OLIVER GREENE v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA (2024)

ORDER

Presently before the Court are Magistrate Judge Linda T. Walker's Final Report & Recommendation (“R&R”) [Doc. 60] and Plaintiff Oliver N. Greene and Defendant Board of Regents of the University System of Georgia's objections thereto [Docs. 65, 66]. The Court sets forth its reasoning and conclusions below.

I. Background

This case arises from Plaintiff Oliver N. Greene's employment as a tenured Professor at George State University (“GSU”). See generally Compl. [Doc. 1]. As explained in the R&R, Plaintiff began working at GSU in the School of Music in 2001 and subsequently gained tenure in 2008. R&R at 2. Plaintiff taught courses in music history and culture and did not instruct students on singing or playing musical instruments. Id. He suffers from “allergic fungal sinusitis,” which causes him to periodically lose his voice when he is exposed to atmospheric mold. Id. While he was living in Georgia, Plaintiff “would have ‘flare ups’ four to six times per year that caused him to entirely lose his voice for seven to ten days.” Id. In 2013, Plaintiff's physician recommended that he move to either the Southwest or Northeast region of the United States where there is less mold in the climate. Id.

Plaintiff began teaching his classes remotely from California in 2017 and this arrangement continued for several years, including during the COVID-19 pandemic when GSU “was forced to shift to fully remote classes.” Id. at 2, 4. While he was living in California, Plaintiff experienced only one flare up, which was “during an unusually rainy season.” Id. at 3. However, in 2021 Plaintiff was told that he would need to apply for an accommodation pursuant to GSU's Americans with Disabilities Act (“ADA”) policy in order to continue teaching remotely from California. Id. at 4. GSU's Assistant Director of Benefits and Plaintiff's supervisor initially met and determined that Plaintiff's request was reasonable, but an attorney at GSU who reviewed the request “was concerned that they had not ‘fully analyzed the essential functions of the job.’ ” Id. (quoting Defendant's Statement of Material Facts (“Def.'s SOMF”) ¶ 7 [Doc. 39-2]).¹

GSU ultimately denied Plaintiff's request to teach remotely from California on the ground that it was not a reasonable accommodation and offered to provide him with an air purifier in his office as an alternative. Id. Plaintiff appealed the decision. Id. at 5. In his appeal, Plaintiff argued that an air purifier would not adequately accommodate him because the mold allergens that caused his reactions are atmospheric and regional and not related to the mold levels in a specific office. Id. GSU denied Plaintiff's appeal but permitted him to keep teaching remotely through the 2021–2022 school year. Id. Plaintiff's employment at GSU ended in May 2022.² Id. at 2.

On October 28, 2022, Plaintiff filed the instant action in this Court. See Compl. In his Complaint, Plaintiff claims that Defendant's denial of his requested remote-teaching accommodation constitutes disability discrimination under Titles I and II of the ADA (Counts I and II) and the Rehabilitation Act (Count III). See generally id. Plaintiff also raises a breach of contract claim (Count IV) on the theory that Defendant's conduct “effects a termination of [his] employment without cause.” Id. ¶ 79. Both parties subsequently moved for summary judgment. [See Docs. 39, 40]. Defendant moved for summary judgment on all Counts, whereas Plaintiff moved for summary judgment on all Counts except for the breach of contract Count. [See generally id.]

On May 20, 2024, the Magistrate Judge issued an R&R recommending that both motions be granted in part and denied in part. See R&R at 1. Though the two (2) motions involve overlapping claims, the Magistrate Judge analyzed each motion separately.

In addressing Defendant's motion, the Magistrate Judge first recommended that Plaintiff's ADA and breach of contract claims be dismissed on the ground that Defendant was entitled to sovereign immunity under the Eleventh Amendment. Id. at 7–10. Next, the Magistrate Judge addressed Defendant's three (3) separate arguments for why it should be entitled to summary judgment on Plaintiff's Rehabilitation Act claim: (1) that Plaintiff is not disabled; (2) that in-person presence is an essential function of Plaintiff's job; and (3) that Plaintiff had thwarted the interactive process. Id. at 10–25. The Magistrate Judge rejected all three (3) of these arguments and recommended that Defendant's motion for summary judgment be denied on Plaintiff's Rehabilitation Act claim. See generally id. First, the Magistrate Judge found that Plaintiff is disabled within the meaning of the Rehabilitation Act because when Plaintiff's condition is active it causes him to lose his voice for seven (7) to ten (10) days at a time, substantially impairing his ability to speak. Id. at 12–15. Second, the Magistrate Judge found that there was sufficient evidence that Plaintiff could perform the essential functions of his job with a remote working arrangement such that he would be entitled to a reasonable accommodation. Id. at 22–23. Third, the Magistrate Judge rejected Defendant's argument that Plaintiff caused a breakdown in the interactive process when he rejected the proposed alternative accommodation of an air purifier in his office. Id. at 24–25. The Magistrate Judge opined that “[v]iewing the evidence in the light most favorable to Plaintiff, Defendant caused the breakdown in the interactive process.” Id. at 25.

In addressing Plaintiff's motion for partial summary Judgment, the Magistrate Judge began by noting that—as she already determined when addressing Defendant's motion—Plaintiff's ADA claims were barred by the Eleventh Amendment and therefore failed as a matter of law. Id. She then divided her analysis of Plaintiff's motion for summary judgment on his Rehabilitation Act claim into three (3) parts: “(a) whether Plaintiff is a qualified individual with a disability, (b) whether he was denied a reasonable accommodation, and (c) whether Plaintiff is entitled to judgment as a matter of law on Defendant's affirmative defenses.” Id. at 26. In the first part, the Magistrate Judge concluded that Plaintiff was “disabled” within the meaning of the Rehabilitation Act for essentially the same reasons she had described in the context of addressing Defendant's motion. Id. at 27–29. In addition, she concluded that Plaintiff was a “qualified individual” within the meaning of the Rehabilitation Act because “even assuming physical presence is required, and that remote work is not a reasonable accommodation, Plaintiff could still perform the essential functions of his position with a reasonable accommodation.” Id. at 30. In the second part, she determined that “viewing the evidence in the light most favorable to Defendant, ․ a reasonable jury could decide that his request to work remotely was not a reasonable accommodation.” Id. at 31. In the last part, the Magistrate Judge considered the two (2) affirmative defenses that Defendant had raised. See id. at 35–42. The first defense, which the Magistrate Judge referred to as the Stewart defense—named after the case Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997)—is based on the theory that Plaintiff caused a breakdown in the interactive process. The Magistrate Judge found that the Stewart defense fails as a matter of law for essentially the same reasons she had articulated in the context of Defendant's motion. R&R at 36–39. However, the Magistrate Judge recommended that Plaintiff's request for summary judgment be denied on Defendant's other affirmative defense—that the requested accommodation would impose an undue hardship on Defendant—on the ground that Defendant had created a genuine dispute of material fact as to whether it could prove that defense at trial. Id. at 42.

Both Parties filed objections to the Magistrate Judge's R&R, [Docs. 65, 66], and both Parties also filed responses to each other's objections,³ [Docs. 67, 68]. Each Party's objections are limited to Plaintiff's Rehabilitation Act claim. More specifically, Plaintiff objects to the Magistrate Judge's determination that a reasonable jury could conclude that in-person presence is an essential function of Plaintiff's job and her refusal to reject Defendant's undue hardship defense as a matter of law. [See generally Doc. 65]. By comparison, Defendant objects to the Magistrate Judge's determination that Plaintiff is disabled and argues that the Magistrate Judge should have concluded as a matter of law both that in-person presence is an essential function of Plaintiff's job and that his requested accommodation is unreasonable. [See generally Doc. 66].

Having been fully briefed, both Parties' objections are ripe for the Court's review, and the undersigned begins by setting forth the legal standards for reviewing the R&R and assessing cross-motions for summary judgment.

II. Legal Standards

A. Review of a R&R

The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” See 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b)(3). Portions of the R&R to which no objections have been made are reviewed for clear error. See Thomas v. Arn, 474 U.S. 140, 154 (1985); see also Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006); Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373 (N.D. Ga. 2006). However, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b)(3). A party objecting to a R&R “must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” See Schultz, 565 F.3d at 1361 (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). In addressing objections, it is within the district court's discretion whether or not to consider an argument that was not presented to the Magistrate Judge. See Williams v. McNeil, 557 F.3d 1287, 1290–92 (11th Cir. 2009).

B. Motions for Summary Judgment

The Court may grant summary judgment only if the record shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” See FED. R. CIV. P. 56(a). A factual dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on the motion, the Court must view all evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The moving party need not positively disprove the opponent's case; rather, the moving party must establish the lack of evidentiary support for the non-moving party's position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. See id. at 324–26. The essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251–52. “The mere existence of a scintilla of evidence” supporting the non-movant's case is insufficient to defeat a motion for summary judgment. Id. at 252. There must be evidence on which the jury could reasonably find for the non-moving party. See id. “ ‘If the evidence is merely colorable,’ or if it ‘is not significantly probative,’ then summary judgment is appropriate.” Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153, 1159 (11th Cir. 2022) (quoting Anderson, 477 U.S. at 249–50).

“The standard of review for cross-motions for summary judgment does not differ from the standard applied when one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.” GEBAM, Inc. v. Inv. Realty Series I, LLC, 15 F. Supp. 3d 1311, 1315–16 (N.D. Ga. 2013) (citing Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005)); accord United States v. Oakley, 744 F. 2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” (internal quotation omitted)). The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. See United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 972 F. Supp. 2d 1339, 1341 (N.D. Ga. 2013). Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. See id. at 1341; accord Oakley, 744 F.2d at 1555–56.

III. Discussion

As an initial matter, “[t]o establish a prima facie case of discrimination under the [Rehabilitation] Act, Plaintiff must show that (1) he has a disability; (2) he is otherwise qualified for the position; and (3) he was subjected to unlawful discrimination as the result of his disability.” Owens v. Governor's Off. of Student Achievement, 52 F.4th 1327, 1334 (11th Cir. 2022) (alteration in original) (quoting Sutton v. Lader, 185 F.3d 1203, 1207–08 (11th Cir. 1999)). “Unlawful discrimination under the Rehabilitation Act includes failing to provide reasonable accommodations for employees' known disabilities.” Id. “Thus, an employer's failure to reasonably accommodate a disabled individual itself constitutes discrimination” for purposes of the Rehabilitation Act “so long as that individual is ‘otherwise qualified,’ and unless the employer can show undue hardship.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007) (emphasis in original).⁴

In assessing the objections that both Parties have raised to the R&R, the Court begins with the objections that have been raised in the context of the first element of Plaintiff's Rehabilitation Act claim: whether Plaintiff is disabled. The Court will then address the Parties' objections concerning whether Plaintiff was otherwise qualified for his position as a tenured professor and whether he was subjected to unlawful discrimination as a result of Defendant's refusal to accommodate him through a remote working arrangement.

A. Whether Plaintiff is Disabled

In its objections, Defendant argues that it was error for the Magistrate Judge to conclude as a matter of law that Plaintiff is disabled. [Doc. 66 at 5]. “A disability for purposes of the [Rehabilitation] Act is a physical or mental impairment that substantially limits one of more major life activities.”⁵ Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017). In Defendant's view, Plaintiff's allergy issues do not qualify as a disability for purposes of the Rehabilitation Act because they occur only episodically in certain regions of the country.⁶ [Id. at 6–8]. Defendant argues that no reasonable jury could conclude that Plaintiff's allergy issues substantially limit a major life activity, and at the very least, the question of whether Plaintiff is disabled should be submitted to the jury. [Id. at 5].

Defendant cites three (3) cases in support of its theory that a plaintiff is not disabled when the claimed disability is “episodic,” but the Court agrees with the Magistrate Judge that none of those cases are persuasive. See R&R at 14 n.3. In one of the cases Defendant cites, Svoboda v. TimkenSteel Corp., No. 5:18-cv-01443, 2020 WL 1513710 (N.D. Ohio Mar. 30, 2020), the plaintiff allegedly suffered from asthma, but the court emphasized that “the testimony from all examining physicians was that the condition does not substantially limit any major life activities.” Id. at *7 (emphasis in original). Here, in contrast, there is medical evidence that Plaintiff was diagnosed with “Allergic Fungal Sinusitis,” [Doc. 40-11], and Plaintiff's physician, Dr. Andrew Pugliese, stated that as a result of his condition, Plaintiff “experiences recurrent sinus infections, laryngitis, difficulty breathing, speaking, thinking, and concentrating,” [Doc. 40-12]. Plaintiff also stated that while he was living in Georgia he would experience flare ups four (4) to six (6) times a year and lose his ability to speak for seven (7) to ten (10) days at a time. R&R at 27. And as the Magistrate Judge noted, speaking is a major life activity for purposes of the Rehabilitation Act. Id. at 12 (citing 29 C.F.R. § 1630.2(i)(1)(i)).

In another case Defendant cites, Thomas v. Comcast Cable Communications Management, LLC, Civil Action No. 1:19-cv-01953, 2020 WL 13850733 (N.D. Ga. Nov. 24, 2020), the plaintiff claimed to suffer from “unspecified asthma,” but the court opined that there was not “any medical evidence in the record ․ that Plaintiff was substantially limited in his ability to breathe.” Id. at *11. In addition, the plaintiff in Thomas “repeatedly reported that his symptoms would totally subside within fifteen to thirty minutes if he went outside to get some fresh air.” Id. at *12. That is a stark contrast from Plaintiff's condition, which lasted seven (7) to ten (10) days at a time whenever he experienced a flare up and led him to relocate to a different part of the country pursuant to his physician's medical advice. In the third case Defendant cites, Whitesell v. FMS Financial Management Services, LLC., No. 3:18-CV-00496, 2020 WL 2770017 (M.D. Tenn. May 28, 2020), as the Magistrate Judge explained, “[t]he only medical evidence the plaintiff presented was a doctor's note saying her ‘impairment substantially limits one or more major life activities’ without identifying any major life activity and without explaining how the ‘impairment “substantially limits” an activity.’ ” R&R at 14 n.3 (quoting Whitesell, 2020 WL 2770017, at *5).

Furthermore, the fact that Plaintiff's flare ups occur episodically does not prevent his condition from being a disability because Plaintiff is still significantly impaired by the condition “when afflicted.” Arline v. Sch. Bd. of Nassau Cnty., 772 F.2d 759, 764 (11th Cir. 1985); see also 29 C.F.R. § 1630.2(j)(1)(vii) (“An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”). And as the Magistrate Judge observed, “the fact that Plaintiff has mostly been able to mitigate the effects of his condition by moving to California does not prevent his condition from being a disability.” R&R at 28.

For all these reasons, the Court finds no error with the Magistrate Judge's conclusion that Plaintiff is disabled as a matter of law.

B. Whether Plaintiff Is a Qualified Individual Who Can Perform the Essential Functions of the Job

To satisfy the second element of his Rehabilitation Act claim, Plaintiff “must prove that he is a ‘qualified individual’—that is, someone with a disability who, ‘with or without reasonable accommodation, can perform the essential functions of the employment position[.]’ ” Holly, 492 F.3d at 1256. To be a qualified individual, “[P]laintiff must show either that he can perform the essential functions of his job without accommodation, or, failing that, ․ that he can perform the essential functions of his job with a reasonable accommodation.” Id. (quoting D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005)). “If [Plaintiff] is unable to perform an essential function of his job, even with an accommodation, he is, by definition, not a ‘qualified individual’ and, therefore, not covered under the [Rehabilitation Act].” Id. (quoting D'Angelo, 422 F.3d at 1229).

As the Magistrate Judge noted, “[t]he Parties agree that the written job description for Plaintiff's position identifies ‘teaching, research, and service’ as the three essential functions. But those generalized categories provide no guidance as to whether the functions need to be performed in person.” R&R at 16 (internal citation omitted); see Plaintiff's Statement of Material Facts ¶ 27 [Doc. 40-1]. The Parties vigorously dispute whether physical presence on campus is essential to perform those functions, and the Magistrate Judge ultimately found that the issue should go to a jury. See R&R at 30, 35.

In its objections, Defendant argues that the Magistrate Judge should have given more weight to the employer's judgment that physical presence is an essential function of a tenured professor's job. [Doc. 66 at 8–9]. Granted, “the employer's view is entitled to substantial weight” in determining what is an essential function. D'Angelo, 422 F.3d at 1233. But the Magistrate Judge fully acknowledged this. R&R at 16. And as the Magistrate Judge also recognized, “this factor alone may not be ‘conclusive[ ].’ ” Holly, 492 F.3d at 1258 (quoting D'Angelo, 422 F.3d at 1233); see R&R at 16.

What is more, the Eleventh Circuit has explained that “when considering the employer's judgment regarding what is an essential function, we have previously considered not only the company's ‘official position,’ but also testimony from the plaintiff's supervisor.” Holly, 492 F.3d at 1257. And as the Magistrate Judge and Plaintiff both emphasize, Plaintiff's supervisor and GSU's Assistant Director of Benefits were originally prepared to approve Plaintiff's remote working arrangement as an accommodation. See R&R at 17–18 (noting that “the deans and supervisors know Plaintiff's job responsibilities, and they saw no issue with him working remotely”); [Doc. 68 at 10] (arguing that “[a]ll the people at the time who knew the specifics of Dr. Greene's job and of his request knew that, in his particular case, another year of remote teaching would have enabled, not impaired, his ability to perform the essential functions of his job”).

Defendant next argues that in assessing the essential functions of Plaintiff's job the Magistrate Judge was overly focused on teaching as opposed to the other components of Plaintiff's job as a tenured professor. [Doc. 66 at 9]. Defendant contends that some of Plaintiff's additional responsibilities as a tenured professor cannot be performed remotely, including “[b]eing present on campus to have discussions with his students before, during, and after class,” “[s]pending time with GSU students and potential students, other professors, and members of the local music community in-person,” and “the need for Plaintiff to participate in in-person meetings.” [Id. at 9–10, 13]. Defendant may have a point that some of Plaintiff's non-teaching responsibilities would be difficult for him to perform remotely, but as the Magistrate Judge noted, the record indicates that Plaintiff expressed a willingness to make short trips to Atlanta to fulfill those additional responsibilities. See R&R at 22, 37.

Defendant disputes the assertion that Plaintiff was willing to come to campus and argues that some of the statements the Magistrate Judge relied on pre-dated Plaintiff's accommodation request from 2021. [Doc. 66 at 12–13]. Defendant specifically points to Plaintiff's April 23, 2021 accommodation request form in which he stated, “[t]he current arrangement prevents me from being in a geographic location (SE, US) where I am often ill and unable to perform my job responsibilities.” [Doc. 40-23 at 3]. But several months later Plaintiff clarified, “[a]lthough short trips to the southeast are usually not problematic unless there is a lot of rainfall, longer stays are.” [Doc. 40-26 at 1]. Further, as Plaintiff notes, there is no evidence that Plaintiff was ever asked to visit Atlanta and refused. [Doc. 68 at 7–8]. All things considered, the Court finds that at this stage there is a genuine dispute of material fact concerning Plaintiff's ability to perform the non-teaching components of his job.

With respect to the teaching component, Defendant argues that the Magistrate Judge should have placed more emphasis on negative course evaluations Plaintiff received as evidence that he could not successfully perform his teaching responsibilities remotely. [Doc. 66 at 10–12]. The Court agrees with the Magistrate Judge that the course evaluations are a “mixed bag.” See R&R at 33 (“[T]he student comments regarding Plaintiff's performance are a mixed bag. When viewed in the light most favorable to Plaintiff, they weigh against Defendant. But when viewed in the light most favorable to Defendant, they weigh against Plaintiff.”). But as the Magistrate Judge also noted, Plaintiff received negative comments from students about online classes before the pandemic too, yet he was still permitted to teach remotely. Id. at 20.

In Plaintiff's own objections with respect to this element, he primarily challenges the weight of the evidence Defendant submitted in the form of negative course evaluations and an affidavit from an Interim Dean. [See Doc. 65 at 3–6]. He contends that the negative course evaluations “are at best tangentially relevant” to the issue of his position's essential functions, “lack credibility” because they were written anonymously, and “represent only a minority of the set.” [Id. at 4]. He adds that the affidavit from the Interim Dean speaks “only in generalities” about GSU's preference for its faculty members to be present in person and does not directly address whether and to what extent in-person presence is an essential function of the job. [Id. at 4–5]. He argues that contrary to Defendant's assertions, “[t]he vast weight of the evidence shows Defendant railroaded him, with a pre-ordained denial, without any regard to his particular job duties or needs, in a general push to bring the whole faculty back to campus as the COVID pandemic eased.” [Id. at 5]. Plaintiff is welcome to raise these arguments at trial. Ultimately, though, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255.

Although neither side has presented sufficient evidence for the Court to conclude as a matter of law that physical presence is an essential function of Plaintiff's job, the Court finds that both Parties have presented sufficient evidence to create a fact dispute on this point. As such, the Parties' objections with respect to the second element of Plaintiff's Rehabilitation Act claim are overruled.

The Court does, however, find one error with the R&R with respect to this element. In analyzing Plaintiff's motion for summary judgment, the Magistrate Judge simultaneously granted Plaintiff summary judgment on the second element of his Rehabilitation Act claim while also finding that there is a fact dispute about whether in-person presence was an essential function of Plaintiff's job. Compare R&R at 29 (“The undersigned also RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be GRANTED as to the second element of his claim—whether he is a ‘qualified individual’ within the meaning of the Rehabilitation Act.” (emphasis in original)), with id. at 35 (“[A] reasonable jury could conclude that in-person presence was an essential function of Plaintiff's position, and that Plaintiff's request for remote work would not enable him to perform that function.”). If in-person presence is an essential function of Plaintiff's job and Plaintiff could not perform that essential function with or without the requested accommodation, then he would not be a qualified individual for purposes of the Rehabilitation Act. See Holly, 492 F.3d at 1256–57 (“We therefore agree with the district court that if strict punctuality is indeed an essential function of Holly's position as a mold polisher, then he cannot perform this function ‘with or without reasonable accommodation,’ he is therefore not a ‘qualified individual’ under the ADA, and his claims ultimately must fail.” (emphasis in original)). Therefore, contrary to the Magistrate Judge's recommendation, the Court denies Plaintiff's request for summary judgment on the second element of his Rehabilitation Act claim.

C. Whether Defendant's Denial of Plaintiff's Requested Accommodation Was Discriminatory

Finally, both Parties object in different ways to the Magistrate Judge's conclusions regarding whether Defendant's denial of the requested accommodation was discriminatory. Defendant argues that the Magistrate Judge should have found as a matter of law that the proposed accommodation was unreasonable. [Doc. 66 at 14]. By comparison, Plaintiff argues that the Magistrate Judge should have found that Defendant's undue hardship defense fails as a matter of law. [Doc. 65 at 1].

Beginning with Defendant's objection, Defendant argues that the question of whether physical presence is an essential function of Plaintiff's job for purposes of the second element discussed above also informs the question of “the reasonableness of any proposed accommodation” for purposes of the third element. [Doc. 39 at 9–10]. In this regard, Defendant's arguments pertaining to the third element rise and fall with its arguments pertaining to the second element because they depend on the Court accepting Defendant's argument that in-person presence is essential to Plaintiff's job. [See Doc. 66 at 15] (arguing that “[b]ecause in-person presence is an essential function of a tenured professor and because Greene cannot perform these important aspects while working fully remotely from California, Defendant is entitled to summary judgment because Plaintiff's request to work remotely from California was unreasonable”). Consequently, the same fact issues that preclude the Court from granting summary judgment to Defendant on the second element also preclude the Court from granting summary judgment for Defendant on its overlapping arguments raised in the context of the third element.

As an additional rationale, Defendant argues that Plaintiff's requested accommodation is unreasonable because “for the rest of his career, GSU would always be limited in what classes could be assigned to Plaintiff, always be forced to allow Plaintiff to participate in meetings virtually even though the meeting was otherwise being conducted in-person, always have to plan around whether Plaintiff could be in Atlanta or not, and always find other professors to perform the in-person components of Plaintiff's job.” [Id. at 14]. But even if that were true, it would still be up to the jury to decide whether those considerations render Plaintiff's requested accommodation unreasonable. For all these reasons, the Court considers it premature to hold that Plaintiff's requested accommodation is unreasonable as a matter of law.

At the same time, the Court also is not prepared to hold that Defendant's undue hardship defense fails as a matter of law, particularly in light of the Court's determination that there is a fact dispute concerning whether physical presence is an essential function of Plaintiff's job. In response to Plaintiff's request for summary judgment on this point, Defendant identifies a variety of specific burdens that Plaintiff's requested accommodation could impose, including limiting the courses that Plaintiff could be assigned, reducing his availability for conversations with students, and adversely affecting meeting productivity if Plaintiff participated remotely in faculty and committee meetings. [Doc. 67 at 8]. Though Plaintiff contends that there is insufficient evidence that any of these burdens are “undue” [Doc. 65 at 2], the Court considers the degree and severity of the burdens imposed by the accommodation to be a fact question for the jury to resolve.

IV. Conclusion

For the reasons set forth above, the Court OVERRULES Plaintiff's objections to the R&R [Doc. 65] and SUSTAINS IN PART AND OVERRULES IN PART Defendant's objections to the R&R [Doc. 66].⁷ The Court ADOPTS the R&R [Doc. 60] as herein modified.

The Court GRANTS IN PART AND DENIES IN PART Defendant's Motion for Summary Judgment. [Doc. 39]. Specifically, the Court GRANTS Defendant's motion as to Count I (Title I of the ADA), Count II (Title II of the ADA), and Count IV (breach of contract) and thus DISMISSES WITHOUT PREJUDICE those counts.⁸ The Court DENIES Defendant's motion for summary judgment on Count III (Rehabilitation Act).

The Court GRANTS Plaintiff's Motion for Partial Summary Judgment [Doc. 40] to the extent he seeks summary judgment as to the first element of Count III (Rehabilitation Act) and as to Defendant's Stewart defense. The Court DENIES Plaintiff's motion in all other respects.

By way of closing, the Court notes that at the time they filed their Joint Preliminary Report and Discovery Plan the Parties indicated that there was a possibility of settlement after discovery, [Doc. 7 at 12], and the Magistrate Judge who was initially assigned to this matter observed that “mediation could be successful here, given the parties' indication that there is a possibility of settlement,” [Doc. 11 at 1]. The Court agrees that mediation could be successful and would potentially be beneficial in this case, particularly now that the Parties have proceeded past discovery and summary judgment.

Accordingly, the Court REFERS this case to Chief Magistrate Judge Russell G. Vineyard for assignment to the next available Magistrate Judge for the purpose of conducting mediation. The Court STAYS this case pending mediation. The Court DIRECTS the Parties to notify the Court of the outcome of mediation within seven (7) days of its conclusion.

SO ORDERED, this 18th day of July, 2024.

FINAL REPORT AND RECOMMENDATION

This case is before the Court on Defendant's Motion for Summary Judgment ([Doc. 39]) and Plaintiff's Motion for Partial Summary Judgment ([Doc. 40]). The undersigned RECOMMENDS that both motions be GRANTED in part and DENIED in part as explained below.

FACTUAL BACKGROUND

This factual background is drawn from the parties' statements of material facts when the facts are not properly disputed. If the facts are in dispute and both parties cite record evidence in support of their position, the Court draws on the record itself. In deciding each of the motions for summary judgment, the Court views all evidence and makes all factual inferences in the light most favorable to whoever is the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993).

Plaintiff began working for Georgia State University (“GSU”).¹ in the School of Music in 2001 and he gained tenure in 2008. [Doc. 51 ¶¶2–3]. Plaintiff did not instruct students on how to sing or play instruments. [Id. ¶4]. Instead, Plaintiff taught courses on musical history and culture. [Id. ¶5]. Plaintiff suffers from a condition called allergic fungal sinusitis that causes him to periodically lose his voice because of atmospheric mold. [Doc. 39-2 ¶5]. When Plaintiff lived in Georgia, he would have “flare ups” four to six times per year that caused him to entirely lose his voice for seven to ten days. [Id. ¶6]. In 2013, Plaintiff's physicians recommended that he consider moving to the Southwest or Northeast of the United States because those climates have less mold. [Id. ¶7].

In 2015, Plaintiff was approved to teach online for up to two weeks. [Id. ¶¶10–11]. In early 2017, Plaintiff was approved teach fully remotely from California. [Id. ¶17]. Plaintiff taught remotely from California from the Fall of 2017 until the end of his employment in May 2022. [Id. ¶4]. While teaching remotely, Plaintiff would visit Atlanta “to perform required on-campus duties,” but would often have “flare ups” and need to return to California. [Id. ¶20]. While in California, Plaintiff has only had one “flare up” during an unusually rainy season. [Id. ¶ 19].

The three criteria GSU uses to assess its faculty are teaching, research, and service. [Doc. 51 ¶30] In 2016, Plaintiff's was rated “very good” in all three categories. [Id. ¶31]. After Plaintiff began teaching from California, he never scored below “very good” in any category, and in 2020 his scores in teaching and service improved to “excellent.” [Id. ¶32]. But GSU's policy is that an associate professor must be “rated as at least Excellent in both Research and Teaching and at least Very Good in Service” to “meet expectations.” [Doc. 39-2 ¶31]. If a professor does not “meet expectations,” they are placed on a performance improvement plan. [Id. ¶32]. These plans “provide an agreed-upon path for associate professors to progress toward promotion.” [Doc. 58 ¶2]. Plaintiff completed one of these performance improvement plans in 2018, indicating that he needed to make visits to campus, be available for in-person meetings, attend “music-related activities in the Atlanta area,” and deliver “pre-concert lectures at the Rialto Center.” [Doc. 52-3 at 4].

Chester Phillips, the Director of GSU's School of Music and Interim Dean of the College of Arts, expects tenured professors “to serve on committees, serve in administrative roles for professional organizations, participate in recruiting activities, attend recitals and concerts, be involved in campus and community activities.” [Doc. 39-3 ¶18]. Face-to-face instruction is the “preferred modality” for classes at GSU, and only 1.3% of classes in the School of Music are offered only online. [Doc. 39-2 ¶¶21–22]. But in March 2020, GSU was forced to shift to fully remote classes because of the COVID-19 pandemic. [Id. ¶39]. During the pandemic, “GSU developed significant evidence that some of its students struggled in online modalities and did not achieve good academic outcomes.” [Id. ¶41].

In 2021, Plaintiff was told that he needed to apply for an accommodation though GSU's Americans with Disabilities Act (“ADA”) policy. [Id. ¶42]. Plaintiff did so. [Doc. 51 ¶40]. GSU's Assistant Director of Benefits met with Plaintiff's supervisor, and they decided that Plaintiff's request to work remotely was reasonable. [Doc. 39-2 ¶45]. But an attorney in GSU's legal was concerned that they had not “fully analyzed the essential functions of the job.” [Id. ¶47]. GSU stated that it planned to “conduct air quality testing” of Plaintiff's potential office, and he responded by saying his impairment was “not related to the conditions within any specific building” but was instead caused by the “amount of mold in the atmosphere.” [Doc. 40-26]. In a letter dated August 20, 2021, GSU stated that Plaintiff's request to work “from California is not a reasonable accommodation.” [Doc. 40-29 at 2]. Instead, GSU offered Plaintiff “an air purifier for [his] office.” [Id.].

Plaintiff appealed the decision, explaining that he has “severe reactions” to mold allergens that “are atmospheric and regional,” not related to the mold levels in any specific office. [Doc. 52-5 at 1]. In support of his position, Plaintiff provided a note from his doctor explaining that an air purifier in Plaintiff's office “will not help [Plaintiff's] symptoms, as it is not mold in his office or teaching space that is the problem.” [Doc. 40-12 at 1]. Rather, the high mold counts “ubiquitous to the [S]outheastern part of the United States is the major source of his exposure and consequent symptoms.” [Id.]. GSU denied Plaintiff's appeal, stating that its accommodation was sufficient because it “addresses the aspects of these atmospheric triggers within its control, i.e., the quality of the air in [Plaintiff's] on-site work environment.” [Doc. 40-30 at 2–3] (emphasis in original). Nevertheless, GSU allowed Plaintiff to teach remotely for the 2021–22 school year. [Doc. 39-2 ¶¶56–58]. The classes Plaintiff previously taught are now all taught face-to-face. [Id. ¶59]. There are various other disputed facts discussed in the analysis below.

LEGAL STANDARD

Summary judgment is appropriate when “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). The movant bears the initial responsibility of asserting the basis for her motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Apcoa, Inc. v. Fid. Nat'l Bank, 906 F.2d 610, 611 (11th Cir. 1990). A defendant is not required, however, to negate her opponent's claim; the movant may discharge her burden by merely “ ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. A plaintiff is then required to “go beyond the pleadings” and present competent evidence designating specific facts showing that there is a genuine disputed issue for trial. Id. at 324.

While the court is to view all evidence and factual inferences in a light most favorable to the non-moving party, Nat'l Parks Conservation Ass'n v. Norton, 324 F. 3d 1229, 1236 (11th Cir. 2003), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). A fact is material when it is identified as such by the controlling substantive law. Id. at 248. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586–87. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Anderson, 477 U.S. at 249–50.

LEGAL ANALYSIS

I. Defendant's Motion for Summary Judgment

Plaintiff brings four claims. First, Plaintiff brings a claim under Title I of the ADA, 42 U.S.C. § 12101, et seq. [Doc. 1 ¶¶56–65]. Second, Plaintiff brings a claim under Title II of the ADA. [Id. ¶¶66–72]. Third, Plaintiff brings a claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq. [Doc. 1 ¶¶73–76]. Last, Plaintiff brings a breach-of-contract claim. [Id. ¶¶77–80]. Defendant argues Plaintiff's ADA claims and the breach-of-contract claim are barred by sovereign immunity. [Doc. 39-1 at 5, 25]. Defendant also contends that it is entitled to summary judgment on Plaintiff's Rehabilitation Act claim. [Doc. 39-1 at 5–25]. The undersigned addresses each argument in turn.

A. Sovereign Immunity

Plaintiff fails to address Defendant's sovereign immunity argument and has thus forfeited this point. See [Doc. 52]; see also Green v. Graham, 906 F.3d 955, 963 (11th Cir. 2018). Defendant is an “arm of the state” for purposes of the Eleventh Amendment and is entitled to sovereign immunity unless it is waived or validly abrogated by Congress. Barnes v. Zaccari, 669 F.3d 1295, 1308 (11th Cir. 2012). With respect to the breach-of-contract claim, Georgia has waived its sovereign immunity only when there is a “written contract.” Ga. Const. Art. I, § II, ¶ IX(c); O.C.G.A. § 50-21-1(a). Here, there is no evidence of a written contract between the parties. Even if there were, the Eleventh Amendment would still bar Plaintiff from asserting a breach-of-contract claim in this Court. Barnes, 669 F.3d at 1308–09 (holding that “Georgia has not waived its Eleventh Amendment immunity from suit in federal court for breach of contract claims”). With respect to Plaintiff's first ADA claim, the Supreme Court has held that Title I does not validly abrogate Eleventh Amendment immunity from suit by private individuals for money damages. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).

Plaintiff's second ADA claim is more complicated because Title II has a “wide variety of applications” and is not treated “as an undifferentiated whole.” Tennessee v. Lane, 541 U.S. 509, 530–31 (2004). Instead, the analysis depends on the right at issue. The cases holding that Title II can abrogate sovereign immunity are inapposite because none involve claims of employment discrimination. See Lane, 541 U.S. at 533–34 (involving “cases implicating the fundamental right of access to the courts”); Nat'l Ass'n of the Deaf v. Florida, 980 F.3d 763, 770–74 (11th Cir. 2020) (involving a claim asserting “that deaf people often cannot access government meetings either due to a lack of interpreters or other necessary accessibility features”); Ass'n for Disabled Americans, Inc. v. Fla. Int'l Univ., 405 F.3d 954, 956–59 (11th Cir. 2005) (involving “state discrimination against students with disabilities”). While Garrett did involve a claim of employment discrimination, the Supreme Court declined to reach the issue of whether Title II “is appropriate legislation under § 5 of the Fourteenth Amendment.” 531 U.S. at 360 n.1. Still, the analysis in Garrett is instructive.

In Garrett, the Supreme Court held that Congress did not sufficiently “identify a pattern of irrational state discrimination in employment against the disabled.” 531 U.S. at 368. While Garrett addressed only Title I claims, “it would be illogical to find that history of state discrimination against the disabled in employment is insufficient to permit Congress to enact Title I, but that that same history is somehow sufficient to allow Congress to fashion Title II.” Leverette v. Alabama Revenue Dep't, 453 F. Supp. 2d 1340, 1345 (M.D. Ala. 2006). Courts in this Circuit have uniformly agreed, holding that a Title II claim for “disability discrimination in employment” is barred by the Eleventh Amendment. Fields v. Bd. of Trustees of the Ga. Military Coll., 2024 WL 375387, at *7 (M.D. Ga. Jan. 31, 2024); Culverhouse v. S. Union Cmty. Coll., 2021 WL 2417154, at *5 (M.D. Ala. June 14, 2021); Lucas v. Ala. Dep't of Pub. Health, 2016 WL 335547, at *4 (M.D. Ala. Jan. 7, 2016); Clifton v. Georgia Merit Sys., 478 F. Supp. 2d 1356, 1368 (N.D. Ga. 2007); Leverette, 453 F. Supp. 2d at 1345; Williamson v. Ga. Dep't of Human Res. & Ga. Reg'l Hosp., 150 F.Supp.2d 1375, 1381–82 (S.D. Ga. 2001).

The Eleventh Circuit has not weighed in on this specific issue but did recently conclude that the “lack of evidence regarding a pattern of unconstitutional employment discrimination by the States” barred a Title V claim “based on the exercise of a right arising only from Title I.” Dupree v. Owens, 92 F.4th 999, 1007 (11th Cir. 2024). As discussed above, Plaintiff's ADA claims and his breach-of-contract claim are barred by sovereign immunity. Thus, the undersigned RECOMMENDS that those counts be DISMISSED without prejudice. Id. at 1008 (“Because the dismissals were based on sovereign immunity grounds, the jurisdictional nature of the dismissal requires it to be entered without prejudice.”).

B. The Rehabilitation Act Claim

To establish a prima facie case of discrimination under the Rehabilitation Act, Plaintiff must show that he: (1) has a disability; (2) is otherwise qualified for the position; and (3) was subjected to unlawful discrimination as the result of his disability. Owens v. Governor's Off. of Student Achievement, 52 F.4th 1327, 1334 (11th Cir. 2022). For purposes of the Rehabilitation Act, discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).²

In challenging Plaintiff's Rehabilitation Act claim, Defendant first argues Plaintiff is not disabled. [Doc. 39-1 at 6–9]. Second, Defendant argues Plaintiff could not perform an essential function of his job. [Id. at 9–23]. And third, Defendant argues it “engaged in good faith in the interactive process.” [Id. at 23–25]. The undersigned addresses each argument in turn.

1. Whether Plaintiff has a disability

Defendant contends Plaintiff does not have a disability because his “episodic allergy” is a “regional impairment[.]” [Doc. 39-1 at 6–9]. As an initial matter, Plaintiff argues Defendant “admits” that he has a disability. [Doc. 52 at 5]. The first two pieces of evidence Plaintiff points to are communications that simply do not “challenge his right to reasonable accommodations,” they do not admit Plaintiff has a disability. See [Doc. 52-2 ¶1]. The third piece of evidence is a memorandum where GSU says it made an “initial determination that [Plaintiff has] a disability.” [Doc. 40-30 at 2]. That does not establish that Plaintiff has “a physical or mental impairment that substantially limits one or more major life activities” or “a record of such impairment.” See 42 U.S.C.A. § 12102(1)(A), (B). But it does indicate Plaintiff was “regarded as” having a disability, which entitles him to the protections of the Rehabilitation Act. See id. § 12102(1)(C); see also D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1239 (11th Cir. 2005) (holding that “an individual falling within the ‘regarded as’ category of disability under the ADA is entitled to a reasonable accommodation no less than an individual satisfying the actual-impairment definition of disability.”).

In any event, a reasonable jury could conclude that Plaintiff has a physical impairment that “substantially limits one or more of the major life activities.” 29 C.F.R. § 1630.2(g)(1)(i). Plaintiff has a physiological condition that affects his speech organs. Id. § 1630.2(h)(1). And that condition affects Plaintiff's ability to speak—a major life activity. Id. § 1630.2(i)(1)(i). The only question is whether Plaintiff's impairment “substantially limits” his ability to speak. On this point, Defendant makes three arguments.

Defendant argues Plaintiff's condition “is not significant” because “he simply loses his voice for [7] to 10 days and is otherwise able to fully function.” [Doc. 39-1 at 9]. But “speaking” is a major life activity. 29 C.F.R. § 1630.2(i)(1)(i). Defendant's dispute as to whether Plaintiff's impairment limits other life activities, such as “his ability to breath [sic], think, or concentrate” is irrelevant. [Doc. 51 ¶8]. “An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.” 29 C.F.R. § 1630.2(j)(1)(viii).

Defendant's argument that Plaintiff's inability to speak is “periodic” and “mostly seasonal” can also be rejected out of hand. [Doc. 39-1 at 9]. “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 29 C.F.R. § 1630.2(j)(1)(vii). When active, Plaintiff's condition causes him to lose his voice for 7 to 10 days at a time. See [Doc. 39-2 ¶¶5–6]. The fact that Plaintiff's condition is “episodic” does not prevent it from being a disability. 29 C.F.R. § 1630.2(j)(1)(vii).

Defendant's argument that Plaintiff can live in “the Northeast and Southwest” without having annual “flare ups” merits more discussion, but none of the authority Defendant cites is persuasive. See [Doc. 39-1 at 8–9]. The first case Defendant cites is Miller v. AT & T Network Sys., 722 F. Supp. 633 (D. Or. 1989), a case dealing with disability discrimination under Oregon state law. The plaintiff in Miller argued that he was substantially limited in his “employability,” and he lost at summary judgment because he was only able to show that his condition limited “his ability to obtain a single position.” 722 F. Supp. at 639. Here, by contrast, Plaintiff is asserting that his condition limits his ability to speak, and it is undisputed that his condition impacts more than just “his ability to obtain a single position.” The other unpublished cases cited by Defendant are similarly unpersuasive. See [Doc. 39-1 at 8–9].³

Defendant's focus on Plaintiff's ability to mitigate the effects of his condition by living in other parts of the United States is misguided. “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” 29 C.F.R. § 1630.2(j)(1)(vi). Instead, the Court must compare Plaintiff “to most people in the general population.” Id. § 1630.2(j)(1)(ii). When Plaintiff last lived in an area with frequently high mold counts—Georgia—Plaintiff would entirely lose his voice for seven to ten days at a time, multiple times per year. See [Doc. 39-2 ¶¶5–6]; see also [Doc. 51 ¶¶10–11]. Most people in the general population can live in Georgia without losing their ability to speak for a week or more at a time, multiple times per year. See 29 C.F.R. § 1630.2(j)(1)(v) (“The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.”). Thus, Plaintiff has a disability within the meaning of the Rehabilitation Act because he has a physical impairment that that “substantially limits” his ability to speak—when active. See 29 C.F.R. § 1630.2(g)(1)(i).

2. Whether in person presence is an essential function

Defendant's next argument is that Plaintiff could not perform an essential function of his position. See [Doc. 39-1 at 9–12]. Defendant correctly notes that physical presence is frequently “an essential function of most jobs.” [Doc. 39-1 at 12–13]. But the analysis of whether something is an essential function of a particular job must be made “on a case-by-case basis.” Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). The essential functions of a position are “the fundamental job duties,” not “the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). In deciding if a function is essential, the Court considers evidence such as the employer's judgment, the written job description, the amount of time spent performing the function, and the work experience of other employees holding a similar job. Id. § 1630.2(n)(3).

As Defendant notes, an “employer's view is entitled to substantial weight” in deciding if something is an essential function, but it is not “conclusive[.]” D'Angelo, 422 F.3d at 1233. There is no dispute that GSU's “primary course modality is face-to-face instruction” and that very few of its classes are taught fully remotely. [Doc. 39-2 ¶¶2, 21–22]. But this does not, in and of itself, establish that all tenured professors must be in person. To be sure, if a professor teaches only online classes, this limits the classes he can teach and limits GSU's “ability to make last-minute changes to teaching assignments.” [Doc. 39-1 at 19]. But such arguments go to whether remote teaching imposes an undue hardship, they do not demonstrate that in person presence is fundamental to being a tenured professor.⁴ The parties agree that the written job description for Plaintiff's position identifies “teaching, research, and service” as the three essential functions. [Doc. 51 ¶27]. But those generalized categories provide no guidance as to whether the functions need to be performed in person.

Looking to the work experience of other employees, Plaintiff asserts that Defendant “allows other associate professors to work fully remotely,” but the evidence he cites does not support his position. [Doc. 52 at 9]. The first individual is not an associate professor, but rather a lecturer. [Doc. 49-18]. Lecturers “have different responsibilities than tenured and tenure-track professors.” [Doc. 49 ¶15]; [Doc. 59-1 ¶15]. The second individual was not allowed to work “fully remotely,” as Plaintiff claims, “she is required to attend any in-person meetings.” [Doc. 49 ¶12]; [Doc. 59-1 ¶12]. However, Defendant is also wrong in asserting that no “tenured professor ․ has been permitted to work fully remotely.” [Doc. 39-1 at 14] (emphasis omitted). The evidence Defendant cites shows that Plaintiff is “unaware of any other tenured professor that is permitted to work fully remote.” [Doc. 39-2 ¶62] (emphasis added). There is one tenured professor who was allowed to work remotely for years—Plaintiff. See [Doc. 51 ¶25]. Defendant recognizes this as “the elephant in the room” and suggests four reasons why it still thinks it is entitled to summary judgment. [Doc. 39-1 at 20–22].

First, Defendant asserts that “the individuals who allowed [Plaintiff] to work from California were not qualified to determine whether an accommodation was legally required.” [Doc. 39-1 at 20]. That is not what the evidence says. The evidence Defendant cites says that “deans and supervisors” are not trained to assess whether an accommodation is appropriate. [Doc. 39-2 ¶43]. Plaintiff's request to continue to work remotely was approved not just by his supervisor, but also by GSU's “Assistant Director of Benefits, FMLA & ADA,” someone presumably well versed in assessing reasonable accommodations. [Id. ¶45]. Additionally, as Plaintiff points out, the deans and supervisors know Plaintiff's job responsibilities, and they saw no issue with him working remotely. See [Doc. 52 at 24]; see also [Doc. 42 at 18:19–19:16] (Plaintiff's supervisor testifying that he “didn't think much more about it” after learning that Plaintiff worked remotely and stating that the dean never expressed any “dissatisfaction on that particular issue”).

Second, Defendant asserts that Plaintiff's “arrangement was semester-to-semester” and could be terminated “if his supervisor's decided the arrangement was not working.” [Doc. 39-1 at 20]. Plaintiff disputes this contention. [Doc. 52-1 ¶18]. But even accepting it as true, it is unavailing. There is no evidence that Plaintiff's supervisor decided “the arrangement was not working,” as discussed more below. Plaintiff's supervisor believed Plaintiff's “request to continue to work remotely was reasonable.” [Doc. 39-2 ¶45]. It was an attorney in Defendant's legal department who “was concerned with how a professor working on the other side of the country could perform essential functions” and decided that Plaintiff's request was not a reasonable accommodation. [Doc. 39-2 ¶49]; see also [Doc. 44 at 108:22–109:5].

Third, Defendant contends Plaintiff “never performed satisfactorily in all three categories [teaching, research, and service] during his time working fully remotely.” [Doc. 39-1 at 21]. This is true, as far as it goes,⁵ but it is a red herring. Defendant does not contend Plaintiff was unable to perform the essential functions of his position before he began teaching exclusively online classes. At that point, Plaintiff was rated “very good” in all three categories. [Doc. 53 ¶31]. After Plaintiff began teaching remotely, he scored at least “very good” in each category and eventually improved to “excellent” in teaching and service. [Id. ¶32].⁶ In other words, Defendant points to Plaintiff's performance while working remotely as evidence that he could not perform the essential functions of his position even though—by Defendant's own assessment—Plaintiff's performance improved when he taught remotely.

Fourth, Defendant argues various “factors” allowed Plaintiff to continue working remotely “even though he was not performing the essential functions of his job.” [Doc. 39-1 at 21–22]. Because of a “lag” in the way GSU makes “scheduling decisions,” Plaintiff “was almost guaranteed at least a year” of teaching online. [Id.]. But GSU received “a noticeable increase of negative student comments once courses were offered online” in 2017. [Doc. 39-1 at 17]. Indeed, GSU received a complaint telling it to “[e]liminate the online portion” of Plaintiff's classes in 2016. [Doc. 39-1 at 17]. But GSU continued to allow Plaintiff to teach remotely until the Fall of 2021. If these student comments show Plaintiff could not perform the essential functions of his position, why did Defendant allow Plaintiff to continue teaching remotely in 2018 and 2019?⁷

This is a fundamental problem with Defendant's argument. Defendant cherry picks a handful of student complaints and offers them as evidence that Plaintiff “needed to be on campus.” [Doc. 39-1 at 16–18]. One could just as easily cherry pick evaluations calling for “[m]ore online videos” and saying Plaintiff was “an effective instructor that was good about communication and helping his students succeed” [Doc. 52-4 at 24, 29]. At best, the evaluations create a muddled issue of fact. When viewing the evidence in the light most favorable to Plaintiff, the positive comments weigh more heavily than the negative ones.⁸ The undisputed fact is that Plaintiff was allowed to teach remotely for several years before anyone voiced concerns that the arrangement prevented him from performing the essential functions of his position.

To be sure, the fact that an employee was granted an accommodation in the past does not, ipso facto, “make an accommodation reasonable.” Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003). But the cases Defendant cites are readily distinguishable. In Wood, the employer granted the plaintiff leave to deal with cluster headaches, but the Eleventh Circuit explained that the employer was not required to give him “indefinite leaves of absence so that he could work at some uncertain point in the future.” Id. Additionally, the leave granted to the employee did not enable him to perform the essential functions of his position but rather resulted in increasing absenteeism. Id. In another case, the employer created a “part-time tutoring position” for the plaintiff but eventually had to eliminate the position “due to budget constraints.” Rabb v. Sch. Bd. of Orange Cnty., Fla., 590 F. App'x 849, 852 (11th Cir. 2014). And in the final case, the employee was provided with an accommodation she never requested, but the accommodation was later taken away because the plaintiff was using it “as an excuse to avoid all communication” with her supervisor. D'Onofrio v. Costco Wholesale Corp., 964 F.3d 1014, 1030–31 (11th Cir. 2020).

Unlike the employee in Wood, in the instant action, Plaintiff's performance ratings improved while teaching remotely, which indicates that the accommodation helped him to perform the essential functions of his position. Unlike the employer in Rabb, Defendant merely modified the way Plaintiff performed his work, it did not create a new position for him. See Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (“The Rehabilitation Act does not require employers to create new positions for employees with disabilities.”). And Plaintiff requested his accommodation and did not use it to avoid talking to his supervisor, unlike the employee in D'Onofrio. See 964 F.3d at 1031 (“An employer has no obligation to make any accommodation unless, and until, the employee specifically requests an accommodation.”). In other words, the accommodations in Wood, Rabb, and D'Onofrio were all demonstrably not reasonable, and thus the employers were not required to provide them. But that does not mean an employer can discontinue an accommodation that is reasonable.

Even accepting Defendant's assertion that GSU professors must attend events and in person meetings, Defendant is not entitled to summary judgment. [Doc. 39-1 at 15]. Defendant itself notes Plaintiff “came to Atlanta [after he began working remotely] to perform required on-campus duties.” [Doc. 39-2 ¶20]. And Plaintiff expressed a willingness to make visits to campus, be available for in-person meetings, attend “music-related activities in the Atlanta area,” and deliver “pre-concert lectures at the Rialto Center.” [Doc. 52-3 at 4]. These facts belie Defendant's repeated assertion that Plaintiff demanded to “work fully remotely from California.” [Doc. 39-1 at 14]; see also [id. at 24] (asserting that Plaintiff was only willing to “work fully remote from California”); [Doc. 57 at 14] (“[Plaintiff] consistently asserted that the only accommodation he was willing to accept was working exclusively from California.”). Plaintiff simply asked to “continue [the existing] arrangement.” [Doc. 40-23 at 3].⁹ As discussed above, there is adequate evidence indicating that Plaintiff could perform the essential functions of his position with such an arrangement, which would make him a qualified individual and his request a reasonable accommodation.

3. Whether Plaintiff thwarted the interactive process

Last, Defendant argues it is entitled to summary judgment because it “engaged in good faith in the interactive process.” [Doc. 39-1 at 23–25]. An employer cannot avoid liability simply by showing it engaged in the interactive process in good faith.¹⁰ Instead, Defendant must show that Plaintiff's “actions cause[d] a breakdown in the interactive process.” Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). For simplicity, the Court will refer to this as the Stewart defense.

Defendant asserts, without citing any evidence, that Plaintiff caused a breakdown in the interactive process through his “insistence on working only remotely from California.” [Doc. 39-1 at 24–25]; see also [Doc. 57 at 14] (asserting Plaintiff caused a breakdown in the interactive process because he “refused to accept anything other than full-time remote work from California”). As discussed above, Defendant's contention is incorrect. Defendant's own evidence shows Plaintiff was willing to attend in-person activities, and he in fact traveled to Atlanta to “perform required on-campus duties.” [Doc. 52-3 at 4]; [Doc. 39-2 ¶20]. In communicating with Defendant about his accommodation request, Plaintiff specifically said “short trips to the [S]outheast are usually not problematic unless there is a lot of rainfall.” [Doc. 40-26 at 1].

As Plaintiff correctly explained to Defendant, putting an air purifier in an office would not address his disability because he has severe reactions to the high levels of mold present throughout Georgia. See [Doc. 40-30 at 2]; see also [Doc. 40-12 at 1]. Defendant responded by saying it only needed to accommodate “atmospheric triggers within its control, i.e., the quality of the air in [Plaintiff's] on-site work environment,” not by offering the plethora of alternative accommodations it now suggests. [Doc. 40-30 at 2–3] (emphasis in original); see also [Doc. 57 at 14–15]. Viewing the evidence in the light most favorable to Plaintiff, Defendant caused the breakdown in the interactive process. For the foregoing reasons, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment be DENIED as to Plaintiff's Rehabilitation Act claim.

II. Plaintiff's Motion for Partial Summary Judgment

Plaintiff moves for summary judgment on his ADA claims and his Rehabilitation Act claim. [Doc. 40 at 1, 12]. As discussed above, Defendant is entitled to summary judgment on Plaintiff's ADA claims because they are barred by sovereign immunity. As for the Rehabilitation Act claim, Plaintiff must show: (1) he has a disability; (2) is otherwise qualified for the position; and (3) was subjected to unlawful discrimination as the result of his disability. Owens, 52 F.4th at 1334. Plaintiff argues he is entitled to judgment as a matter of law as to each element of his claim. [Doc. 40 at 13–23]. In response, Defendant disputes each element, reiterates its Stewart defense, and argues that Plaintiff's requested “accommodation would impose an undue hardship.” [Doc. 50 at 5–22]. The analysis below is divided into: (a) whether Plaintiff is a qualified individual with a disability, (b) whether he was denied a reasonable accommodation, and (c) whether Plaintiff is entitled to judgment as a matter of law on Defendant's affirmative defenses.¹¹

A. Qualified Individual with a Disability

As noted above, an individual is “disabled” within the meaning of the Rehabilitation Act if they are “regarded as” having an impairment that substantially limits one or more major life activities. 42 U.S.C.A. § 12102(1)(C). GSU offered Plaintiff an air purifier because it made an “initial determination that [he has] a disability.” [Doc. 40-30 at 2]. Defendant argues GSU simply “accepted that [Plaintiff] was disabled for purposes of the interactive process.” [Doc. 50 at 7]. But the letter says Defendant made an “initial determination that [Plaintiff has] a disability.” [Doc. 40-30 at 2]. It does not say that Defendant “assumed” Plaintiff had a disability for purposes of the interactive process, as Defendant now contends. At a minimum, the letter indicates that Plaintiff was “regarded as” disabled.

In any event, Plaintiff has a physical impairment that “substantially limits one or more of the major life activities.” 29 C.F.R. § 1630.2(g)(1)(i). Defendant raises a variety of factual disputes about Plaintiff's condition, but these disputes do not create an issue of material fact because those facts are not “critical.” See Anderson, 477 U.S. at 248. Plaintiff has a physical impairment that affects his ability to speak—a major life activity. 29 C.F.R. § 1630.2(i)(1)(i). Defendant's contention that Plaintiff's condition does not impact other major life activities is irrelevant because an impairment “need not substantially limit other major life activities in order to be considered a substantially limiting impairment.” 29 C.F.R. § 1630.2(j)(1)(viii).

Defendant concedes that—while living in Georgia—Plaintiff lost his voice for seven to ten days at a time, four to six times per year. See [Doc. 50 at 5, 8]. Most people in the general population do not lose their ability to speak for a week or more at a time, several times per year. See 29 C.F.R. § 1630.2(j)(1)(v) (“The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.”). The fact that Plaintiff's flare ups are “most likely to occur” in certain months is irrelevant. See [Doc. 50 at 8]; 29 C.F.R. § 1630.2(j)(1)(vii) (providing that an “episodic” impairment “is a disability if it would substantially limit a major life activity when active”). And the fact that Plaintiff has mostly been able to mitigate the effects of his condition by moving to California does not prevent his condition from being a disability. See id. (providing that an impairment “in remission is a disability if it would substantially limit a major life activity when active”); see also id. § 1630.2(j)(1)(vi) (“The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.”).

This last point bears emphasizing because it is essentially Defendant's entire argument. Defendant contends Plaintiff's impairment is not a disability because he can largely “avoid” the effects by moving to another portion of the country. [Doc. 50 at 8]. The amendments to the ADA made it clear that the Court is not to consider “the ameliorative effects of mitigating measures.” 29 C.F.R. § 1630.2(j)(1)(vi). Even if a person can largely “avoid” the symptoms of their impairment by, for example, taking medication, that does not prevent the impairment from being considered a disability. Instead, “[t]he relevant inquiry is whether [the impairment] is substantially limiting when [the person] is not taking medication.” Caporicci v. Chipotle Mexican Grill, Inc., 189 F. Supp. 3d 1314, 1322–23 (M.D. Fla. 2016). Similarly, Plaintiff's impairment does not cease to be a disability simply because he can treat his condition by following the medical advice offered by his doctor. See [Doc. 40-12 at 1].

Plaintiff asks the Court to assess whether he is entitled to judgment as a matter of law for each of the “elements of his claim.” [Doc. 40 at 23 n.10]; see also [Doc. 59 at 8] (arguing that he “is entitled to judgment as a matter of law on [the first] element of his claim[ ]”). For the reasons discussed above, the undersigned RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be GRANTED as to whether he has a “disability” within the meaning of the Rehabilitation Act.

The undersigned also RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be GRANTED as to the second element of his claim—whether he is a “qualified individual” within the meaning of the Rehabilitation Act. An individual is “qualified” if they “can perform the essential functions of [the] position” with or without a reasonable accommodation. 29 C.F.R. § 1630.2(m). Defendant asserts that being in person is an essential function of Plaintiff's position and that working entirely remotely is not a reasonable accommodation. [Doc. 50 at 9–15]. Even accepting those assertions, Plaintiff is still a “qualified individual.”

Plaintiff is capable of being physically present in Georgia—though it will cause him to lose his voice for a week or more at a time, several times per year. But according to Defendant, Plaintiff's “job was never at jeopardy as a result of him losing his voice.” [Doc. 50 at 6]. Plaintiff could have been accommodated by “taking leaves of absences while he lost his voice, having another professor teach his course during these periods, allowing him to show recorded lectures during these absences, or allowing him to leave the state during peak allergy season,” though Defendant never actually offered any of these accommodations. See [Doc. 57 at 14–15]. That is, Defendant concedes that Plaintiff can perform the essential functions of his job if provided with accommodations Defendant believes are reasonable. Thus, even assuming physical presence is required, and that remote work is not a reasonable accommodation, Plaintiff could still perform the essential functions of his position with a reasonable accommodation, and he is a “qualified individual” within the meaning of the Rehabilitation Act.

B. Reasonable Accommodation

Defendant argues Plaintiff is not entitled to summary judgment as to the third element of his Rehabilitation Act claim because “a jury should determine whether in-person presence is an essential function.” [Doc. 50 at 9]. The undersigned agrees. The Rehabilitation Act “does not require the employer to eliminate an essential function of the plaintiff's job,” so if an accommodation does not enable an employee to perform all the essential functions of his job, it is not reasonable. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1256 (11th Cir. 2007) (quoting D'Angelo, 422 F.3d at 1229). Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that he was denied a reasonable accommodation, as discussed above. But viewing the evidence in the light most favorable to Defendant, as the Court must now do, a reasonable jury could decide that his request to work remotely was not a reasonable accommodation.

Plaintiff himself acknowledged that he needed to attend in person meetings and participate in “music-related activities in the Atlanta area.” [Doc. 52-3 at 4]. While Plaintiff's performance eventually improved to “excellent” in teaching and service, those ratings were for the 2020 calendar year when all professors were forced to teach remotely. [Doc. 40-10 at 9–10]. Unsurprisingly, Plaintiff's performance looked better when compared against professors who had no experience teaching remotely, and his inability to frequently interact in person was less of an issue when nearly everyone was quarantined. Even then, Defendant still expressed concern that Plaintiff did not “respond in a timely manner to all student communications” and did not engage in “recruitment activities for the School of Music.” [Id. at 10].

Additionally, the COVID-19 pandemic demonstrated to GSU “that many of its students [do] not perform well in the online environment.” [Doc. 39-3 ¶14]. The Court must give consideration “to the employer's judgment as to what functions of a job are essential.” D'Angelo, 422 F.3d at 1230. And nothing in the Rehabilitation Act prevents an employer from reevaluating what functions are essential in the light of new evidence. Even if an accommodation might have “been reasonable when implemented,” that does not mean the employer is required to continue offering the accommodation if it becomes apparent the accommodation is unreasonable. D'Onofrio, 964 F.3d at 1031.

Plaintiff asserts that “in-person presence” is not an essential function because it is not “the reason” his position existed, there are not a “limited number of employees available” to be in person, and it is not a “highly specialized” skill. [Doc. 59 at 10] (quoting 29 C.F.R. § 1630.2(n)(2)). But those are simply examples of reasons why a function might be considered essential, they are not exhaustive. 29 C.F.R. § 1630.2(n)(2). Being punctual is not “the reason [a] position exists,” nor is it something only a “limited number of employees” can do, and it is not a “highly specialized function.” See id. But being punctual can still be an essential function. Earl v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000) (concluding that “punctuality [was] an essential function” of an employee's job).

Plaintiff believes Defendant must “affirmatively prove” that his requested accommodation was not reasonable. See [Doc. 59 at 13–14]. That is not so. A party's burden at summary judgment depends on whether that “party will bear the burden of proof at trial.” Celotex, 477 U.S. at 324. “[T]he burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable.” Stewart, 117 F.3d at 1286. Thus, to be entitled to summary judgment, Plaintiff must present evidence so compelling that no reasonable jury could find against him. But Defendant is not required to present evidence “negating [Plaintiff's] claim.” Celotex, 477 U.S. at 323 (emphasis in original). Instead, Defendant merely needs to show that a reasonable jury could find Plaintiff's evidence insufficient.

As discussed above, the student comments regarding Plaintiff's performance are a mixed bag. When viewed in the light most favorable to Plaintiff, they weigh against Defendant. But when viewed in the light most favorable to Defendant, they weigh against Plaintiff. Notably, Plaintiff has the additional difficulty of being required to affirmatively prove his case, which means that even evidence which “only somewhat diminish[es] the volume of evidence” in his favor can be enough to defeat his motion for summary judgment. See [Doc. 59 at 13]. In any event, Plaintiff's argument that his proof is “only somewhat diminish[ed]” incorrectly discounts the evidence in Defendant's favor.

Defendant is not merely asserting that “that the other faculty members it has approved for remote work do not have the exact same job responsibilities as [him] and exact same accommodation as [he] requested.” See [id.]. Rather, Defendant has shown that no one who is a tenured or tenure-track professor has been approved to work remotely from another state—besides Plaintiff, of course. The professor who was allowed to teach remotely still lives in Georgia and “is required to attend any in-person meetings.” [Doc. 49 ¶12]; [Doc. 59-1 ¶12]. And the other individual approved for remote work was a lecturer, not an associate professor. [Doc. 49-18]. Contrary to Plaintiff's suggestion, he was not “a lecturer.” See [Doc. 40 at 19]. Plaintiff was an associate professor and as such was expected to, inter alia, participate in recruiting activities and be involved in campus and community activities. [Doc. 39-3 ¶18].

Plaintiff would have the Court ignore the affidavit of the Interim Dean for the College of Arts as expressing mere “personal expectations.” See [Doc. 59 at 14]. But the Court cannot lightly set aside the expressed opinions of the employer. An employer's judgment is not “conclusive[,]” and as discussed above this evidence does not entitle Defendant to summary judgment. See D'Angelo, 422 F.3d at 1233. But the Court must now view the evidence in the light most favorable to Defendant, and “the employer's view is entitled to substantial weight” in deciding if a function is essential. Id. For the reasons discussed above, when viewing the evidence in the light most favorable to Defendant, a reasonable jury could conclude that in-person presence was an essential function of Plaintiff's position, and that Plaintiff's request for remote work would not enable him to perform that function. As such, Plaintiff's requested accommodation would not be reasonable within the meaning of the Rehabilitation Act. The undersigned RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be DENIED as to the third element of his Rehabilitation Act claim.

C. Defendant's Affirmative Defenses

Last, Defendant raises two affirmative defenses. First, Defendant reasserts the Stewart defense discussed above, contending that Plaintiff caused a breakdown in the interactive process. [Doc. 50 at 19–21]. Second, Defendant asserts that Plaintiff's proposed accommodation caused an undue hardship. [Id. at 21–22]. The undersigned addresses each argument in turn.

1. The Stewart Defense

Defendant's Stewart defense fails as a matter of law because Defendant did not offer a reasonable accommodation “based on the information it possesse[d]” and because no reasonable jury could find that Plaintiff's “actions cause[d] a breakdown in the interactive process.” See 117 F.3d at 1287.

Defendant assumes that its offer of “an air purifier” was a “reasonable accommodation” without ever explaining how it would have enabled Plaintiff to perform the essential functions of his position. [Doc. 50 at 20]. Plaintiff informed Defendant that his impairment was “not related to conditions within any specific building on campus,” but was instead caused by the “amount of mold in the atmosphere.” [Doc. 40-26]. Thus, Defendant should have known that “an air purifier [in Plaintiff's] office” would do essentially nothing to alleviate his issues. See [Doc. 40-29 at 2]. That is, “based on the information it posesse[d]” at the time, Defendant should have known its proffered accommodation was not reasonable. Defendant now suggests various accommodations “that may have allowed [Plaintiff] to work in person” such as “taking leaves of absences while he lost his voice, having another professor teach his course during these periods, allowing him to show recorded lectures during these absences, or allowing him to leave the state during peak allergy season.” [Doc. 57 at 14–15]. But Defendant did not offer any of those possible accommodations during the interactive process.

Defendant cites no evidence in support of its argument that Plaintiff “was adamant that the only accommodation he was willing to accept was to work fully remote from California.” [Doc. 50 at 20–21]. While Defendant does not need to affirmatively disprove the elements of Plaintiff's claim, it must offer evidence in support of its affirmative defense, which it does not do. As discussed above, Plaintiff simply asked to “continue [the existing] arrangement.” [Doc. 40-23 at 3]. While teaching remotely, Plaintiff still “came to Atlanta ․ to perform required on-campus duties.” [Doc. 39-2 ¶20]. And Plaintiff was willing to make visits to campus, be available for in-person meetings, attend “music-related activities in the Atlanta area,” and deliver “pre-concert lectures at the Rialto Center.” [Doc. 52-3 at 4]. During the interactive process, Plaintiff specifically stated that “short trips to the [S]outheast are usually not problematic unless there is a lot of rainfall.” [Doc. 40-26 at 1]. Plaintiff explained to Defendant why an air purifier would not be a reasonable accommodation and provided medical evidence. See [Doc. 40-30 at 2]; see also [Doc. 40-12 at 1]. Defendant responded by insisting it only needed to accommodate “atmospheric triggers within its control, i.e., the quality of the air in [Plaintiff's] on-site work environment,” and did not propose any alternative accommodations. [Doc. 40-30 at 2–3] (emphasis in original). No reasonable jury could find Plaintiff caused the breakdown in the interactive process.

Defendant's arguments show a fundamental misunderstanding of how disability accommodations work. Defendant suggests that if remote work can be a reasonable accommodation, then “tenured professors are not required to ever be on campus.” [Doc. 50 at 19]. That is unwarranted hyperbole. If the upper levels of a building can only be accessed via stairs, an employee who is wheelchair bound will need accommodation. If the employee can perform their duties from an office on the first floor, then walking up the stairs is not an essential function. Contrary to Defendant's suggestion, the fact that other employees “would like to avoid” walking up the stairs is not part of the equation. See [id.]. Unless those employees have a disability that prevents them from walking up the stairs, the employer is not required to “accommodate” them with a first-floor office. Even accepting that Defendant needs some professors to be on campus some of the time, that does not mean being on campus is an essential function. Non-disabled employees can be required to perform the marginal functions of the position.

Even if being on campus some of the time is an essential function, Defendant now acknowledges that it could have accommodated Plaintiff by providing “leaves of absences while he lost his voice, having another professor teach his course during these periods, allowing him to show recorded lectures during these absences, or allowing him to leave the state during peak allergy season.” [Doc. 57 at 14–15]. As discussed above, the undersigned is not holding that remote work is necessarily a reasonable accommodation. There are disputed issues of fact for a jury to decide. And even if it might have been an otherwise reasonable accommodation, an employer is not required to accommodate an employee in any manner the employee desires. Stewart, 117 F.3d at 1285. Defendant could have offered Plaintiff the various other accommodations it now suggests during the interactive process. If Plaintiff had rejected “the proffered accommodations” without any substantive explanation for why they “were unreasonable given [his] medical needs,” Defendant would be entitled to a Stewart defense. 117 F.3d at 1286–87. But that did not happen. The only accommodation Defendant offered was an air purifier in Plaintiff's office, and Plaintiff provided a substantive explanation—backed by medical evidence—for why that accommodation on its own would not suffice. Defendant rejected Plaintiff's appeal without offering any other possible accommodation. The undersigned RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be GRANTED as to Defendant's Stewart defense.

2. Undue Hardship

Finally, Plaintiff argues he is entitled to summary judgment as to any undue-hardship defense. [Doc. 40 at 20–23]; [Doc. 59 at 2–3]. An employer is not required to offer an accommodation—even an otherwise reasonable accommodation—if doing so would impose an undue hardship. EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333, 1349 (11th Cir. 2016). Undue hardship “means an action requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A). In deciding if an accommodation would impose an undue hardship, the Court must consider factors such as the nature and cost of the accommodation, the employer's financial resources and number of employees, the type of operations of the employer, and the overall “impact” the accommodation would have on expenses, resources, and operations. Id. § 12111(10)(B).

Quoting from Davis v. Columbus Consol. Gov't, 826 F. App'x 890 (11th Cir. 2020), Plaintiff suggests that only an accommodation that involves a “hypothetical change” can impose an undue hardship. [Doc. 40 at 20–21]. But the quote Plaintiff uses is incomplete, and the full context shows that Plaintiff misreads the holding. The Davis Court held that when an accommodation involves a “hypothetical change,” the employer must rely on “a projection of the potential costs and other impacts” and could not provide “the level of precision that Davis advocate[d].” 826 F. App'x at 894. The Davis Court did not hold that only an accommodation involving a “hypothetical change” can cause an undue hardship.

Plaintiff also contends that allowing him to teach remotely would have been less burdensome because he did not need office space and because the arrangement provided him with “more flexibility in his availability and capacity to teach.” [Doc. 40 at 21]. But there is nothing to suggest that GSU had a lack of office space. And while the remote arrangement offered Plaintiff more flexibility, it severely restricted the selection of classes Plaintiff could teach. Only 1.3% of the classes offered by the School of Music are taught online only. [Doc. 39-2 ¶21]. Additionally, in deciding if Plaintiff's accommodation caused an undue hardship, the Court must consider the impact it had on the operation of GSU's business, which is teaching students. See 42 U.S.C. § 12111(B)(ii). During the COVID-19 pandemic, “GSU developed significant evidence that some of its students struggled in online modalities and did not achieve good academic outcomes.” [Doc. 39-2 ¶41]. All the classes Plaintiff previously taught online are now offered in person. [Id. ¶59]. While Plaintiff was able to attend “faculty meetings and things like that” when they were “occasionally” held online ([Doc. 41 at 38:7–13]), most of these faculty and committee meetings are conducted in person. [Doc. 39-2 ¶27].¹²

Plaintiff's assertion that Defendant “has still not even begun to prove [an undue hardship] defense” is not accurate. See [Doc. 59 at 3]. To be sure, Defendant's argument needs to be fleshed out, but the skeletal structure is in place. Defendant has raised a genuine issue of material fact as to whether it could prove an undue hardship defense at trial. The undersigned RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be DENIED as to Defendant's undue hardship defense.

CONCLUSION

For the reasons above, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment ([Doc. 39]) be GRANTED in part and DENIED in part and that Plaintiff's Motion for Partial Summary Judgment ([Doc. 40]) be GRANTED in part and DENIED in part. Specifically, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED to the extent it seeks dismissal of Counts I, II, and IV without prejudice and that it be DENIED in all other respects. The undersigned further RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment be GRANTED to the extent he seeks summary judgment as to the first two elements of Count III and as to Defendant's Stewart defense and that it be DENIED in all other respects. As this is a final Report and Recommendation and there are no other matters pending before this Court, the Clerk is directed to terminate the reference to the undersigned.

SO REPORTED AND RECOMMENDED, this 20 day of May, 2024.

FOOTNOTES

1.   The Court uses the Parties' proposed facts and responses as follows: where one side admits a proposed fact, the Court accepts it as undisputed for purposes of this order and cites only the proposed fact. Where one side admits a proposed fact in part, the Court cites to the proposed fact and includes the undisputed part. Where one side denies a proposed fact in whole or in part, and such fact is material, the Court reviews the record and determines whether a factual dispute exists. If the denial is without merit, either because the proposed fact has been deemed admitted or the record citation supports the proposed fact, then the Court cites only to the proposed fact and not the response. Finally, the Court excludes proposed facts that are immaterial, includes facts drawn from its review of the record, and considers all proposed facts in light of the standard for summary judgment. See LR 56.1(B)(2)(a)(2)(iii), NDGa.; see also FED. R. CIV. P. 56(c)(3).

2.   As a result of Plaintiff's accommodation being denied, Defendant asserts that Plaintiff “chose to resign rather than return to campus.” [Doc. 66 at 3]; see Def.'s SOMF ¶ 64. Plaintiff disputes this assertion and claims that he never resigned. Plaintiff's Response to Defendant's Statement of Material Facts ¶ 64 [Doc. 52-1].

3.   Plaintiff also filed a reply to Defendant's response to his objections. [See Doc. 69].

4.   Although the Eleventh Circuit was addressing an ADA claim instead of a Rehabilitation Act claim in Holly, “[d]iscrimination claims under the Rehabilitation Act are governed by the same standards used in ADA cases” and “[c]ases decided under the Rehabilitation Act are precedent for cases under the ADA, and vice-versa.” Cash v. Smith, 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000).

5.   “ ‘Substantially limits’ is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i).

6.   Separately, Defendant argues that it was error for the Magistrate Judge to find that Defendant was required to provide Plaintiff with an accommodation if it merely “regarded” him as disabled. [Doc. 66 at 4–5]. In the portion of the R&R Defendant is referencing, the Magistrate Judge was relying on statutory language defining the term “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual,” “(B) a record of such an impairment,” or “(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); see R&R at 11–12, 26–27. The Magistrate Judge also referenced the Eleventh Circuit's decision in D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005), stating that “an individual falling within the ‘regarded as’ category of disability under the ADA is entitled to a reasonable accommodation no less than an individual satisfying the actual-impairment definition of disability.” Id. at 1239; R&R at 12. In its objections, Defendant points to statutory and regulatory language that appears to have been enacted after the Eleventh Circuit's decision in D'Angelo, which clarifies that employers are not required to provide a reasonable accommodation to employees who meet the definition of disabled solely under the “regarded as” prong. [See Doc. 66 at 4–5]; 42 U.S.C. § 12201(h) (“A covered entity under subchapter I, a public entity under subchapter II, and any person who owns, leases (or leases to), or operates a place of public accommodation under subchapter III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 12102(1) of this title solely under subparagraph (C) of such section.”); 29 C.F.R. § 1630.9(e) (“A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the ‘actual disability’ prong (§ 1630.2(g)(1)(i)), or ‘record of’ prong (§ 1630.2(g)(1)(ii)), but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the ‘regarded as’ prong (§ 1630.2(g)(1)(iii)).”). Plaintiff did not respond to this component of Defendant's objections, [see generally Doc. 68], and Defendant's interpretation appears to be correct. However, the Magistrate Judge's error in setting forth the legal standard for establishing that Plaintiff has a disability pursuant to the Rehabilitation Act has no bearing on the Magistrate Judge's independent determination that Plaintiff is actually disabled as a matter of law, or the undersigned's instant analysis.

7.   Defendant's objections are sustained only with respect to the component of the R&R in which the Magistrate Judge found that Defendant was required to accommodate Plaintiff insofar as he was merely “regarded” as disabled. In all other respects, Defendant's objections are overruled.

8.   The dismissal of Plaintiff's ADA and breach of contract claims is without prejudice because it is based on Eleventh Amendment sovereign immunity, which is jurisdictional in nature. See Dupree v. Owens, 92 F.4th 999, 1008 (11th Cir. 2024) (“Because the dismissals were based on sovereign immunity grounds, the jurisdictional nature of the dismissal requires it to be entered without prejudice.”).

1.   Defendant is the Board of Regents of the University System of Georgia, which oversees GSU. [Doc. 39-2 ¶1]. For simplicity, the undersigned will use “Defendant” and “GSU” interchangeably.

2.   The Rehabilitation Act incorporates “the standards applied under title I of the Americans with Disabilities Act of 1990.” 29 U.S.C. § 794(d); see also Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (noting that “cases involving the ADA are precedent for those involving the Rehabilitation Act”).

3.   In two of the cases, the plaintiffs claimed to have allergies to unspecified substances present only at their workplace, and they had no medical evidence that the alleged allergies affected any major life activity. Thomas v. Comcast Cable Commc'ns Mgmt., LLC, No. 1:19-CV-01953-CMS, 2020 WL 13850733, at *11 (N.D. Ga. Nov. 24, 2020); Svoboda v. TimkenSteel Corp., No. 5:18CV01443, 2020 WL 1513710, at *8 (N.D. Ohio Mar. 30, 2020). In the third case, the court held that the plaintiff did not present “sufficient evidence, backed by medical support,” showing that her condition caused a “substantial” limitation. Whitesell v. FMS Fin. Mgmt. Servs., LLC, No. 3:18-CV-00496, 2020 WL 2770017, at *9 (M.D. Tenn. May 28, 2020). The only medical evidence the plaintiff presented was a doctor's note saying her “impairment substantially limits one or more major life activities” without identifying any major life activity and without explaining how the “impairment ‘substantially limits’ an activity.” Id. at *5.

4.   The case cited by Defendant is not to the contrary. In that case, the court held the employer was “not legally obligated to reassign existing employees to new duties in order to accommodate” the plaintiff. Turner v. Bd. of Supervisors of the Univ. of La. Sys., 644 F. Supp. 3d 221, 231 (E.D. La. 2022). Here, Defendant did not need to reassign other professors to grant Plaintiff's 2021 accommodation request—Plaintiff had been teaching online courses since 2017.

5.   As noted above, GSU requires an associate professor to be “rated as at least Excellent in both Research and Teaching and at least Very Good in Service” to “meet expectations.” [Doc. 39-2 ¶31]. If a professor does not “meet expectations,” they are placed on a performance improvement plan ([id. ¶32]), but these plans are not punitive in nature. See [Doc. 58 ¶2].

6.   Defendant contends that these “excellent” ratings should be discounted because they were for the calendar year 2020, when all professors were forced to teach remotely. But at this point, the Court must view the evaluations in the light most favorable to Plaintiff. In assessing Plaintiff's motion below, the Court will view the evaluations in the light most favorable to Defendant.

7.   Notably, “everyone taught remotely from March 2020 to the fall [sic] of 2021.” [Doc. 39-1 at 22].

8.   In assessing Plaintiff's Motion for Partial Summary Judgment, the Court will view the evidence in the light most favorable to Defendant. When doing so, the negative comments will weigh more heavily than the positive ones.

9.   Defendant also asserts that Plaintiff's “request was permanent,” but it cites no evidence in support of that position. [Doc. 39-1 at 20]. As Plaintiff correctly notes, even if an accommodation is permanent—such as the use of a wheelchair—that does not necessarily make it unreasonable. [Doc. 59 at 12 n.8]. Defendant does not explain why a “permanent” accommodation would be unreasonable other than to say that it “exacerbated” issues in some unspecified way. [Doc. 39-1 at 20].

10.   Defendant seems to suggest it only needs to show it made a “good faith” offer of an accommodation. See [Doc. 57 at 14]. The authority Defendant cites holds that an employer must also show the employee “caused [a] breakdown in the interactive process.” Waldrop v. Gwinnett Cnty. Sch. Dist., No. 1:22-CV-2563-SDG-JKL, 2023 WL 9688352, at *9 (N.D. Ga. May 24, 2023), report and recommendation adopted, 2024 WL 1333041 (N.D. Ga. Mar. 27, 2024). An employer may be able to avoid damages under 42 U.S.C.A. § 1981a(a)(3) by making a good faith offer of a reasonable accommodation, but not liability. Defendant does not appear to be asserting a defense under § 1981a(a)(3). See [Doc. 39-1 at 23–25]; [Doc. 57 at 13–15]; see also [Doc. 50 at 19–21].

11.   Undue hardship is unquestionably “an affirmative defense to be pled and proven by an ADA defendant.” Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997). The undersigned has not found any authority holding that Stewart is an affirmative defense, but it appears to be one. An “affirmative defense raises matters extraneous to the plaintiff's prima facie case” to avoid liability. In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) (quoting Ford Motor Co. v. Transport Indemnity Co., 795 F.2d 538, 546 (6th Cir.1986)). The Stewart defense requires the employer to show: (1) it did not obstruct the interactive process, (2) it made reasonable efforts to communicate with the employee and provide accommodations based on the information it possessed, and (3) the employee's actions caused a breakdown in the interactive process. 117 F.3d at 1287. Because a Stewart defense requires an employer to affirmatively prove matters that are extraneous to the elements of a Rehabilitation Act claim—see Owens, 52 F.4th at 1334—it is an affirmative defense.

12.   Plaintiff does not properly dispute this fact. [Doc. 52-1 ¶27]. Plaintiff does not refute the fact with “specific citations to evidence.” See N.D. Ga. Loc. R. 56.1(B)(2)(a)(2)(i). Nor does Plaintiff state an objection to the admissibility of the fact. See id. 56.1(B)(2)(a)(2)(ii). Instead, Plaintiff seems to be asserting that Defendant's evidence “does not support” the fact. See id. 56.1(B)(2)(a)(2)(iii). But the evidence cited says “most faculty and committee meetings are conducted in-person.” [Doc. 39-3 ¶19]. Plaintiff's contention that Defendant must provide “quantitative evidence” in support of the affidavit has no basis in law. Affidavits are evidence that can be “used to support or oppose a motion” for summary judgment. Fed. R. Civ. P. 56(c)(4).

LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE