Morisky v. Broward County, 95-4808

Citation80 F.3d 445
Decision Date11 April 1996
Docket NumberNo. 95-4808,95-4808
Parties5 A.D. Cases 737, 15 A.D.D. 792 Loretta MORISKY, Plaintiff-Appellant, v. BROWARD COUNTY, a political subdivision of the State of Florida, Defendant-Appellee. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Jay M. Levy, Miami, FL, Barbara L. Kornblau, Law Office of Barbara L. Kornblau, Miami, FL, and R. Cory Schnepper, Levine, Busch, Schnepper & Stein, P.A., Miami, FL, for appellant.

Tamara A. McNierney, Broward County Attorney's Office, Ft. Lauderdale, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, and DUBINA and BLACK, Circuit Judges.


We affirm the judgment of the district court for the reasons stated in the court's dispositive order, attached hereto as an 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:


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 On April 6, 1994, Morisky filed the instant complaint against Defendant Broward County, alleging violations of the Americans with 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.

                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


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 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)).


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 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...

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