Swain v. Hillsborough County School Bd.

• Decision Date: 15 July 1998
• Docket Number: No. 97-3019,97-3019
• Citation: 146 F.3d 855
• Parties: 127 Ed. Law Rep. 81, 8 A.D. Cases 488, 13 NDLR P 116, 11 Fla. L. Weekly Fed. C 1593 Rose SWAIN, Plaintiff-Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 855

146 F.3d 855

127 Ed. Law Rep. 81, 8 A.D. Cases 488,

13 NDLR P 116,

11 Fla. L. Weekly Fed. C 1593

Rose SWAIN, Plaintiff-Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD, Defendant-Appellee.

No. 97-3019.

United States Court of Appeals, Eleventh Circuit.

July 15, 1998.

Rosemarie Richard, Richard & Richard, Stuart, FL, for Plaintiff-Appellant.

Thomas M. Gonzalez, Kelly L. Soud, Tampa, FL, for Defendant-Appellee.

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

Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

BLACK, Circuit Judge:

Plaintiff Rose Swain appeals the district court's order granting summary judgment for Defendant Hillsborough County School Board (HCSB) in her suit alleging that HCSB discriminated against her due to her incontinence in violation of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213. We hold that Swain does not have a disability as defined by the ADA and affirm the decision of the district court.

I. BACKGROUND

Between 1963 and 1981, Swain worked as a teacher and an administrator in the Hillsborough County school system. Swain took an extended leave of absence beginning in 1981, but returned to the school system in 1986. Upon her return, Swain worked as a teacher in the GED day program for at-risk students at Jefferson High School (Jefferson). In 1992, the principal at Jefferson terminated the program, so Swain transferred to the GED day program at Plant City High School (Plant City). Swain taught at Plant City for two years without needing any special accommodation for her incontinence. ¹

In order for students to change classes, they are given a period of time (passing time) to go from one classroom to another. Although the GED students were in self-contained classes and did not need the passing time, they were permitted to leave their classrooms during that time. In early 1994, William L. Maxwell, Jr., became the principal at Plant City. At the beginning of the 1994-95 school year, Maxwell instituted a policy prohibiting GED students from leaving their assigned classroom when other students changed classes (no-passing policy). Maxwell adopted the new policy to eliminate alleged problems with student tardiness.

Upset by this policy, Swain complained to Maxwell and Dr. Joan Dye, the assistant principal for adult education at Plant City. She believed the policy was demeaning to herself and her students. She also complained that she did not have adequate opportunity to use the restroom herself. After several informal discussions, Swain met with Maxwell on September 15, 1994, to discuss the policy. According to Swain, Maxwell refused to hear her complaints and threatened to close the GED day program if Swain continued to protest the policy. In these initial discussions, Swain did not inform Maxwell or Dye of her physical problems.

Swain's condition posed no problem when the GED students were permitted to leave the room during passing time, but the implementation of the no-passing policy limited Swain's access to the restroom. Although Swain had sufficient access in the morning due to a conference period and a lunch break, Swain did not have a break between 1:00 P.M. and 3:55 P.M. Due to the length of this period, the lack of restroom access became problematic for Swain.

On October 3, 1994, Swain met with Dye and informed Dye of her incontinence. Dye suggested that Swain decrease her intake of fluids in the morning or simply leave her class unattended when she needed to use the bathroom. In a memorandum to Dye and Maxwell, Swain rejected these suggestions as unreasonable. Dye then suggested that Swain arrange a trade-off in which Swain would briefly sit in on another teacher's class in the morning during Swain's conference period, and the other teacher would briefly sit in on Swain's class in the afternoon during that teacher's conference period so that Swain could use the restroom.

Swain did not think that exchanging teachers was an educationally sound practice, but she did find two colleagues who were willing to relieve her for brief periods during their afternoon conference periods so that Swain could visit the restroom. On October 21, 1994, Swain informed Maxwell that she had found a teacher to relieve her during the afternoon period and gave Maxwell the teacher's name. On November 2, 1994, Maxwell again raised the issue with Swain, who reiterated that the problem was resolved. After this second occasion, Swain made no mention to Maxwell or Dye of her problem and made no additional request for an accommodation.

Swain retired on March 31, 1995. In her deposition, Swain stated that she retired because her relationship with the administration had deteriorated, in large part because she felt the administration had denigrated the GED program and demeaned her and her students. Swain did not indicate that her physical impairments or a lack of an accommodation contributed to the decision, but she later stated in an affidavit in opposition to summary judgment that they were the primary reason motivating her departure.

Swain brought this suit alleging that HCSB failed to provide her with a reasonable accommodation as required by the ADA and that she was constructively discharged by HCSB as a result of this failure. HCSB then filed a motion for summary judgment. The court granted the motion because it concluded that Swain did not have a disability under the ADA, and that even if she did, HCSB reasonably accommodated Swain's disability and did not constructively discharge her. Swain appealed.

II. ANALYSIS

We review a district court's grant of summary judgment de novo applying the same standards as the district court. Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th Cir.1996). The court must view all the evidence and all factual inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997). Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

To establish a prima facie case under the ADA, Swain must show: (1) she has a disability; (2) she is a qualified individual; and (3) she was discriminated against because of the disability. ² 42 U.S.C. § 12132; see also, e.g., Harris v. H & W Contracting Co., 102 F.3d 516, 519 (11th Cir.1996). The ADA defines disability as:

(A) a physical or mental impairment that substantially limits one or more of the 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(2). Swain makes no argument that she satisfies the second or third prong of the definition. She relies solely on the assertion that her physical ailments substantially limit a major life activity. Here, Swain claims her impairments affect the major life activity of working. Thus, to establish a prima facie case and survive summary judgment, Swain must present sufficient evidence to create a genuine issue of material fact as to whether her physical impairments substantially limit her ability to work.

The governing regulations provide guidance to courts determining whether a person's impairments substantially limit the major life activity of working:

The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the...