UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NORTH CAROLINA
`WESTERN DIVISION
`No. 5:11-CV-627-BR
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`) ) ) ) ) ) )
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`) ) )
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`JOSEPH GILREATH,
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`Plaintiff,
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`V.
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`CUMBERLAND COUNTY BOARD OF
`EDUCATION,
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`This matter is before the court on the 13 March 2014 motion for summary judgment filed
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`by defendant Cumberland County Board of Education (“the Board”). (DE # 47.) Also before
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`the court is the Board’s 17 April 2014 motion to strike. (DE # 55.) The period to respond and
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`reply to the motions has elapsed, and the matters are now ripe for disposition.
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`I. BACKGROUND‘
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`Plaintiff Joseph Gilreath (“plaintiff”) began his employment with the Board in 1993 as a
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`band director and music teacher at Anne Chesnutt Middle School in Fayetteville, North Carolina.
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`(T. Hatch Aff., DE # 47-2, 1] 2; Pl.’s Aff., DE # 53-21, 1] 2.) Plaintiffs responsibilities in that
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`position included, but were not limited to, teaching assigned band and music classes, maintaining
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`a safe and orderly environment, maintaining order and discipline in the classroom, planning and
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`implementing instruction, performing various non-instructional duties, reporting grades and
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`other information to the school’s principal, reporting student progress and other concerns
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`regularly to parents, planning and executing band concerts, and supervising students at various
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`1 Throughout this opinion, the court presents the facts, supported by the record, in the light most favorable
`to plaintiff, the non-moving party.
`_S__e§ Anderson v. Liberty Lobby, lnc., 477 U.S. 242, 255 (1986).
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`339
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`§§§
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`band-related events. (Pl.’s Aff., DE # 53-21, 1] 3.)
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`Plaintiff suffers from Attention Deficit Hyperactivity Disorder-lnattentive (“ADHD”).
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`condition affects his short-term memory, as well as his ability to manage multiple tasks and
`activities at the same time.
`(I_d_.) Plaintiffalso suffers from hypertension and was advised by
`doctors to avoid unnecessary stress. (Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 3, DE # 53-3, at 3;
`Pl.’s Aff., DE # 53-21, 11 4.)2
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`In September 2008, Thomas Hatch (“Hatch”), the principal ofAnne Chesnutt Middle
`School, met with plaintiff.
`(T. Hatch Aff., DE # 47-2, 1] 9.) At that meeting, plaintifftold Hatch
`that he had been dealing with some medical issues, and he provided Hatch with a letter from a
`psychotherapist dated 17 December 2002 that mentioned that he had been diagnosed with
`ADHD.
`(I_d_. & Ex. 5; s_e_e a_1l_sg Pl.’s Aff., DE # 53-21, 1] 5 (“In the fall of2008, I requested
`various accommodations under the Americans with Disabilities Act .
`.
`. .”).) Hatch told plaintiff
`that he would need more recent documentation regarding plaintiffs medical issues in order to
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`would prevent him from fulfilling non-instructional duties and communicating within the
`educational environment.
`(I_d_. & Ex. 4; see also Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 4, DE #
`4.) On 30 January 2009, Hatch reiterated to plaintiffthat he should provide medical
`documentation ifthere were conditions that affected his ability to perform his duties.
`(T. Hatch
`Aff., DE # 47-2, W 12-14.)
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`____j___________.
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`2 Page citations are to the numbers generated by CM/ECF.
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`2
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`On 3 February 2009, plaintiffprovided Hatch with documentation from his physician, Dr.
`Robert Ferguson, and he also requested various accommodations under the Americans with
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`Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. (1; 111] 15-16 & Exs. 7-8; Pl.’s
`Mem. Opp’n Mot. Summ. J., Ex. 3, DE # 53-3.) For example, plaintiff requested that he be
`allowed to conduct non-emergency communications with parents and guardians in writing or by
`email instead of by telephone or personal contact.
`(Ld_.) Among other things, he also requested
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`(Lei) Plaintiff maintains that the requested accommodations were not granted in a
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`timely manner. (Pl.’s Aff., DE # 53-21, 1] 10.)
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`On 4 February 2009, plaintiffwas placed on a corrective action plan, allegedly in light of
`concerns about his teaching performance.
`(T. Hatch Aff., DE # 47-2, 11 18 & Ex. 11; Pl.’s Mem.
`Opp’n Mot. Summ. J., Ex. 9, DE # 53-8.) In March 2010, he was placed on a similar action plan
`by Assistant Principal Michael Bain (“Bain”) after having been given a negative performance
`evaluation that was dated 26 February 2010. (T. Hatch Aff., DE # 47-2, 1111 20, 24 & Exs. 13-14;
`Pl.’s Mem. Opp’n Mot. Summ. J., Exs. 10, 17, DE ## 53-9, 53-16.) On 10 June 2010, plaintiff
`received a performance evaluation and was given two ratings of “Below Standard.” (Def.’s Mot.
`Summ. J., Ex. 7c, DE # 47-10; Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 21, DE # 53-20.) In
`August 2010, he was asked to start reporting to work early by Bain and the school’s new
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`principal, Tonjai Robertson. (Def.’s Mot. Summ. J., Ex. 7a, DE # 47-8; Pl.’s Mem. Opp’n Mot.
`Summ. J., Ex. 20, DE # 53-19, at 13.) On 9 September 2010, plaintiffreceived a letter from
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`Bain stating in part that “there [were] still serious deficiencies to be addressed” with regard to
`plaintiffs performance. (Def.’s Mot. Summ. J., Ex. 7b, DE # 47-9.)
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`Plaintiff filed separate charges with the Equal Employment Opportunity Commission
`(“EEOC”) on 14 April 2010 and 4 October 2010.3 (Def.’s Mot. Summ. J., Exs. 8, 10, DE ## 47-
`11, 47-13; Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 21, DE # 53-20.) Plaintiffcommenced this
`action in North Carolina state court on 30 September 2011. (DE # 1-1.) On 3 November 201 1,
`the Board removed plaintiffs lawsuit to this district. (DE # 1.) Plaintiff subsequently filed an
`amended complaint on 26 April 2012. (DE # 17.) Plaintiff raises two claims in the amended
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`under the ADA were violated. (IQ) He also asserts that the Board retaliated against him in
`violation of the ADA. (IQ)
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`On 13 March 2014, the Board filed a motion for summary judgment. (DE # 47.)
`Plaintiffresponded to the motion on 3 April 2014 (DE # 51), and the Board filed a reply on 17
`April 2014 (DE # 54). Also on 17 April 2014, the Board filed a motion to strike. (DE # 55.)
`Plaintiffresponded to the motion on 8 May 2014 (DE # 59), and the Board submitted a reply on
`22 May 2014 (DE # 60).
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`A.
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`Motion to Strike
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`II. DISCUSSION
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`As mentioned above, the Board filed a motion to strike on 17 April 2014. (DE # 55.) In
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`motion for summary judgment.
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`(§e_e DE # 53.) The audio file purportedly contains a recording
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`of a meeting that occurred between plaintiff and Superintendent Franklin L. Till, Jr. on 15
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`September 2010, wherein plaintiff allegedly made a request for disability accommodations.
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`(_Se_e
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`Def.’s Mem. Supp. Mot. Strike, DE # 56, at 3; Pl.’s Aff., DE # 59-1, 1111 2-3.) The Board
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`contends that plaintiff did not disclose the audio recording during discovery even though the
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`Board had requested copies of any recordings related to plaintiffs allegations as a part of its
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`written discovery requests.
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`(S_e_§ Def.’s Mem. Supp. Mot. Strike, DE # 56, at 5.) As a result, the
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`Board argues that plaintiff may not rely on the recording in opposing the motion for summary
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`judgment and that the recording should be stricken from the record.
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`Rule 37 of the Federal Rules of Civil Procedure states: “If a party fails to provide
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`information or identify a witness as required .
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`.
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`.
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`, the party is not allowed to use that information
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`or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
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`substantially justified or is harmless.” Fed. R. Civ. P. 37(c)( 1). The court has “broad discretion”
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`in determining whether a nondisclosure of evidence is substantially justified or harmless. LIn_it§:g
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`States v. $134,750 U.S. Currency, 535 F. App’x 232, 238 (4th Cir. 2013) (unpublished) (citation
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`and internal quotation marks omitted). A trial court determines whether a party’s failure to
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`disclose evidence is substantially justified or harmless by considering
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`(1) the surprise to the party against whom the evidence would be offered; (2) the
`ability of that party to cure the surprise; (3) the extent to which allowing the
`evidence would disrupt the trial; (4) the importance of the evidence; and (5) the
`nondisclosing party’s explanation for its failure to disclose the evidence.
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`S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
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`The burden rests on the party facing sanctions to show that his nondisclosure was harmless or
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`substantiallyjustified.
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`I_d_. at 596.
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`.5S
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`3§§lg93
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`(Pl.’s Aff., DE # 59-1, fl 4.) However, plaintiff has failed to demonstrate his diligence in
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`searching for the recording, and he offers no specific explanation for his failure to produce it.
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`Although he states that he made a “good faith effort” to comply with the Board’s discovery
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`requests and that he provided “several hundred documents” to the Board as part of that good
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`faith attempt, the court concludes that these assertions are insufficient to demonstrate that the
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`failure to produce was substantially justified.“ (Pl.’s Mem. Opp’n Mot. Strike, DE # 59, at 5.)
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`As a result, the audio recording will be stricken from the record. §e_e Fed. R. Civ. P. 12(f)
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`(providing that the court “may strike from a pleading an insufficient defense or any redundant,
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`immaterial, impertinent, or scandalous matter”).
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`The Board has also moved to strike any reference that is made in plaintiffs summary
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`judgement response and the accompanying exhibits to plaintiffs “suspension, termination, or
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`any other event not alleged in the complaint, amended complaint, or in the EEOC charge upon
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`which the action is based.” (Def.’s Mot. Strike, DE # 55, at 1.) In his summary judgment
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` _j___:__:_
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`4 The court notes that although plaintiff is currently represented by counsel, he was proceedingpro se at the
`time that he responded to the Board’s discovery requests. (SE Pl.’s Mem. Opp’n Mot. Strike, DE # 59, at 2.)
`However, plaintiffs pro se status, in and of itself, is not enough to support a finding that the failure to produce the
`audio recording was substantially justified. Moreover, as the Board has pointed out, “plaintiff offers no explanation
`for why the purported audio recording was not provided in a supplemental discovery response after plaintiffs
`current counsel began his representation while the discovery period was still open.” (Def.’s Reply Supp. Mot.
`Summ. 1., DE # 60, at 2.)
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`response and the exhibits thereto, plaintiff has referred to various acts that occurred after he filed
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`this lawsuit. For example, he asserts that the Board suspended his employment in July 2012 and
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`then terminated him in November 2012.5 (§e_e Pl.’s Mem. Opp’n Mot. Summ. J., DE # 51, at 1,
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`7, 13, 19.) These events fall well outside of the resolution of the relevant EEOC charge, which
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`occurred on 30 June 2011. (Def.’s Mot. Summ. J., Ex. 11, DE # 47-14.) Moreover, none ofthe
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`acts at issue in the motion to strike are referred to in the amended complaint, which was filed on
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`26 April 2012. (DE # 17.) The Board argues that plaintiff cannot now amend his complaint
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`through the use of motion briefing, and that, as a result, the court may not consider the events in
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`question in ruling on the pending motion for summary judgment. §e_e Hexion Specialty Chems.,
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`Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D, 2011 WL 4527382, at *7 (E.D.N.C. Sept. 28,
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`2011) (“[A] party may not use its briefs in support of or opposition to summary judgment to
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`amend a complaint.” (collecting cases)).
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`Although plaintiff agrees that he “cannot amend his complaint via summary judgment
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`briefing” (Pl.’s Mem. Opp’n Mot. Strike, DE # 59, at 6), he nevertheless contends that all of the
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`acts in question should be considered based on the “continuing violation” theory, which “allows
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`for consideration of incidents that occurred outside the time bar when those incidents are part of
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`a single, ongoing pattern of discrimination .
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`.
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`. .” Holland v. Wash. Homes, Inc., 487 F.3d 208,
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`219 (4th Cir. 2007) (citing Nat’l R.R. Passen er Cor . V. Mor an, 536 U.S. 101, 118 (2002)).
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`Such a theory only applies, however, when an employee asserts a hostile work environment
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`claim. fig jg at 219-20; Szedlock v. Tenet, 61 F. App’x 88, 93 (4th Cir. 2003) (per curiam)
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`(unpublished) (“The Supreme Court’s ruling in [Morgan] .
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`.
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`. makes clear that unless the plaintiff
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`alleges a hostile work environment [claim] .
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`.
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`.
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`, each instance of discrimination is a discrete
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`act.”).
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`Plaintiff cites no authority discussing the continuing violation theory in the context of a
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`failure to accommodate under the ADA. Courts that have analyzed the doctrine in connection
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`with failure to accommodate claims have concluded that the doctrine does not apply. _S_@
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`Teague v. Nw. Mem’l Hosp, 492 F. App’x 680, 684 (7th Cir. 2012); Tobin v. Liberty Mut. Ins.
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`Cg, 553 F.3d 121, 130-31 (1st Cir. 2009); Mayers v. Laborers’ Health & Safety Fund ofN. Am.,
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`478 F.3d 364, 368 (D.C. Cir. 2007); Marshall v. Donahoe, Civil Action No. DKC 12-0431, 2013
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`WL 597596, at *4 (D. Md. Feb. 15, 2013). Furthermore, the continuing violation doctrine is not
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`applicable to claims of retaliation because such claims are based on discrete acts. Morgan, 536
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`U.S. at 110-14; gt; 2_1l_sQ Huggins v. N.C. Dep’t ofAdmin., No. 5:10-CV-414-FL, 2013 WL
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`5201033, at *23-24 (E.D.N.C. Sept. 13, 2013), affd, 554 F. App’x 219 (4th Cir. 2014) (per
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`curiam) (unpublished). As a result, the continuing violation doctrine does not apply to this case.
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`Additionally, although the court recognizes that discriminatory acts that were committed
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`“prior” to the filing of an EEOC charge may be used “as background evidence in support of a
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`timely claim[,]” Morgan, 536 U.S. at 113, all of the acts that are at issue in the motion to strike
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`occurred after the filing and resolution of the second EEOC charge. The court also agrees with
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`the Board that plaintiff has not merely presented these subsequent events as “background
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`evidence.” Rather, he is affirmatively trying to use the events as substantive evidence in support
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`of his claims. For example, with respect to his ADA retaliation claim, plaintiff emphasizes that
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`;
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`the termination of his employment in 2012 is “very clearly an adverse employment action .
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`.
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`. .”
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`(Pl.’s Mem. Opp’n Mot. Summ. J., DE # 51, at 14.) However, the court may not consider
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`plaintiffs termination or the other acts at issue in the motion to strike in ruling on his ADA
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`retaliation claim because they are unrelated to the scope ofthe allegations contained in his
`second EEOC charge, whose allegations are discussed further below. See Chacko v. Patuxent
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`h1;t_., 429 F.3d 505, 506 (4th Cir. 2005) (a claim reasonably related to the EEOC charge is
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`allowed so long as it does not “reference different time frames, actors, and discriminatory
`conduct”); Evans v. Techs. A lications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (“Only
`those discrimination claims stated in the initial charge, those reasonably related to the original
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`complaint, and those developed by reasonable investigation of the original complaint may be
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`maintained in a subsequent .
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`.
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`. lawsuit”).
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`Based on the foregoing, the court finds that plaintiff has improperly asserted new
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`allegations in his memorandum in opposition to the motion for summary judgment and the
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`exhibits thereto. However, the court will not strike the newly asserted allegations as a group. It
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`is unnecessary and would be a waste of time for the court to strike each and every one ofthe
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`facts to which the Board objects. Instead, the court will simply not consider these facts in ruling
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`on the Board’s motion for summary judgment. Thus, the motion to strike will be denied with
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`regard to this issue.
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`B.
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`Motion for Summary Judgment
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`1. Standard of review
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`Summary judgment is proper only if “the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). Summary judgment should be granted only in those cases “in which it is perfectly clear
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`that no genuine issue of material fact remains unresolved and inquiry into the facts is
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`unnecessary to clarify the application of the law.” Haavistola v. Cmty. Fire Co. of Rising Sun,
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`Ln_c;, 6 F.3d 211, 214 (4th Cir. 1993). “[T]he substantive law will identify which facts are
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`material. Only disputes over facts that might affect the outcome of the suit under the governing
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`law will properly preclude the entry of summary judgment.” Anderson v. Libegty Lobby, Inc.,
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`477 U.S. 242, 248 (1986).
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`In considering a motion for summaryjudgment, the court is required to draw all
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`reasonable inferences in favor of the non-moving party and to view the facts in the light most
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`favorable to the non-moving party. Anderson, 477 U.S. at 255. The moving party has the
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`burden to show an absence of evidence to support the non-moving party’s case. Celotex Corp. v.
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`g?gt_re_tt, 477 U.S. 317, 325 (1986). The party opposing summaryjudgment must then
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`demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials.
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`Anderson, 477 U.S. at 248. A mere scintilla of evidence supporting the case is insufficient.
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`I_cL
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`at 252. “[W]here the record taken as a whole could not lead a rational trier of fact to find for the
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`non-moving party, disposition by summary judgment is appropriate.” Teamsters Joint Council
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`No. 83 v. Centra Inc., 947 F.2d 115, 119 (4th Cir. 1991).
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`2. Failure to accommodate claim
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`The Board first argues that plaintiffs failure to accommodate claim is time-barred. An
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`individual claiming a violation of the ADA must file a charge with the EEOC within 180 days
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`after the alleged unlawful employment practice occurred. §;c_e J.S. ex rel. Duck v. Isle of Wight
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`Cnty. Sch. Bd., 402 F.3d 468, 475 n.l2 (4th Cir. 2005) (citing 42 U.S.C. §§ 2000e-5(e)(1),
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`l2117(a)). If the claimant fails to file a charge in a timely fashion with the EEOC, “the claim is
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`time-barred in federal court.” McCullough v. Branch Banking & Trust C0,, 35 F.3d 127, 131
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`(4th Cir. 1994).
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`In this case, the Board contends that plaintiff clearly asserted his failure to accommodate
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`claim in the first charge that he filed with the EEOC on 14 April 2010. (Def.’s Mot. Summ. J.,
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`Ex. 8, DE # 47-11.) He received a right-to-sue letter with respect to that charge on 25 June
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`2010. (mg Ex. 9, DE # 47-12.) However, plaintiff did not file a lawsuit within 90 days of his
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`receipt of the right-to-sue letter on the first EEOC charge. _S_@ 42 U.S.C. § 2000e-5(f)( 1).
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`Plaintiff filed his second EEOC charge on 4 October 2010.
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`(I_d_., Ex. 10, DE # 47-13.) He
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`received a right-to-sue letter with respect to that charge on 30 June 201 1. (Id, Ex. 11, DE # 47-
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`14.) Plaintiffs lawsuit, which was initially filed in North Carolina state court on 30 September
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`201 1 (DE # 1-1), is based on his second EEOC charge.
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`In its memorandum in support of the motion for summaryjudgment, the Board initially
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`argues that there is nothing in plaintiffs second EEOC charge which “remotely suggests that he
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`is complaining about a failure to make reasonable accommodations” within the 180-day
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`limitations period relating to that charge. (Def.’s Mem. Supp. Mot. Summ. J., DE # 48, at 13.)
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`However, as plaintiff points out in his response to the motion, his second EEOC charge contains
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`an initialed handwritten notation which states, “see attachment.” (Pl.’s Mem. Opp’n Mot.
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`Summ. J., DE # 51, at 9; s_e_eal§g Def.’s Mot. Summ. J., Ex. 10, DE # 47-13, at 2.) Plaintiff
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`submitted the two-page attachment to his second EEOC charge as an exhibit to his memorandum
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`in opposition to the motion for summaryjudgment. (Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 21,
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`DE # 53-20, at 3-4.) In that attachment to the second EEOC charge, plaintiff stated: “Michael
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`.....«.r.-mm
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`Bain and Principal Thomas Hatch had both previously been informed in writing that I had been
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`diagnosed with ADHD and hypertension, both medical disabilities, and took no steps to
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`accommodate my disabilities with regard to the evaluation process during the 2009-2010 school
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`year.” (I_d. at 3.)
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`In its reply brief, the Board argues that even if the attachment to the second EEOC charge
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`is consideredf plaintiffs failure to accommodate claim is still time-barred. The Board contends
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`that the request for disability accommodations described by plaintiff in the second EEOC charge
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`is a mere restatement of the original request for accommodations described in his first EEOC
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`charge. (Def.’s Reply Supp. Mot. Summ. J., DE # 54, at 2.) Because plaintiff did not file a
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`lawsuit within 90 days after the receipt of the right-to-sue letter on the first EEOC charge, the
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`Board maintains that plaintiff cannot use the second charge to “revive [his] extinguished claim.”
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`(L1-)
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`The court finds the Board’s argument to be unpersuasive. The first EEOC charge states
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`that Hatch denied plaintiffs request for accommodations in February 2009, i. e., during the 2008-
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`_j.—j:.:.
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`6 The court notes that the Board has not moved to strike the attachment to the second EEOC charge despite
`the fact that it states that the attachment was not produced during discovery and that it had not seen the document
`prior to receiving plaintiff’s memorandum in response to the motion for summary judgment. (Def.’s Reply Supp.
`Mot. Summ. J., DE # 54, at I n.l.) Furthermore, although the Board complains that the attachment to the second
`EEOC charge contains a series of unexplained hand-written notations (i_d_. at 2-3), the court finds that it is possible
`that plaintiff may be able to present the attachment or its contents at trial “in a form that would be admissible in
`evidence.” Fed. R. Civ. P. 56(c)(2). As the Fourth Circuit has noted:
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`In Celotex Corp. v. Catrctt, 477 U.S. 317, 327 (1986), the Supreme Court held that the nonmoving
`party could defeat summary judgment with materials capable of being reduced to admissible
`evidence at trial. .
`.
`.
`[T]he practical question presented by a motion for summary judgment is
`whether the case presents a genuine issue of fact for trial rather than whether the parties have put
`their evidence in final form.
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`. & Sales of Va. Inc., 64 F.3d 920, 926 n.8 (4th Cir. 1995)
`U.S. De ’t of Hous. & Urban Dev. v. Cost Control Mkt
`(emphasis added). Accordingly, it is appropriate for the court to consider the attachment in ruling on the motion for
`summary judgment.
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`2009 school year. (Def.’s Mot. Summ. J., Ex. 8, DE # 47-1 1, at 2.) In contrast, the attachment
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`to the second EEOC charge states that Bain and Hatch “took no steps to accommodate
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`[plaintiffs] disabilities with regard to the evaluation process during the 2009-2010 school year.”
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`(Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 21, DE # 53-20, at 3 (emphasis added).) When viewed in
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`the light most favorable to plaintiff, this language can be construed as alleging a failure to
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`accommodate separate and apart from the first EEOC charge.7 This is enough to create a
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`genuine dispute of material fact as to whether plaintiffs failure to accommodate claim is time-
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`barred. As a result, the Board’s motion for summaryjudgment will be denied with regard to this
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`issue.
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`The court now turns to the substance of plaintiffs failure to accommodate claim.
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`In a
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`failure to accommodate case under the ADA, a plaintiff establishes a prima facie case by
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`showing (1) that he was an individual who had a disability within the meaning of the statute; (2)
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`that the employer had notice of his disability; (3) that with reasonable accommodation he could
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`perform the essential functions of the position; and (4) that the employer refused to make such
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`accommodations. Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314, 322 (4th
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`Cir. 2011) (unpublished) (citing Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001));
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`Haneke v. Mid-Atl. Capital Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005) (per curiam)
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`(unpublished).
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`Here, the only argument made by the Board is that plaintiff cannot establish the fourth
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`element of his ADA accommodation claim. “Implicit in the fourth element is the ADA
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`7 The court also observes that the Fourth Circuit Court of Appeals has directed courts to “construe [EEOC
`charges] liberally” since they are not prepared by lawyers. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir.
`2005); E gls_o Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 594 (4th Cir. 2012) (stating that “untrained parties”
`should not be required “to provide a detailed essay to the EEOC in order to exhaust their administrative remedies”).
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`...Vx_..«-~.-..m..r..»AV
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`requirement that the employer and employee engage in an interactive process to identify a
`reasonable accommodation.” Haneke, 131 F. App’x at 400 (citing 29 C.F.R. § l630.2(o)(3)).
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`As the Fourth Circuit Court ofAppeals has emphasized with respect to the ADA interactive
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`process:
`[N]either party should be able to cause a breakdown in the process for the purpose
`of either avoiding or inflicting liability. Rather, courts should look for signs of
`failure to participate in good faith or failure by one of the parties to make
`reasonable efforts to help the other party determine what specific
`accommodations are necessary. A party that obstructs or delays the interactive
`process is not acting in good faith. A party that fails to communicate, by way of
`initiation or response, may also be acting in bad faith. In essence, courts should
`attempt to isolate the cause of the breakdown and then assign responsibility.
`_C;ra1gl_l, 423 F. App’x at 323 (emphasis added) (citation omitted). Ultimately, “if ajury could
`conclude that [an employer] failed to engage in good faith in the interactive process, and that
`failure led to [the employer] not according reasonable accommodations to [the employee] in a
`timely manner, summary judgment cannot be granted.” Pantazes V. Jackson, 366 F. Supp. 2d 57,
`70 (D.D.C. 2005); s_e§ a_s_o Crutcher v. Mobile Hous. Bd., No. Civ. A. 04-0499-WS-M, 2005 WL
`2675207, at * 12 (S.D. Ala. Oct. 20, 2005) (“The law is clear that an employer’s unreasonable
`delays in identifying and implementing reasonable accommodations can constitute a lack of
`good faith for purposes of the interactive process, and can serve as evidence of an ADA
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`violation.”).
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`In the interactive process, an employer may request and require that the employee
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`provide sufficient medical documentation. §§e_ Phillips v. Donahoe, No. 1:11CV279, 2013 WL
`646816, at * 10 (M.D.N.C. Feb. 21, 2013) (“As part of [the interactive] process, Defendant was
`entitled to ask Plaintiff to provide medical documentation and information in order to determine
`the nature and extent ofhis restrictions and to attempt to determine what accommodations could
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`potentially be provided[.]”); Harvey v. America’s Collectibles Network, Inc., No. 3:09-CV-523,
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`2011 WL 182864, at *8 (E.D. Tenn. Jan. 20, 2011) (“Defendant was within its rights under the
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`ADA to require plaintiff to provide[] the necessary medical information to substantiate her
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`claimed disability and need for an accommodation.”). According to the EEOC, medical
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`“[d]ocumentation is sufficient if it: (1) describes the nature, severity, and duration of the
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`employee’s impairment, the activity or activities that the impairment limits, and the extent to
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`which the impairment limits the employee’s ability to perform the activity or activities; and, (2)
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`substantiates why the requested reasonable accommodation is needed.” EEOC Enforcement
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`Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the
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`Americans with Disabilities Act, Question No. 10 (July 27, 2000), available at
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`http://www.eeoc.gov/policy/docs/guidance-inquiries.html (last visited July 30, 2014) (“E1
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`Enforcement Guidance”).
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`In this case, Hatch spoke with plaintiff about the issue of providing documentation to
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`substantiate the nature and extent of his restrictions in September 2008, followed up that
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`discussion in writing on 10 October 2008, and again reiterated the need for such supporting
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`medical information on 30 January 2009. (T. Hatch Aff., DE # 47-2, 111] 9-10, 12-14 & Ex. 4.)
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`The court concurs with the Board that because the severity of plaintiffs impairment and need for
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`reasonable accommodation were not obvious, Hatch’s requests for medical information to
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`corroborate plaintiffs request for a reasonable accommodation were appropriate.
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`On 3 February 2009, plaintiff provided Hatch with a medical history summary from his
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`physician, Dr. Robert Ferguson (“Dr. Ferguson”). (T. Hatch Aff., DE # 47-2, 1] 15 & Ex. 7; Pl.’s
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`Mem. Opp’n Mot. Summ. J ., Ex. 3, DE # 53-3.) The medical history summary was accompanied
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`by a letter from plaintiff requesting that he be provided with various accommodations. (T. Hatch
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`Aff., DE # 47-2, 1111 15-16 & Ex. 8; Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 3, DE # 53-3.) In part,
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`the requested accommodations included limited evening duties, limited supervision duties
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`outside the classroom, flexible application of “general school-wide procedures,” avoidance of
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`disruptions to his routine, and fewer short notice requests.
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`(I_d_.)
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`The Board argues that the medical history summary provided by Dr. Ferguson was
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`insufficient to support plaintiffs request for disability accommodations because it failed to
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`substantiate why such accommodations were needed. Dr. Ferguson did not address or explain
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`plaintiffs need for any workplace accommodations. To the contrary, Dr. Ferguson noted that
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`plaintiffs ADHD “for the most part is exceedingly well controlled” and that “[h]is symptoms are
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`unlikely to worsen over the years if [plaintiff] is successful in his resolve to improve himself.”
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`(T. Hatch Aff., DE # 47-2,1] 15 & Ex. 7; Pl.’s Mem. Opp’n Mot. Summ. J., Ex. 3, DE # 53-3.)
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`Dr. Ferguson also noted that plaintiff had undertaken a dietary and physical fitness program in an
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`effort to reduce his job related stress, anxiety, and weight.
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`(1_d.)
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`The court agrees with the Board that the documentation provided by Dr. Ferguson was
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`insufficient to support plaintiff’s request for disability accommodations. However, the inquiry
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`does not end there. The EEOC has stated that “if an employee provides insufficient
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`documentation in response to the employer’s initial request, the employer should explain why
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`the documentation is insufficient and allow the employee an opportunity to provide the missing
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`information in a timely manner.” EEOC Enforcement Guidance, Question No. 11.
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`In this case, there is no evidence which indicates that Hatch or any other school official
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`told plaintiff that the documentation that he provided in support of his request for
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`accommodatio