United States Court of Appeals,
Eleventh Circuit.
No. 95-4808
Non-Argument Calendar.
Loretta MORISKY, Plaintiff-Appellant,
v.
BROWARD COUNTY, a political subdivision of the State of Florida,
Defendant-Appellee.
April 11, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6294-CIV-WDF), Wilkie D. Ferguson,
Jr., Judge.
Before TJOFLAT, Chief Judge, and DUBINA and BLACK, Circuit Judges.
PER CURIAM:
We affirm the judgment of the district court for the reasons
stated in the court's dispositive order, attached hereto as an
Appendix.
AFFIRMED.
APPENDIX
THIS CAUSE came before the Court for hearing on December 14,
1994 on Defendant Broward County's Motion for Summary Judgment (DE
# 13). After full consideration of the undisputed facts, memoranda
of law, affidavits, and argument of counsel, it is found as
follows:
BACKGROUND
On approximately February 15, 1994, Loretta Morisky submitted
a form application for the position of Custodian I with the
Defendant Broward County. The job announcement for the custodial
position provided that a written test was required in the
application process. On the face of the form, applicants were
advised to notify the staff if testing assistance was needed due to
a disability. On the education section of the application, Morisky
indicated that she had not received the requisite high school
diploma. Her application was considered nonetheless because she
indicated that she had completed special education courses.1
On the scheduled test date, Morisky arrived at the testing
center accompanied by Robert Magaz, a vocational rehabilitation
counselor. Magaz informed the test proctor that Morisky was
illiterate and was suffering from bronchial asthma. Although
Morisky had not previously requested an accommodation, Magaz
requested that he, or an employee of Broward County, be allowed to
read the test to Morisky. Morisky made a similar request. Both
the proctor and her supervisor refused to allow Morisky to have the
test read to her based upon their belief that an ability to read
was a requirement of the Custodian I position. At no time did
Morisky or Magaz inform anyone employed by Broward County that
Morisky had a mental or developmental disability. Instead, Morisky
elected not to take the test.
On April 6, 1994, Morisky filed the instant complaint against
Defendant Broward County, alleging violations of the Americans with
1
Broward County had previously accommodated Morisky when she
applied for a security guard position. The test proctor allowed
someone to read Morisky the test after she indicated that she was
illiterate. This was allowed based on the proctor's belief that
the ability to read was not an essential requirement for the
security guard position. Here, because the plaintiff failed to
establish a prima facie case, the question of whether reading is
an essential requirement of the Custodian I position remains
undetermined.
Disabilities Act. Specifically, the plaintiff alleges that the
defendant failed to provide a reasonable accommodation for her
disability when it refused to allow her to take an oral examination
in lieu of a written test for the position of Custodian I.
Defendant Broward County argues that plaintiff has failed to
establish a prima facie case under the ADA.
STANDARD ON MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is appropriate:
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to the party's case, and on
which the party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). Additionally, the Celotex Court
stated that: "Rule 56(e) therefore requires that the nonmoving
party go beyond the pleadings and by her own affidavits, or by the
"depositions, answers to interrogatories, and admissions on file,'
designate "specific facts showing there is a genuine issue for
trial.' " Id. at 324, 106 S.Ct. at 2553. The standard for summary
judgment is the same as that for a directed verdict, which "the
trial judge must grant if, under governing law, there can be but
one reasonable conclusion as to the verdict." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91
APPENDIX—Continued
L.Ed.2d 202 (1986) (citing Brady v. Southern R. Co., 320 U.S. 476,
479-80, 64 S.Ct. 232, 234-35, 88 L.Ed. 239 (1943)).
ANALYSIS
The Americans With Disabilities Act provides that no covered
employer shall discriminate against "a qualified individual with a
disability because of the disability of such individual" in any of
the "terms, conditions [or] privileges of employment." 42 U.S.C.
§ 12112(a). Indeed, the ADA imposes upon employers the duty to
provide reasonable accommodations for known disabilities unless
doing so would result in an undue hardship to the employer. 42
U.S.C. § 12112(b)(5)(A). In order to establish a prima facie case
of discrimination in violation of the ADA, the plaintiff must prove
that (1) she has a disability; (2) she is a qualified individual;
and (3) she was subjected to unlawful discrimination because of her
disability. See Tyndall v. National Educ. Ctrs., 31 F.3d 209, 212
(4th Cir.1994).
In support of its motion for summary judgment, Broward County
contends that plaintiff has failed to show that she was
discriminated against "because of" her disability. Specifically,
Broward argues that Morisky has not demonstrated that it had
knowledge of her disability, an essential element of her prima
facie case. In response, Morisky argues that her statements at the
testing site were sufficient to put Broward County on notice of her
disability. Because Broward County concedes, for summary judgment
purposes, that plaintiff is disabled under the Act, the issue the
Court must address is narrow: Will knowledge that an applicant for
employment has a disability be imputed to a prospective employer
from knowledge that the applicant has taken special education
courses and cannot read or write.
Pridemore v. Rural Legal Aid Society of West Central, Ohio,
625 F.Supp. 1180 (S.D.Ohio 1985) is instructive. Pridemore, a
lawyer admittedly suffering from "mild" effects of cerebral palsy,
applied for a staff attorney position with the defendant legal
services agency. After an initial interview he submitted a
seven-page letter to members of the defendant's interview committee
as a supplement to the application. In the letter he did not
specifically mention his cerebral palsy disability. In fact, he
testified that a lay person would not detect the presence of the
condition based on only his outward speech and demeanor. Instead,
he relied on the written document as evidence from which the agency
should have been aware that he was disabled. The first statement
allegedly alerting the agency provided: "I was born, after a
difficult delivery, with minuscule brain damage to the perceptual
and sensory-motor areas of the brain in 1952." The second of those
statements admonished: "Whatever your decision here today, I hope
you do not turn me down in violation of the Rehabilitation Act of
1973."
Pridemore was not offered the position. He brought an action
against his prospective employer alleging that he was denied
employment solely on the basis of his cerebral palsy condition. On
defendant's motion for summary judgment, the court concluded: "[I]
cannot agree that these statements in Plaintiff's letter raise a
genuine issue as to Defendant's knowledge of Plaintiff's cerebral
palsy." Specifically, the court found that the second statement,
which alluded to the Rehabilitation Act, was devoid of any
substantive content. Id. at 1184.
The same logic applies here. Morisky concedes that neither
she nor Magaz, her vocational counselor, informed any of the
employees of Broward County of her specific disability. Instead,
she relies upon the information furnished, that she could not read
and had taken special education courses, as sufficient to put
Broward County on notice of her developmental disorder. While
illiteracy is a serious problem, it does not always follow that
someone who is illiterate is necessarily suffering from a physical
or mental impairment. Jones v. Bowen, 660 F.Supp. 1115, 1121
(C.D.Ill.1987). Vague or conclusory statements revealing an
unspecified incapacity are not sufficient to put an employer on
notice of its obligations under the ADA.
Other courts have rejected the contention that a plaintiff
can sustain a prima facie case of handicap discrimination without
proof that an employer had actual or constructive knowledge of an
applicant's disability. See Hedberg v. Indiana Bell Telephone Co.,
Inc., 47 F.3d 928 (7th Cir.1995). Hedberg worked for Indiana Bell
Telephone Company for over thirty years, serving as a distributor
manager for approximately seven years. He was chosen for
discharge, along with others, during a period of restructuring.
Prior to being told of his termination, however, Hedberg was
informed by the company's physician that he suffered from primary
amyloidosis, an often fatal illness.
After appealing his discharge, Hedberg sued the phone company,
claiming that the company fired him because he had primary
amyloidosis, which both parties agreed constituted a "disability"
as the ADA defines the term. In granting the phone company's
motion for summary judgment, the district court found that "Hedberg
[could not] succeed on his ADA claim if the decision to terminate
[him] was reached without knowledge that [he] had a disability."
On appeal, the Seventh Circuit affirmed, touching on the relevant
issue in this case:
[A]n employer cannot be liable under the ADA for firing an
employee when it indisputably had no knowledge of the
disability.... At the most basic level, it is intuitively
clear when viewing the ADA's language in a straightforward
manner that an employer cannot fire an employee "because of "
a disability unless it knows of the disability. If it does
not know of the disability, the employer is firing the
employee "because of " some other reason. (emphasis added).
Id. at 932. See O'Keefe v. Niagara Mohawk Power Corp., 714
F.Supp. 622 (N.D.N.Y.1989) (employer did not violate New York law
APPENDIX—Continued
when it discharged plaintiff prior to becoming aware of his alcohol
problem); Landefeld v. Marion General Hospital, 994 F.2d 1178 (6th
Cir.1993) (Internists could not prove hospital suspended him
because of his mental illness absent evidence that it knew of that
illness). There is no evidence in this case that the defendant
knew that the plaintiff's inability to read was a result of an
organic dysfunction rather than a lack of education.
CONCLUSION
Based upon the foregoing, it is
ORDERED AND ADJUDGED that the Defendant Broward County's
Motion for Summary Judgment is GRANTED.