essential functions of the position with or without
reasonable accommodations. 29 C.F.R. § 1630.2(m). A certification of total
disability on a social security disability application is not inherently inconsistent
with being a “qualified individual with a disability” under the ADA. Talavera v.
Sch. Bd. of Palm Beach Cnty., 129 F.3d 1214, 1220 (11th Cir. 1997). However, an
ADA plaintiff is estopped from denying the truth of any statements made in his
disability application. Id. To survive summary judgment, an ADA plaintiff must
explain why his claim to the Social Security Administration (“SSA”) that he was
too disabled for work is consistent with his ADA claim that he could perform the
essential functions of the job with reasonable accommodations. Cleveland v.
Policy Mgmt. Sys., 526 U.S. 795, 798 (1999).
An employer unlawfully discriminates against a qualified individual with a
disability if the employer fails to provide “reasonable accommodations” for the
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disability, unless providing those accommodations would impose undue hardship
on the employer. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.
2001). An accommodation is “reasonable” only if it enables the employee to
perform the essential functions of the job. Id. The ADA does not require an
employer to remove another employee from a position in order to accommodate a
disabled employee. Id. at 1256. An employer does not have to provide “the
maximum accommodation or every conceivable accommodation possible.”
Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th
Cir. 1997) (quotation omitted). The employee is only entitled to a reasonable
accommodation, not to the accommodation of his choice. Id. at 1286.
Here, the district court properly granted summary judgment in favor of the
Board on Siudock’s disability discrimination and failure-to-accommodate claims.
Among other things, Siudock was not a “qualified individual” under the ADA
because he could not perform an essential function of the job with or without
accommodations. See 29 C.F.R. § 1630.2(m). The Board presented undisputed
evidence that, even if Siudock were accommodated by being allowed to teach only
gifted students, he would still be unable to perform an essential function of the job,
as even gifted students have disciplinary problems that could have caused Siudock
stress and exacerbated his diabetes. Moreover, Siudock is estopped from denying
the truth of his statements made in furtherance of his social security disability
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application -- that returning to teaching “would guarantee [his] death,” and that,
although his doctors recommended that he teach gifted students, he did not think
he could teach any students -- and he has not explained the inconsistency between
his statement to the SSA and his ADA claim. See Cleveland, 526 U.S. at 797-98;
see also Talavera, 129 F.3d at 1220.
Moreover, because Siudock was not a “qualified individual” with a
disability, the Board did not have to provide him accommodations. See Stewart,
117 F.3d at 1285-86 (holding that under the ADA, “a qualified individual with a
disability” is entitled to reasonable accommodations). Nevertheless, the
undisputed record shows that the Board did provide reasonable accommodations.
Principal Deborah Drawdy initially assigned Siudock to a classroom with a private
bathroom. Principal Kevin Tucker moved Siudock to a classroom near the media
center at Siudock’s request. Tucker then moved Siudock back to the classroom
with a private bathroom after he complained about the distance to a bathroom from
the classroom near the media center. Although Siudock was not permitted to leave
his class unattended, he could notify the administration that he needed a staff or
faculty member to help supervise students by: (1) using a call button; (2) sending a
student to an administration office that was less than ten steps away from his
classroom; and (3) knocking on the window between his classroom and an
administrator’s office. The Board also altered Siudock’s schedule so that he was
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required to teach no more than two classes in a row, permitting him regular
intervals to check his blood sugar. The Board thus provided reasonable
accommodations for Siudock to use the bathroom and check his blood sugar, and
was not required to provide Siudock the accommodation of his choice, or “the
maximum accommodation or every conceivable accommodation possible.” See id.
We also disagree with Siudock’s argument that the district court improperly
granted summary judgment on his retaliation claim. The ADA’s general anti-
retaliation provision provides that “[n]o person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful
by this chapter.” 42 U.S.C. § 12203(a); Albra v. Advan, Inc., 490 F.3d 826, 830
(11th Cir. 2007). To establish a prima facie case of retaliation under the ADA, a
plaintiff must show that: (1) he engaged in statutorily protected expression; (2) he
suffered an adverse action; and (3) the adverse action was causally related to the
protected expression. Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004).
After a plaintiff has made out a prima facie case of retaliation, the burden shifts to
the employer to articulate legitimate nondiscriminatory reasons for its actions.
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999). The
plaintiff must then show that the employer’s proffered reasons are pretextual. Id.
In his complaint, Siudock alleged that the Board retaliated against him by:
(1) assigning him a more rigorous teaching schedule; (2) removing him from
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leadership positions; (3) failing to accommodate his requests to allow for glucose
testing, administering medication, and eating; (4) placing him in a more stressful
classroom environment; and (5) harassing him. However, the undisputed evidence
shows that Board did accommodate his requests to allow for glucose testing,
administering medication, and eating, and that Siudock was not harassed.
Plus, even assuming that Siudock established a prima facie case of
retaliation for the other claims, the Board presented legitimate nondiscriminatory
reasons for its actions. Principal Karen Beattie replaced Siudock’s tentative
assignment to teach 6th grade with 8th grade general education American history
classes because: (1) Susan Jackson was to become the assistant principal for 6th
grade, and Beattie knew Siudock was unhappy with Jackson as his administrator;
(2) Beattie filled the 6th grade positions with teachers who were only certified in
elementary education because Siudock was certified to teach higher grade levels;
(3) by assigning Siudock only general education American history classes, he had
only one class preparation, and he had previously complained about having too
many preparations; (4) Siudock had struggled in teaching gifted classes and had
been placed on a success plan; and (5) many parents and students had complained
about Siudock’s classroom behavior and requested transfers to other classes.
Beattie also testified that she did not reassign Siudock to club sponsorships
because others had complained about working with him. Siudock presents no
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evidence, other than his own unsupported belief, that these reasons were
pretextual. Thus, the district court properly granted summary judgment on his
retaliation claims. See Cordoba, 419 F.3d at 1181; Eberhardt, 901 F.2d at 1580.
We find no merit in his constructive discharge claim either. A constructive
discharge claim is not a jury question unless a plaintiff presents substantial
evidence that employment conditions were intolerable. Brochu v. City of Riviera
Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). An employee must show that his
working conditions were so difficult that a reasonable person would have felt
compelled to resign. Id. at 1161 n.30. In assessing constructive discharge claims,
we do not consider a plaintiff’s subjective feelings about his employer’s actions,
but whether a reasonable person in the plaintiff’s position would be compelled to
resign. Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1450 (11th Cir. 1998).
In this case, Siudock has pointed to no evidence showing that working
conditions were so intolerable that a reasonable person in his position would have
felt compelled to resign. To the extent Siudock alleges that Principal Beattie
harassed him by checking his classroom for syringes, the record shows that
Siudock on at least two occasions left his medication, including his syringes, out
where students had access. As a result, Beattie’s “syringe checks” were not
harassment, but rather an effort to ensure that Siudock did not endanger the
students. The undisputed record also shows that Siudock voluntarily resigned due
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to his deteriorating health. Accordingly, the district court properly granted
summary judgment in favor of the Board on Siudock’s constructive discharge
claim.
Finally, we reject Siudock’s argument concerning his breach of contract
claim. In Florida, a breach of contract claim requires the plaintiff to plead and
establish: (1) the existence of a contract; (2) a material breach; and (3) damages
resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272
(11th Cir. 2009).
Here, the undisputed record shows that the Board did not materially breach
the 2006 settlement agreement it reached with Siudock after he filed his first
charge of discrimination with the Equal Employment Opportunity Commission.
Paragraph 4 of the agreement provided that the Board “agrees that there shall be no
discrimination or retaliation of any kind against any person because of opposition
to any practice deemed illegal under the ADA as a result of filing this charge.” As
we’ve explained above, the Board did not discriminate or retaliate against Siudock.
The parties also agreed in paragraph 7D to meet during the pre-planning session
before the 2007-2008 school year to agree on a reasonable accommodation to place
Siudock’s classroom near a facility to accommodate his need for privacy to check
his blood sugar as necessary. The evidence demonstrates that, at the time of his
transfer to Creekside Middle School, Siudock met with the area superintendent, a
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Volusia Teachers Organization representative, and the Board’s attorney to discuss
placement in a classroom with a bathroom. In addition, Siudock testified that he
met with Principal Tucker in July 2007 to discuss moving out of his classroom
equipped with a bathroom into a classroom near the media center. Thus, the Board
did not materially breach paragraph 7D. Finally, in paragraph 7F, the parties
agreed that, if Siudock needed assistance, he would contact his principal via email,
and, if the principal failed to respond within three business days, Siudock would
send a follow-up email. The language of this paragraph describes how Siudock
must present his complaints, but does not obligate the Board to take any action.
Accordingly, the Board did not breach the settlement agreement, and the district
court properly granted summary judgment in its favor.
AFFIRMED.
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