DR. BONNIE GERALD, Plaintiff,
UNIVERSITY OF SOUTHERN MISSISSIPPI (USM); DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY; DR. ROBERT LYMAN, INDIVIDUALLY AND OFFICIALLY; DR. KATHY YADRICK, INDIVIDUALLY AND OFFICIALLY; DR. MIKE FORSTER, INDIVIDUALLY AND OFFICIALLY, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendants' Motion for Summary Judgment  and Motion to Strike Affidavit of Dr. Rocco A. Barbieri ("Motion to Strike") . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that both motions should be granted in part and denied in part.
Plaintiff Dr. Bonnie Gerald asserts several federal and state law claims in relation to her former employment at the University of Southern Mississippi ("USM") in Hattiesburg, Mississippi. Defendant Dr. Martha Saunders was the President and Defendant Dr. Robert Lyman was the Provost of USM at all times relevant to the Complaint. Defendant Dr. Kathy Yadrick was Dr. Gerald's supervisor and is the Chair of the Department of Nutrition and Food Systems ("NFS") at USM. Defendant Dr. Mike Forster is the Dean of USM's College of Health, which encompasses the NFS, and is Dr. Yadrick's supervisor.
In May of 2007, Dr. Gerald was hired as an Associate Professor of Nutrition and Food Systems at USM. This was a tenure track appointment. The tenure track at USM is typically composed of six annual contracts. Prior to her employment at USM, Dr. Gerald was a tenured professor at Louisiana Tech University ("LTU"). USM gave Dr. Gerald a one-year credit toward tenure in light of her prior employment at LTU.
On October 10, 2009, during the third year of her employment, Dr. Gerald was involved in a serious motorcycle accident. Dr. Gerald sustained multiple fractures (including, but not limited to, two broken legs, two broken ankles, a broken arm, and a broken clavicle) and spleen damage, which necessitated extensive medical treatment and hospitalization. Dr. Gerald was unable to work for the remainder of the fall semester and missed the entire spring semester of 2010 as a result of her injuries. Dr. Gerald taught one online class and participated in a research project in the summer of 2010. She resumed teaching classes in person in the fall of 2010. Dr. Gerald used a walker or cane at various times after she returned to teaching at USM. Also, Dr. Gerald visited the hospital approximately five (5) times between August of 2010 and May of 2011 for treatment relating to the injuries she sustained in her motorcycle accident or for resulting complications.
All faculty at USM undergo annual performance evaluations. In addition, tenure track faculty receive a "pre-tenure" review during the third year of their employment. Generally, the purpose of the pre-tenure review is to determine if a faculty member is making satisfactory progress toward tenure. Dr. Gerald's pre-tenure review should have occurred in the spring of 2010. However, the review was delayed until 2011 because of Dr. Gerald's motorcycle accident. Dr. Gerald's pre-tenure review processed through the following decisionmakers: (1) the NFS pre-tenure review committee (composed of tenured faculty members Dr. Denise Brown, Dr. Carol Connell, and Dr. Elaine Molaison); (2) the NFS Chair, Dr. Yadrick; (3) the College Advisory Committee ("CAC") (composed of seven tenured faculty members from the College of Health); (4) the Dean of the College of Health, Dr. Forster; and (5) the Provost, Dr. Lyman.
On February 9, 2011, the members of the NFS pre-tenure review committee (the "NFS Committee") unanimously recommended against the renewal of Dr. Gerald's employment. ( See Doc. No. [26-10].) The NFS Committee noted deficiencies in "minimum requirements for category 2 research dissemination"; student evaluation ratings per "the department mean of 4.33"; and Dr. Gerald's responsiveness to "issues raised by students since her appointment...." ( See Doc. No. [26-10] at pp. 1-2.) On March 1, 2011, Dr. Yadrick recommended against the continued employment of Dr. Gerald. ( See Doc. No. [26-11].) Dr. Yadrick found that Dr. Gerald did not meet "important expectations of her employment as an associate professor; her teaching performance has been a particular issue of chronic concern." (Doc. No. [26-11] at p. 1.) On March 21, 2011, the CAC, by a vote of 6-0 (with one recusal), concurred with the NFS Committee and Dr. Yadrick, and recommended that "Dr. Gerald not be granted the requested pre-tenure renewal contract." (Doc. No. [26-12].) On April 7, 2011, Dr. Forster concurred with the evaluations of the NFS Committee, Dr. Yadrick, and the CAC. ( See Doc. No. [26-13].) On May 12, 2011, Dr. Lyman advised Dr. Gerald in writing that she had "received a negative endorsement from the department tenured faculty, department chair, the college advisory committee, and the Dean." (Doc. No. [26-14].) Dr. Lyman further provided that he agreed with the determination that Dr. Gerald was not making satisfactory progress toward tenure. As a result, Dr. Gerald was to "be issued a terminal contract for 2011-2012." (Doc. No. [26-14].)
On July 22, 2011, before any terminal contract was issued to Dr. Gerald, she advised Dr. Forster in writing that she was resigning effective August 19, 2011, so that she could "pursue other interests." (Doc. No. [26-15] at p. 1.) Also on July 22, Dr. Gerald advised Dr. Yadrick in writing that, inter alia, she refused to continue to work for a supervisor who views her "severe injuries as annoyances and makes tactless remarks about my physical condition in the presence of staff". (Doc. No. [26-15] at p. 2.)
On February 9, 2012, Dr. Gerald submitted her Charge of Discrimination [26-12] to the Equal Employment Opportunity Commission ("EEOC"), alleging disability and gender discrimination. On May 25, 2012, the EEOC issued its Dismissal and Notice of Rights [26-17].
On July 3, 2012, Dr. Gerald filed suit against the Defendants in the Circuit Court of Forrest County, Mississippi. ( See Compl. [26-1].) The Complaint asserts that the Defendants intentionally discriminated against Dr. Gerald because of her disability and failed to provide reasonable accommodations in violation of the Americans with Disabilities Act ("ADA") and/or the Rehabilitation Act of 1973. Gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended to include the Lilly Ledbetter Fair Pay Act of 2009, is alleged on the basis of a male professor, who was purportedly less qualified than Dr. Gerald, receiving a favorable pre-tenure review. Dr. Gerald further seeks relief under Title 42 U.S.C. § 1983 for alleged violations of her rights to due process and equal protection, as well as her rights under the First Amendment. Dr. Gerald also alleges the following state law claims: intentional infliction of emotional distress, negligent infliction of emotional distress, breach of implied contract, constructive discharge, outrage, negligence, menace, promissory estoppel, equitable estoppel, detrimental reliance, and breach of express contract.
On August 31, 2012, the Defendants timely removed the proceeding to this Court on the basis of federal question subject matter jurisdiction under Title 28 U.S.C. § 1331. ( See Notice of Removal .) On October 10, 2013, the Court granted in part and denied in part Defendants' Motion to Strike the Plaintiff's Designation of Dr. Rocco A. Barbieri as an Expert on the Plaintiff's Alleged Disabilities . ( See Op. & Order .) The Court found that Dr. Barbieri had not been properly designated as an expert witness, and thus held that "Dr. Barbieri will not be permitted to present expert testimony at trial under Federal Rule of Evidence 702." (Op. & Order  at p. 12.) However, the Court found that Dr. Barbieri could testify as a fact witness "regarding his treatment of the Plaintiff as reflected in any medical record documenting the treatment." (Op. & Order  at pp. 12-13.)
On September 6, 2013, Defendants filed their Motion for Summary Judgment . Dr. Gerald submitted an affidavit from Dr. Barbieri in support of her opposition to summary judgment. ( See Barbieri Aff. [34-6].) On November 12, 2013, Defendants filed their Motion to Strike , arguing that Dr. Barbieri's affidavit violates the Court's October 10 Opinion and Order .
I. Motion to Strike 
The following portions of Dr. Barbieri's affidavit are the subject of this motion:
3. Although I have been, for many years, a Board Certified Orthopedic Surgeon, a layman could easily see that, throughout the years 2010 through 2011, Dr. Gerald was disabled, physically impaired, and was substantially limited in regard to her ability to work, walk, stand, or engage in numerous other major life activities to include: caring for herself, performing manual tasks, sleeping, lifting, bending, and/or concentrating.
4. In laymen's terms she had two broken legs, two broken ankles, a broken arm, fractures, spleen damage and a broken clavicle. She had multiple skin grafts, infections, requiring additional hospitalization, that resulted from the foregoing. These infections contributed significantly to extensive swelling in her extremities. She needed considerable assistance and accommodations regarding walking or standing or working. Often she needed a cane, walker, and/or wheelchair to ambulate.
5. Clearly, she was disabled in 2010 and 2011. Clearly, as anyone could see, she needed assistance and accommodations so she could work.
6. Against my advice, she did her best to return to work because she needed to survive. My office allowed her to return to work assuming, because it was an obvious need, that she would be assisted and accommodated in her work - particularly in the teaching aspect of her profession.
(Barbieri Aff. [34-6] at pp. 1-2.)
Dr. Barbieri's statements regarding Dr. Gerald's injuries, the resulting medical treatment, and whether Dr. Gerald returned to work against his advice fall within the scope of the fact witness testimony authorized by the Court's October 10 Opinion and Order  and evidenced by Dr. Gerald's medical records. Conversely, Dr. Barbieri's opinions regarding whether Dr. Gerald was disabled or physically impaired, whether she was substantially limited in her ability to engage in major life activities, and whether she needed accommodations fall within the scope of testimony prohibited by the Court's Order . It appears that these opinions are not "reflected in any medical record documenting... [Dr. Barbieri's] treatment" of Dr. Gerald. (Op. & Order  at pp. 12-13.) Also, notwithstanding the reliability vel non of these opinions or whether they would assist the trier of fact, the opinions appear to be based on the "scientific, technical, or other specialized knowledge" of a board certified orthopedic surgeon. Fed.R.Evid. 702(a).
Dr. Gerald's central argument that Dr. Barbieri is merely offering lay witness testimony is unavailing. Federal Rule of Evidence 701, permitting opinion testimony by lay witnesses, was amended in 2000 to exclude any testimony "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701(c). The advisory committee notes to the amendment explain that Rule 701 was amended to eliminate the risk of a party evading the reliability requirements of Rule 702 and the disclosure requirements of Federal Rule of Civil Procedure 26 "by simply calling an expert witness in the guise of a layperson." Fed.R.Evid. 701 advisory committee's note. Moreover, Dr. Gerald previously took the position that Dr. Barbieri would be called to "provide expert testimony regarding the fact of and extent of disability of Plaintiff while employed at USM, the impact of that disability regarding significant and substantial life activities, and the obvious needs she had regarding her need to be accommodated regarding her disabilities while employed at USM." (Pl.'s Suppl. of Disc. [25-1] at p. 3) (emphasis added). Dr. Gerald's present position that "[n]ot one expert opinion is contained in" Dr. Barbieri's affidavit borders on frivolity. (Pl.'s Mem. in Supp. of Resp. to Mot. to Strike  at p. 2.) Therefore, the Motion to Strike  is granted to the extent that the Court will not consider the following portions of Dr. Barbieri's affidavit in ruling on summary judgment: (i) paragraph 3; (ii) the fourth sentence of paragraph 4; (iii) paragraph 5; and (iv) the second sentence of paragraph 6. The motion is otherwise denied.
II. Motion for Summary Judgment 
A. Standard of Review
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if 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). Initially, the movant has "the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the movant meets this burden, the nonmovant must go beyond the pleadings and point out specific facts showing the existence of a genuine issue for trial. Id. "An issue is material if its resolution could affect the outcome of the action.'" Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary Judgment is mandatory "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp., 477 U.S. at 322).
B. Federal Claims
The Court initially addresses Dr. Gerald's federal claims that fail as a matter of law. Dr. Gerald alleges disability discrimination in connection with her employment in violation of Title I of the ADA, 42 U.S.C. § 12112, and/or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The Fifth Circuit has held that the text of the Rehabilitation Act does not provide for suit against a defendant in his or her individual capacity, and that § 1983 cannot be used as an alternative method for vindicating rights granted by the Rehabilitation Act. See Lollar v. Baker, 196 F.3d 603, 608-10 (5th Cir. 1999) (reasoning that Congress' enactment of a comprehensive enforcement mechanism for the protection of individuals with disabilities through 29 U.S.C. § 794(a) foreclosed resort to the general remedial provisions of 42 U.S.C. § 1983); see also D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 456-57 (5th Cir. 2010) (following Lollar and holding that the plaintiff could not pursue his ADA and Rehabilitation Act claims against the defendant school district through § 1983). The Court has been unable to identify any published Fifth Circuit opinion addressing individual liability under the ADA. However, in a 2012 unpublished opinion, the Fifth Circuit noted that "the rights and remedies under the ADA and the RA are the same, " and found that defendants could not be sued for ADA violations in their individual capacities. Nottingham v. Richardson, 499 Fed.Appx. 368, 376 n.6 (5th Cir. 2012). Numerous district courts within the Fifth Circuit have also dismissed ADA claims asserted against defendants in their individual capacities given the similarities between the ADA and Rehabilitation Act. See, e.g., Franklin v. City of Slidell, 936 F.Supp.2d 691, 703 (E.D. La. 2013) ("[I]ndividuals are not subject to liability under Title I of the ADA."); Pena v. Bexar County, Tex., 726 F.Supp.2d 675, 689-90 (W.D. Tex. 2010) (dismissing the plaintiff's § 1983 claims against the defendants in their individual capacities for violations of the ADA); Decker v. Dunbar, 633 F.Supp.2d 317, 357 (E.D. Tex. 2008) (same), aff'd, 358 Fed.Appx. 509 (5th Cir. 2009). Dr. Gerald's ADA and Rehabilitation Act claims against Dr. Yadrick, Dr. Forster, Dr. Lyman, and Dr. Saunders (sometimes collectively referred to as the "Individual Defendants"), in their individual capacities, will be dismissed under the weight of the preceding authorities. This ruling extends to any allegations of disability discrimination asserted against the Individual Defendants in their individual capacities under 42 U.S.C. § 1983. In addition, the Court will not undertake any separate analysis as to Dr. Gerald's ADA and Rehabilitation Act claims against the Individual Defendants in their official capacities since USM, "the real party in interest", is a party to the lawsuit. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (Official capacity claims "generally represent only another way of pleading an action against an entity of which an officer is an agent.") (citation omitted).
The Fifth Circuit has also held that "[i]ndividuals are not liable under Title VII in either their individual or official capacities." Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003) (citing Smith v. Amedisys Inc., 298 F.3d 434, 448-49 (5th Cir. 2002)). Thus, Dr. Gerald's claims against the Individual Defendants under Title VII are due to be dismissed. This ruling does not extend to Dr. Gerald's allegations of gender discrimination asserted against these Defendants in their individual capacities under 42 U.S.C. § 1983. See Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 549-50 (5th Cir. 1997) (holding that plaintiffs can maintain parallel Title VII and § 1983 claims because sex discrimination by a public employer violates the Fourteenth Amendment's Equal Protection Clause irrespective of Title VII).
It is also well settled that states and state agencies are not "persons" subject to suit under § 1983. Cheramie v. Tucker, 493 F.2d 586, 587 (5th Cir. 1974). This rule extends to public employees sued in their official capacities since an official capacity claim is asserted "against the official's office" and "is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citations omitted). USM is an agency or arm of the State of Mississippi. See Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1168 (¶ 12) (Miss. Ct. App. 2007); accord Salcido v. Univ. of S. Miss., No. 2:11cv173, 2013 WL 2367877, at *2 (S.D.Miss. May 29, 2013); Nichols v. Univ. of S. Miss., 669 F.Supp.2d 684, 693 (S.D.Miss. 2009). Therefore, USM is entitled to judgment as a matter of law with respect to Dr. Gerald's § 1983 claims. The same result follows as to Dr. Gerald's demand for monetary damages under § 1983 against the Individual Defendants in their capacities as officers of USM.
The Court next addresses, as a preliminary matter, the Defendants' assertion that Dr. Gerald's claims under the ADA and Title VII are time-barred. "A Title VII claimant must file charges with the EEOC within 180 days after the alleged illegal conduct." Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999) (citing 42 U.S.C. § 2000e-5(e)(1)). Title I of the ADA incorporates by reference Title VII's administrative prerequisites for filing suit in federal court. See 42 U.S.C. § 12117(a); Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). The 180-day period acts as a statute of limitations. Hood, 168 F.3d at 232 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). Discrete employment actions, "such as termination, failure to promote, denial of transfer, or refusal to hire", occurring more than 180 days before an EEOC charge is filed are not actionable. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). However, under a continuing violation theory of recovery such as a hostile work environment claim, "a plaintiff is relieved of establishing that all of the alleged discriminatory conduct occurred within the actionable period, if the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004) (citing Felton v. Polles, 315 F.3d 470, 487 (5th Cir. 2002)). This is because a hostile work environment claim is comprised of multiple "acts that collectively constitute one unlawful employment practice.'" Morgan, 536 U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)). Nonetheless, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113.
Dr. Gerald filed her Charge of Discrimination [26-16] with the EEOC on February 9, 2012. Defendants thus contend that Dr. Gerald is precluded from proceeding with her Title VII and ADA claims based on any acts that occurred prior to August 13, 2011, 180 days before the charge was filed. Specifically, Defendants assert that Dr. Gerald's Title VII and ADA claims relating to her negative pre-tenure review and USM's resulting decision not to renew her employment are time-barred since the review was completed and the employment decision was made by May 12, 2011. Defendants further assert that Dr. Gerald's claims under the ADA for failure to provide accommodations are untimely since Dr. Gerald testified at deposition that she was refused accommodations in the fall of 2010; that she made no requests for accommodations in the spring of 2011; and, "that the purported chain of events' during which the Defendants allegedly refused her accommodation stretched from August 2010 to June 1, 2011." (Defs.' Mem. Brief in Supp. of Mot. for SJ  at p. 7.)
The Court finds that Dr. Gerald's Title VII and ADA claims relating to her negative pre-tenure review and the determination not to renew her employment are untimely. Dr. Gerald was clearly advised of these discrete acts by Dr. Lyman in his letter of May 12, 2011. ( See Doc. No. [26-14].) Although it appears that Dr. Gerald continued to work at USM until August 19, 2011, "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Del. State Coll. v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (citation omitted). In Ricks, the Supreme Court considered whether a college professor timely complained of national origin discrimination under Title VII in connection with the denial of academic tenure. Id. at 252. On March 13, 1974, the College Board of Trustees voted to deny tenure to Ricks. Id. On June 26, 1974, the Trustees advised Ricks that he would be offered a terminal contract expiring on June 30, 1975. Id. at 253. Ricks contended that his time to file a complaint with the EEOC started to run when his contract expired in June of 1975. Id. at 259. The Supreme Court disagreed and concluded "that the limitations periods commenced to run when the tenure decision was made and Ricks was notified" in June of 1974. Id. at 259, 262. The Court reasoned that Ricks' termination of employment was the delayed, but inevitable, result of the denial of tenure, and "that [t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Id. at 257-58 (citations and internal quotation marks omitted); cf. Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 456 (5th Cir. 2011) ("An employment event that is merely an effect of a prior employment decision does not constitute a separate and distinct act that begins the calendar anew for bringing an ADEA claim.") (citation omitted). Similar to Ricks, Dr. Gerald's continued employment beyond the date she was advised that she would "be issued a terminal contract for 2011-2012" fails to prolong her time to complain to the EEOC of discrimination.
The Court also determines that Dr. Gerald waited too late to file her EEOC charge in connection with the Defendants' alleged failure to afford her reasonable accommodations under the ADA. The Fifth Circuit has held that the failure to accommodate a disability constitutes a discrete act that must be timely brought before the EEOC in order for a claimant to obtain relief under the ADA. See Henson v. Bell Helicopter Textron, Inc., 128 Fed.Appx. 387, 391 (5th Cir. 2005). Dr. Gerald alleges that she was denied the following requested accommodations at USM: (i) teaching online classes; (ii) a graduate assistant for twenty (20) hours per week; (iii) rescheduling the laboratory portion of a class; (iv) assistance with transferring and organizing her files and equipment when she was moved to another office; and, (v) an extension cord for her new office. ( See Gerald Dep. [26-2] 154:8-157:19, 168:2-14, 171:11-175:14.) Viewing the relevant summary judgment evidence in Dr. Gerald's favor, which largely consists of her deposition testimony, the Court finds no denial of any request for accommodation occurring within the 180-day EEOC charging period, beginning on August 13, 2011. All of the above-listed requests for accommodations were purportedly made and denied either in the summer or fall of 2010. ( See Gerald Dep. [26-2] 155:4-22, 156:23-157:8, 167:3-7, 168:2-14, 171:20-175:14.) Dr. Gerald could not recall whether she made any requests for accommodation in the spring of 2011. ( See Gerald Dep. [26-2] 199:4-200:2.) However, she felt at that time that "the environment was contaminated" and that "any request I made was not going to be granted." (Gerald Dep. [26-2] 198:1-11.) Dr. Gerald also testified that she communicated her concerns regarding her requests for accommodation not being met to Dr. Rebecca Woodrick, USM's Director of the Office of Affirmative Action and Equal Employment Opportunity, and Dr. Forster in or about January of 2011. ( See Gerald Dep. [26-2] 203:9-205:18.) Pursuant to her sworn testimony, Dr. Gerald had sufficient information for the statute of limitations to accrue on her ADA failure to accommodate claims prior to the cutoff date of August 13, 2011. Cf. Windhauser v. Bd. of Supervisors for La. State Univ. & Agric. & Mech. Coll., 360 Fed.Appx. 562, 566 (5th Cir. 2010) (finding a university professor's failure to accommodate allegations to be time-barred, and noting that the alleged discriminatory acts should have put the professor on notice that a cause of action had accrued); Stewart v. District of Columbia, No. Civ.A. 04-1444, 2006 WL 626921, at *3 (D.D.C. Mar. 12, 2006) ("[I]t is well-settled that [t]he statute of limitations for ADA claims accrues at the time when the plaintiff knew or had reason to know of the injury serving as the basis for his claim.") (citation and internal quotation marks omitted).
Dr. Gerald appears to invoke the continuing violation doctrine in response to the Defendants' time-based requests for dismissal. "[T]he actual facts show a continuing stream of misconduct on the part of defendants that reflects a failure to accommodate Dr. Gerald regarding her disabilities, denigrating her, demeaning her, and intentionally make [sic] her workplace hostile and intolerable." (Pl.'s Mem. Brief in Supp. of Resp. to Mot. for SJ  at p. 3.) This argument fails to alter the preceding determinations. First, Dr. Gerald's negative pre-tenure review, USM's decision not to renew her employment beyond 2012, and the Defendants' alleged failure to accommodate her disabilities constitute "discrete actions... not entitled to the shelter of the continuing violation doctrine." Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003) (citing Huckabay v. Moore, 142 F.3d 233, 238-39 (5th Cir. 1998)); see also Pegram, 361 F.3d at 280 (finding the continuing violation doctrine inapplicable to alleged discrete acts of racial discrimination). Second, even assuming arguendo the existence of a series of related discriminatory acts, there is no evidence of at least one act of discrimination occurring on or after August 13, 2011. See Pegram, 361 F.3d at 279-80 (" Morgan makes clear that claims based... on hostile environment are only timely where at least one act occurred during the limitations period."). Dr. Gerald testified at deposition that the "chain of events" pertaining to her requests for accommodations stretched "from August of 2010 through June 1 of 2011." (Gerald Dep. [26-2] 257:6-12) (emphasis added). E-mails between Dr. Yadrick and Dr. Connell (and Dr. Forster) referenced by Dr. Gerald as evidence of an intolerable workplace are dated August 16, 2010. ( See Doc. Nos. [34-14], [34-15].) Further, it is undisputed that Dr. Gerald's July 22, 2011 notice of resignation to Dr. Yadrick stated that she refused to continue to work for a supervisor who viewed her "severe injuries as annoyances and makes tactless remarks about my physical condition in the presence of staff". (Doc. No. [26-15] at p. 2.) The mere continuation of Dr. Gerald's employment from July 22 to August 19, 2011, failed to restart the period of limitations for any prior alleged acts of discrimination. See Ricks, 449 U.S. at 257-58; Phillips, 658 F.3d at 456.
The Court next considers whether the Lilly Ledbetter Fair Pay Act of 2009 ("FPA"), Pub. L. No. 111-2, 123 Stat. 5, saves any of Dr. Gerald's Title VII claims from dismissal. The FPA added the following provision to Title VII:
For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time ...