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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10096
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-00569-PAM-CM
GIGI DANIELLE-DISERAFINO,
Plaintiff-Appellant,
versus
DISTRICT SCHOOL BOARD OF COLLIER COUNTY, FLORIDA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 29, 2018)
Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.
PER CURIAM:
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Gigi Danielle-DiSerafino appeals the district court’s grant of summary
judgment in favor of the District School Board of Collier County, Florida (the
School Board), in her action alleging failure to accommodate her disability in
violation of the Americans with Disabilities Act (ADA). Danielle-DiSerafino’s
appeal rests on four arguments. First, she argues that the district court erred in
granting summary judgment because (1) she established that she had a disability
under the ADA, (2) the School Board refused to grant her reasonable
accommodation requests, and (3) the fact that the School Board’s corporate
representative was unprepared for his deposition created genuine issues of material
fact. Second, Danielle-DiSerafino argues that the district court erred in not
addressing her constructive discharge claim. Third, she argues that the district
court erred in determining that the School Board’s actions did not constitute a
continuing violation. Finally, Danielle-DiSerafino claims that the district court
abused its discretion when it did not consider the Equal Employment Opportunity
Commission’s (EEOC) Letter of Determination which opined that she had
reasonable cause to sue under the ADA. We disagree with each of Danielle-
DiSerafino’s arguments, and therefore affirm.
On January 4, 2005, Danielle-DiSerafino, a high school teacher, was injured
at a faculty team building event as a result of an individual hitting her head while
ziplining. That same day, Danielle-DiSerafino completed the workers’
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compensation paperwork necessary to substantiate her claim, and was later referred
to a neurologist, Dr. Brian Wolff, by the School Board’s workers’ compensation
carrier. Dr. Wolff never opined that Danielle-DiSerafino was impaired with
respect to major life activities, or that her ability to teach would be impacted.
Danielle-DiSerafino continued to teach on the same schedule as she had prior to
the accident for the remainder of the school year. In 2006, after requesting a
physician change, Danielle-DiSerafino began receiving care from Dr. Joseph
Kandel. Dr. Kandel also concluded that Danielle-DiSerafino could continue
working as a teacher, that she did not have any impairment that would affect major
life activities,1 and that she did not require any accommodations. Dr. Kandel
proceeded to treat Danielle-DiSerafino for seven years, never indicating that she
required medical accommodations in order to perform the essential functions of her
job. In 2013, Danielle-DiSerafino moved to a third workers’ compensation
physician, Dr. Mark Rubino. Dr. Rubino likewise concluded that Danielle-
DiSerafino’s medical issues would not impair her major life activities and that she
was capable of teaching without accommodations.
Despite the doctors’ reports, Danielle-DiSerafino argues that she is disabled
under the ADA because some of her symptoms “substantially limits one or more of
[her] major life activities.”
42 U.S.C. § 12102(1). For example, Danielle-
1
For example, Dr. Kandel determined that Danielle-DiSerafino had a 3% impairment rating for
her neck injuries, and a 0% impairment rating for her back injuries. See Doc. 37, Ex. A at 8.
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DiSerafino claims she is unable to multitask, external stimuli cause her stress, her
math skills have deteriorated, she experiences memory loss, and moving her neck
causes severe pain. Moreover, Danielle-DiSerafino points to affidavits submitted
by two coworkers to support her contention that she is disabled. The coworkers
maintain that Danielle-DiSerafino clearly suffered side effects from the injury, and
that the School Board did not accommodate her.
From the time Danielle-DiSerafino was injured until her ultimate retirement,
she claims to have requested several medical accommodations, including requests
to (1) teach smaller class sizes, (2) be assigned a larger classroom with windows,
(3) be assigned the first period as a planning period, (4) be exempted from
lunchroom duty, and (5) be permitted to ice her neck during the workday.
Danielle-DiSerafino concedes that she is unsure who she made these
accommodation requests to, and when she made them.
Based on these allegations, Danielle-DiSerafino filed a two-count complaint
alleging (1) violation of the ADA based on a theory of failure to accommodate, and
(2) workers’ compensation retaliation under Florida law. The district court
dismissed the latter claim at the pleading stage, and subsequently granted summary
judgment to the School Board as to the former claim, reasoning that Danielle-
DiSerafino was not disabled. The district court further determined that, even if she
was disabled, Danielle-DiSerafino did not adequately set forth her alleged requests
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for accommodation 2 and that the EEOC’s determination that the School Board
acted inappropriately was irrelevant. This appeal followed.
I.
Danielle-DiSerafino first argues that the district court erred in granting
summary judgment because (1) she established that she had a disability under the
ADA, (2) the School Board refused to grant her reasonable accommodation
requests, and (3) the fact that the School Board’s corporate representative was
unprepared for his deposition created genuine issues of material fact.
We review a grant of summary judgment in an ADA case de novo, drawing
all reasonable inferences in favor of the non-moving party. EEOC v. St. Joseph’s
Hosp., Inc.,
842 F.3d 1333, 1342–43 (11th Cir. 2016). Summary judgment is
appropriate when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a).
The ADA prohibits an employer from “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an . . . employee.”
42 U.S.C.
§ 12112(b)(5)(A). To satisfy the prima facie case under the ADA, a plaintiff must
demonstrate (1) she is disabled; (2) she was a “qualified individual” at the relevant
2
The district court briefly expanded on this point. It determined that the continuing violation
theory did not apply because each request for an accommodation was a discrete act. Moreover,
the district court concluded that several of the accommodation requests were untimely.
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time, meaning she could perform the essential functions of the job with or without
reasonable accommodations; and (3) the employer failed to provide a reasonable
accommodation. Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1255 (11th Cir.
2001). The plaintiff bears the burden of establishing a prima facie case of
disability discrimination. Davis v. Fla. Power & Light Co.,
205 F.3d 1301, 1305
(11th Cir. 2000).
An individual has a disability if she has “a physical or mental impairment
that substantially limits one or more of [her] major life activities.”
42 U.S.C.
§ 12102(1). Major life activities include performing manual tasks, sleeping,
walking, standing, lifting, bending, speaking, concentrating, thinking,
communicating, and working.
Id. § 12102(2)(A). Pain alone is insufficient to
establish a disability if the evidence does not show impairment of a major life
activity. St. Joseph’s Hosp., 842 F.3d at 1344.
In EEOC v. St. Joseph’s Hosp., Inc., we held that a nurse was disabled
because she “suffered pain and more” where the evidence showed that without use
of a cane, “she could only walk short distances and would have to stop, align her
body, and balance herself.” Id. Similarly, in Mazzeo v. Color Resolutions Intern.,
LLC, we held that the plaintiff established that he was disabled where he provided
an affidavit from his doctor detailing his “medical condition, what specific pain the
condition caused, and the limitations on major life activities . . . resulting from the
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condition and pain.”
746 F.3d 1264, 1269 (11th Cir. 2014) (quotation marks
omitted). 3 There, the doctor’s affidavit noted that Mazzeo’s problems were
“substantial . . . and permanent.”
Id.
Regarding the accommodation requirement, we have held that an employer
must provide a reasonable accommodation for an employee with a known
disability, unless such accommodation would result in undue hardship to the
employer. Lucas, 257 F.3d at 1255. An accommodation is reasonable and
required only if it enables the employee to perform the essential functions of the
job. Id. The plaintiff bears the burden of identifying an accommodation and
illustrating that the accommodation would enable her to perform the essential
functions of the job. Id. at 1255–56.
Here, the district court properly granted summary judgment to the School
Board because Danielle-DiSerafino did not establish a prima facie case of
disability discrimination. Danielle-DiSerafino failed to prove that she was disabled
within the meaning of the ADA because neither she nor her doctors adequately
demonstrated that her pain substantially limited a major life activity. Furthermore,
her coworkers’ affidavits do not create an issue of material fact about whether
3
In Mazzeo, this Court analyzed whether Mazzeo had a disability under the broader standard of
the ADA Amendments Act of 2008 (“ADAAA”), which became effective January 1, 2009.
Mazzeo, 746 F.3d at 1267. Mazzeo’s injury occurred prior to the ADAAA’s enactment, but “the
critical events” of the case, including his continued back problems and termination, took place
after the new law went into effect. Id. Here, it is not necessary to determine whether the critical
events of Danielle-DiSerafino’s claim occurred before or after January 1, 2009, because her
claim fails even under the broader ADAAA standard.
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Danielle-DiSerafino was disabled because those affidavits merely corroborate that
she suffered pain. Unlike the plaintiffs in St. Joseph’s Hospital and Mazzeo,
Danielle-DiSerafino did not establish through medical or other evidence that she
had “pain plus more.” St. Joseph’s Hosp., 842 F.3d at 1344; Mazzeo, 746 F.3d at
1269.
Because Danielle-DiSerafino failed to establish that she was disabled, it is
unnecessary for this Court to consider her second claim—that the School Board
refused to grant her medical accommodations.
Danielle-DiSerafino also argues that summary judgment was improper
because the School Board’s corporate representative was unprepared for his
deposition, and thus genuine issues of fact still exist. Specifically, she argues that
the corporate representative did not know whether Danielle-DiSerafino made any
accommodation requests or whether those requests, if any, were granted.
We have held that if an entity’s corporate representative denies knowledge
of certain matters in a deposition, the district court retains discretion to admit
testimony by other employees with knowledge of those matters. See Vista
Marketing, LLC v. Burkett,
812 F.3d 954, 980–81 (11th Cir. 2016). In this case,
Principal Timothy Kutz testified as to the exact topics the corporate representative
failed to testify about; that is, Kutz testified about Danielle-DiSerafino’s
accommodation requests. Accordingly, it was within the district court’s discretion
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to consider Kutz’s testimony in determining that there was no genuine issue of
material fact. See Vista Marketing, 812 F.3d at 980–81.
II.
Second, Danielle-DiSerafino argues that the district court erred in not
addressing her constructive discharge claim. According to Danielle-DiSerafino,
the School Board’s refusal to accommodate her disability created a hostile work
environment, eventually leading to a constructive discharge.
Since the district court correctly determined that Danielle-DiSerafino was
not disabled, and thus was not entitled to accommodations, it was unnecessary for
the district court to consider whether the lack of accommodations resulted in a
constructive discharge.
III.
Next, Danielle-DiSerafino argues that the continuing violation doctrine
applies to her claims; thus, none of the requests for accommodations she relied on
were time-barred or unexhausted. Moreover, she argues that even if the continuing
violations doctrine did not apply, at least some of the incidents were not time-
barred.
Like her previous argument, this argument fails because it was unnecessary
for the district court to consider whether Danielle-DiSerafino made adequate
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accommodation requests, as she failed to satisfy the first step of the pima facie
case—demonstrating that she was disabled.
IV.
Finally, Danielle-DiSerafino claims that the district court abused its
discretion when it did not consider the Equal Employment Opportunity
Commission’s (EEOC) Letter of Determination which stated that Danielle-
DiSerafino had reasonable cause to sue under the ADA. While Danielle-
DiSerafino concedes that the letter by itself does not preclude summary judgment,
she argues that ignoring the letter was improper.
EEOC findings are not binding with regard to subsequent discrimination
suits in federal court. Moore v. Devine,
767 F.2d 1541, 1550–51 (11th Cir. 1985),
modified on reh’g,
780 F.2d 1559, 1560 (11th Cir. 1986). The district court is not
required to defer to the EEOC determination, and it must conduct a de novo review
of the claims.
Id. The probative value of EEOC findings is left to the district
court’s discretion. See Barfield v. Orange Cty.,
911 F.2d 644, 649–51 (11th Cir.
1990).
Here, the district court was not required to defer to the EEOC’s
determination that Danielle-DiSerafino had established probable cause. See
Moore,
767 F.2d at 1550–51. Rather, it concluded that she had not established a
prima facie failure to accommodate case. Because the district court was within its
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discretion to not consider the EEOC’s determination, it was not error for it to
determine that the determination was irrelevant.
For the foregoing reasons, we affirm.
AFFIRMED.
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