ALEXANDER LAKES, Plaintiff, v. FULTON COUNTY SCHOOL DISTRICT, Defendant CIVIL ACTION FILE NO. 1:17-cv-04685-WMR-CMS United States District Court, N.D. Georgia, Atlanta Division Filed March 06, 2019 Counsel Kristine Orr Brown, Orr, Brown & Billips, LLP, Gainesville, GA, Matthew C. Billips, Barrett & Farahany, Atlanta, GA, for Plaintiff. Jeffrey Robert Daniel, Marquetta Johnson Bryan, Nelson Mullins Riley & Scarborough LLP, Atlanta, GA, for Defendant. Salinas, Catherine M., United States Magistrate Judge ORDER *1 On November 21, 2017, Plaintiff filed in this Court an employment discrimination complaint against defendant Fulton County School District (“Defendant” or “the School District”), asserting disability discrimination and failure to accommodate, under Title I of the Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”). [Doc. 1, Compl.]. This matter is before the Court on Plaintiff's Motion to Compel and to Extend Discovery as Needed [Doc. 38]. Defendant has filed a response in opposition to Plaintiff's motion [Doc. 41], and Plaintiff has filed a reply [Doc. 42]. The motion has been fully briefed and is before me for consideration. I. BACKGROUND In 2007, Plaintiff was hired by the School District and he is still employed there.[1] [Doc. 44, Deposition of Alexander Lakes (“Lakes Dep.”), at 10-11, 36]. At all relevant times, Plaintiff has been assigned to Renaissance Middle School, where he works as an IRR special education teacher. [Compl. ¶ 11]. From October 8, 2015 through January 3, 2016, Plaintiff took a medical leave of absence from work, pursuant to the Family and Medical Leave Act (“FMLA”). [Compl. ¶¶ 12-14, 16]. Plaintiff alleges that on or about December 5, 2015, while he was out on leave, Plaintiff submitted a written request for a reasonable accommodation along with a copy of a letter from his treating physician, and he asked to be transferred to a different position. [Id. ¶¶ 12-14]. In his deposition, Plaintiff testified that during that school year, due to the type and mix of students assigned to him,[2] he was having severe headaches, chest pains, elevated blood pressure, dizziness, shortness of breath, anxiety, and stress that were affecting his diabetes and negatively impacting his ability to work as a teacher in the classroom. [Lakes Dep. at 53-56, 85, 91]. Plaintiff returned from his FMLA leave in January 2016 without having received a response to his request for accommodation. He alleges that when he inquired about his request, he was informed that the School District had no record of it, and that if he had submitted something, it had been lost. [Compl. ¶¶ 17-18]. In February 2016, Plaintiff submitted a second written request for accommodation and transfer to a different position. [Compl. ¶ 19]. At that time, Lance Young was executive director of HR operations for the School District, and one of his responsibilities was to evaluate requests for accommodation under the ADA. [Doc. 45, Deposition of Lance Young (“Young Dep.”) at 9, 18-20]. Young testified in his deposition that in evaluating the ADA requests, he periodically reached out to legal counsel for advice on a variety of subjects, including whether an employee was considered disabled under the ADA. [Id. at 20-22]. Mr. Young testified that he reached out to the School District's attorney to discuss whether Plaintiff's February 2016 ADA request showed a disability under the ADA. [Id. at 22-23, 26, 30, 37]. Mr. Young did not speak with Plaintiff's doctor. [Id. at 37]. The Accommodation Request form and Document of Disability form (completed by Plaintiff's physician) that Plaintiff submitted to the School District in February 2016 indicated that Plaintiff had been diagnosed with headaches, stress/anxiety, chest pains, elevated blood pressure, panic attacks, and depression, and that he was substantially limited in breathing, sleeping, learning, reading, concentrating, thinking, and working. [Compl. ¶ 19]. The forms, however, did not indicate that Plaintiff had also been diagnosed with Type 2 diabetes, a point that becomes important to this discovery dispute later. [Id. ¶ 21]. *2 Plaintiff's Complaint alleges that on April 4, 2016, the School District denied his February 2016 request for accommodation on the basis that the information Plaintiff had submitted was insufficient to establish that he was disabled within the meaning of the ADA. [Compl. ¶ 20; Doc. 39-1 at 11; Young Dep. at 36]. The School District informed Plaintiff, however, that it would consider further documentation of Plaintiff's alleged disability(ies) should Plaintiff decide to submit additional documentation. [Compl. ¶ 20]. Approximately three months later, Lance Young accepted a position in another school district, and his last day with the School District was July 8, 2016. [Young Dep. at 27]. Later that month, Dr. Pamela Gayles was promoted to Mr. Young's vacated position of executive director of Human Resources, reporting to Ronnie Wade, the School District's chief Human Resources officer, and Dr. Gayles became responsible for addressing ADA requests for accommodation within the School District. [Doc. 47, Deposition of Dr. Pamela Gayles (“Gayles Dep.”), at 8-9, 12, 19, 28; Doc. 46, Deposition of Ronnie Wade (“Wade Dep.”) at 8]. At some point after Plaintiff's request was denied, Plaintiff and/or his attorney became aware that despite the fact that Plaintiff had been diagnosed with Type 2 diabetes in 2008, his diabetes diagnosis had not been included or mentioned in the paperwork that Plaintiff had submitted to the School District in February 2016. [Doc. 39-1 at 1; Doc. 1-1 at 1 (EEOC charge)]. On August 12, 2016, Plaintiff's attorney wrote a letter to the School District's outside counsel, Marquetta Bryan. [Doc. 1-3 at 1, Brown's August 12, 2016 letter]. In the letter, Plaintiff's counsel stated that she had recently learned that Plaintiff has suffered with Type 2 diabetes since 2008, but that his diabetes diagnosis “was not included in the paperwork submitted to the school district last February.” [Id.]. The August 12, 2016 letter continued: The stress and anxiety referenced in the February forms have a negative impact upon his diabetes. (See Attached). Diabetes is clearly considered a disability within the meaning of the ADAA. “[I]t should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated:.... diabetes substantially limits endocrine function.” 29 C.F.R. 1630.2(j)(3)(iii). The school district should receive additional medical records concerning this matter shortly. Mr. Lakes requests that his disabilities be accommodated by a job transfer. Mr. Lakes has reviewed the open positions and there are numerous positions available for which he is qualified. Mr. Lakes is open to discussing the available positions, particularly positions that are outside the classroom as those types of positions would likely be the most effective in accommodating his disability. [Doc. 1-3 at 1-2]. Attached to the letter was an eight-page printout from a “Living with Diabetes” website discussing how stress affects diabetes and how to reduce stress. [Id. at 3-10]. On August 31, 2016, Plaintiff's counsel wrote another letter to Ms. Bryan correcting a date error in her previous letter and stating, “I understand that Mr. Lakes's doctor recently submitted to the school district the reasonable accommodation paperwork including Mr. Lakes's diabetes diagnosis.” [Doc. 39-1 at 11]. I will refer to the letters dated August 12, 2016 and August 31, 2016 from Plaintiff's counsel to Ms. Bryan as the “August 2016 Letters.” On or about September 2, 2016, Plaintiff spoke with Dr. Gayles concerning his request to be transferred to a different position as a reasonable accommodation. [Compl. ¶¶ 26-27; Gayles Dep. at 29, 39, 49-50]. At her deposition, Dr. Gayles testified that the documentation Plaintiff had submitted listed diagnoses, but it did not “necessarily list disability,” and Plaintiff was vague in his discussion with her. [Id. at 56]. According to Dr. Gayles, Plaintiff was “nonspecific about [the] challenges in his current position and current assignment” and what was limiting his ability to perform his job. [Id. at 51, 56]. She testified that Plaintiff spoke primarily about stress in his current job, but he provided little to no specific information about his current job that would help her determine whether there was an actual disability that was preventing him from doing that job. [Id. at 56-57, 60]. Dr. Gayles testified that based on Plaintiff's documentation and her conversation with Plaintiff, she determined that a transfer was not needed and would not be provided. [Id. at 50]. *3 During discovery, two issues arose. First, Lance Young, Dr. Gayles, and Ronnie Wade all testified that they were unaware of Plaintiff's diabetes diagnosis when the decisions were made to deny Plaintiff's requests for accommodation under the ADA. [Young Dep. at 38; Gayles Dep. at 43-44; Wade Dep. at 27]. Plaintiff's counsel found this concerning because she had personally sent the August 2016 Letters to Ms. Bryan, the School District's attorney, advising that Plaintiff suffered from diabetes. Second, Mr. Young testified during his deposition that he had consulted with Ms. Bryan in making his decision about whether to give Plaintiff an accommodation under the ADA. During Mr. Young's deposition, the attorneys had a disagreement over whether Mr. Young's communication with Ms. Bryan about Plaintiff's February 2016 request for accommodation was protected from disclosure by the attorney-client privilege. [See Young Dep. at 39-42]. I held a telephone conference with counsel for the parties to address these and other issues. [Doc. 35]. Plaintiff was not satisfied with the outcome of the telephone conference and was permitted to file a formal motion. [Doc. 37, Order]. On January 23, 2019, Plaintiff filed the instant motion to compel and to extend discovery [Doc. 42], which, as noted earlier, has now been fully briefed. II. ARGUMENTS RAISED IN THE BRIEFS Plaintiff argues that diabetes is specifically listed as a disability under the ADA as set forth in the Federal Code of Regulations at 29 C.F.R. § 1630.2(j)(3)(iii). Plaintiff contends that the August 2016 Letters informed both Ms. Bryan and the School District about Plaintiff's diabetes diagnosis. Plaintiff contends that Ms. Bryan's knowledge is imputed to the client,[3] the School District, and the School District decisionmakers are therefore charged with the knowledge that Plaintiff was diagnosed with diabetes.[4] Plaintiff seeks an extension of the discovery period in order to obtain evidence as to whether Ms. Bryan received the August 2016 Letters, and what, if any, factual information about Plaintiff's diabetes diagnosis Ms. Bryan may have conveyed to her client. According to Plaintiff, this would involve discovering potential communications between defense counsel and both Dr. Gayles and Mr. Wade.[5] [Doc. 38 at 4]. Plaintiff asserts that if Ms. Bryan is either unwilling or unable to confirm that she received Plaintiff's counsel's August 2016 Letters transmitted to her via U.S. Mail and email, then Plaintiff should be allowed to conduct a limited search of Ms. Bryan's computer to see if the emails remain on defense counsel's computer. [Doc. 38 at 5]. Plaintiff also moves to compel the deposition of Ms. Bryan for the limited purpose of inquiring as to whether Ms. Bryan disclosed Plaintiff's diagnosis to the School District's employees or, if defense counsel “were not that specific, of notice by counsel that Mr. Lakes was, in fact, an individual with a disability.” [Id. at 6]. *4 In a related request, Plaintiff asks that the School District be ordered to produce a privilege log showing whatever written or verbal communications have taken place between the School District and defense counsel about “the issue at hand,” which presumably refers to the August 2016 Letters. [Id. at 5]. In response, the School District takes issue with Plaintiff's characterization of the August 2016 Letters as notification to the School District that Plaintiff was diagnosed with diabetes. The School District points out that the letters did not contain or attach any updated accommodations paperwork completed by a qualified medical professional treating Plaintiff. Rather, the only information provided by Plaintiff's counsel to Defendant's counsel was Plaintiff's counsel's own statement that she realized Plaintiff's doctor had left a diagnosis of diabetes off the accommodations form that Lance Young had received and reviewed prior to his departure from the School District, and a generic informational printout regarding diabetes from the website of the American Diabetes Association. [Doc. 41 at 7]. According to the School District, such information amounts to nothing more than third party hearsay information, and even if it were forwarded to the School District, it would not have put the School District on notice either that Plaintiff actually suffered from diabetes or that Plaintiff suffered from a disability. [Doc. 41 at 3]. The School District argues that a hearsay statement of a diagnosis by Plaintiff's counsel accompanied by an internet printout do not constitute sufficiently reliable medical information and notification upon which an employer can determine whether an employee has a disability and/or whether the accommodation requested is reasonable. [Doc. 41 at 8]. The School District also points out that the August 12, 2016 letter unequivocally stated that, “The school district should receive additional medical records concerning this matter shortly.” [Doc. 39-1 at 1]. Therefore, it was not unreasonable to assume that Plaintiff was planning to provide medical evidence of his condition and that such evidence would be provided directly to the School District. It is not clear from the record whether such medical evidence or documentation was ever provided or what the proper method of providing such evidence might have been. The School District asks that Plaintiff's request to depose its lawyer or to take any additional discovery be denied, arguing that all communications between the School District decisionmakers and the School District's attorney regarding Plaintiff's accommodation request(s) are protected by the attorney-client privilege, and that Plaintiff has presented no legal or other entitlement to “bust [the] attorney client privilege wide open” to discover the discussions or communications, if any, between Lance Young (or the other witnesses) and defense counsel regarding the School District's evaluation and determination pertaining to Plaintiff's requests for accommodation. [Doc. 41 at 5]. III. ANALYSIS A. Whether Plaintiff is Entitled to Discovery Regarding Advice Given by the School District's Attorney to the School District's Employees “The attorney-client privilege protects confidential communications made by a client to his lawyer where legal advice of any kind is sought from a professional legal advisor in his capacity as such; it also protects statements made by the lawyer to the client in circumstances where those communications rest on confidential information obtained from the client or where those communications would reveal the substance of a confidential communication by the client.” Musa-Muaremi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312, 316 (N.D. Ill. 2010) (internal citations and quote marks omitted). “The attorney-client privilege [also] protects communications made in the course of an attorney's factual investigation when that investigation is made in order to provide legal advice.” Id. (citing Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 619-20 (7th Cir. 2010)). *5 To determine if a communication falls within the protection of the attorney-client privilege, courts routinely ask: (1) whether legal advice of any kind was sought from a professional legal adviser in his capacity as such; and (2) whether the communication was related to that purpose and made in confidence by the client. See Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 619-20 (7th Cir. 2010) (quoting United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (internal quote marks and punctuation omitted). Under the circumstances and facts presented in this case, there is little doubt that when Mr. Young contacted counsel for the School District to discuss Plaintiff's February 2016 request for accommodations under the ADA, he was seeking legal advice from the School District's legal adviser in her capacity as such, and that the communication was made related to that purpose. Nevertheless, Plaintiff argues that to the extent Mr. Young's communication with defense counsel falls within the protection of the attorney-client privilege, the School District has waived that privilege by asserting the good faith defense set forth in the School District's answer to Plaintiff's Complaint in its Eleventh Defense. [Doc. 38 at 6]. That defense reads as follows: Defendant has acted at all times in good faith and in a reasonable and prudent manner, exercising the degree of due and reasonable care required in carrying out any duties allegedly owed to Plaintiff and has been consistent with all applicable legal standards. [Doc. 4, Answer, at 3]. Plaintiff argues that the ADA includes a good faith defense provision at 42 U.S.C. § 1981a(3) that results in a waiver of the attorney-client privilege similar to what may happen when a defendant asserts a Faragher-Ellerth defense in a Title VII harassment context when the defendant's attorney participates in the investigation and preparation of the employer's report of the investigation upon which the employer intends to rely.[6] [Doc. 38 at 9, citing Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016 WL 890406 (E.D. La. Mar. 8, 2016) (collecting cases at n.53 concluding that where a defendant puts the adequacy of its pre-litigation investigation at issue by asserting the investigation as a defense, the party must turn over documents related to that investigation, even if they would ordinarily be privileged) and Musa-Muaremi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312 (N.D. Ill. 2010) (collecting cases at 317-19)]. Plaintiff asserts that the Eleventh Circuit's holding in Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994), is also instructive because the attorney-client privilege “was intended as a shield, not a sword.” Id. at 1418-19 (citations omitted). In other words, “[a] defendant may not use the privilege to prejudice his opponent's case or to disclose some selected communications for self-serving purposes.” Id. (citing United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)). *6 The Eleventh Circuit has observed that the attorney-client privilege may be waived where “the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party.” Cox, 17 F.3d at 1418 (quoting Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 447 (S.D. Fla. 1980)). “Courts have found waiver by implication in three sets of circumstances: (1) when a client testifies concerning portions of the attorney-client communication, (2) when a client places the attorney-client relationship directly at issue, and (3) when a client asserts reliance on an attorney's advice as an element of a claim or defense.” Id. (citation and internal quote marks and brackets omitted). Here, the circumstances do not justify finding a waiver of the attorney-client privilege. The only School District witness to testify that he spoke with counsel regarding Plaintiff's request for accommodation was Lance Young, and he did not testify regarding any portion of the attorney-client communication. He certainly did nothing to waive the privilege.[7] There is also no indication in the record that the School District has asserted reliance on its attorney's advice as an element of a claim or defense, that it has placed the attorney-client relationship directly at issue, or that Ms. Bryan assisted in any way with any “investigation” into Plaintiff's requests for a reasonable accommodation under the ADA, to the extent there was any investigation. The case law that Plaintiff cites is simply inapplicable here. The School District is not using the privilege as a sword, nor is it relying on any attorney investigation as the basis for the denial of any of Plaintiff's requests for an accommodation. For the reasons stated, I conclude that to the extent Mr. Young sought the advice of counsel in his role as decisionmaker with regard to Plaintiff's February 2016 request for accommodation under the ADA, any communications he had with the School District's attorneys are protected by the attorney-client privilege and have not been waived (either expressly, impliedly, or inadvertently). B. Whether Plaintiff is Entitled to Take Discovery From the School District's Attorney on the Issue of Notice I further conclude that Plaintiff is not entitled to take any additional discovery from Ms. Bryan or the School District.[8] To the extent Plaintiff seeks to assert that the School District was on either actual or constructive notice of Plaintiff's diabetes diagnosis, that is a legal argument that can be addressed later. If Plaintiff wishes to contend that the August 2016 Letters to the School District's attorney put the School District on notice that Plaintiff actually suffered from diabetes, Plaintiff may present his own evidence on that point in response to a motion for summary judgment and/or at trial. At that time, the parties may make arguments as to the legal effect, if any, of those letters. But I see no basis for allowing Plaintiff to explore defense counsel's emails or computer or to subject defense counsel to a deposition. How defense counsel chooses to communicate with her client is not a matter of concern for Plaintiff. C. Privilege Log I see no reason to deviate from standard practices regarding the preparation and exchange of privilege logs in this case. Both parties shall create a log of any documents that are responsive to any request for production that the party is withholding based on a claim of privilege or based on the work product doctrine. To the extent Plaintiff seeks to require anything additional from the School District, that request is denied. IV. NEXT STEPS *7 Discovery is now closed. The amended schedule for filing motions for summary judgment, responses, and replies is as follows: (1) Summary judgment motions, if any, are due thirty (30) days from the date of this order; (2) Responses are due twenty-one (21) days after the motion for summary judgment is filed; and (3) Replies are due fourteen (14) days after the response is filed. Attached hereto is an Order Modifying Local Rule 56.1 which changes the way the parties prepare their statements of material facts and shall govern any motions for summary judgment filed in this case. Additionally, the Scheduling Order I issued on April 13, 2018 also provides a number of specific instructions for summary judgment motions with regard to filing documents in searchable format, identifying exhibits, preferred citation format, providing complete electronic as well as a courtesy hardcopy of all deposition transcripts, and including all exhibits. [Doc. 10]. The parties must read and comply with all the requirements set forth in both the Scheduling Order and in the attached Order Modifying Local Rule 56.1. V. CONCLUSION For the reasons discussed above, Plaintiff's Motion to Compel and to Extend Discovery [Doc. 38] is DENIED. Motions for summary judgment, if any, are due thirty (30) days from the date of this Order. IT IS SO ORDERED, this 6th day of March, 2019. Footnotes [1] The facts in this section are chiefly taken from Plaintiff's complaint, its attached exhibits, and the deposition transcripts filed in this case. Unless otherwise stated, they do not constitute findings of fact. [2] Plaintiff testified that his students that year included some emotional and behavioral disorder (“EBD”) kids that were “very unruly,” they were not “open to following directions,” they were “constantly misbehaving and hindering other kids from learning,” and at least one was physically aggressive. [Lakes Dep. at 57, 59, 205]. [3] Defense counsel has not denied, and does not deny, that she received Plaintiff's counsel's letters. [Doc. 41 at 7-8]. [4] According to Plaintiff, because diabetes is a disability under the ADA, and the School District was on notice of Plaintiff's diabetes diagnosis, the decisionmakers were obligated to engage in the interactive process provided under the ADA to establish the need for and the nature of any accommodations that Plaintiff might require. [Doc. 38 at 3]. [5] Plaintiff seeks this information despite the fact that both Gayles and Wade testified that they did not consult with counsel in connection with Plaintiff's ADA requests. [Wade Dep. at 15-16, 39, 41; Gayles Dep. at 41-41]. Plaintiff acknowledges that any discussions Mr. Young might have had with defense counsel concerning Plaintiff's February 2016 request for accommodation would have taken place before Plaintiff's counsel sent the August 12, 2016 letter advising Ms. Bryan that Plaintiff suffered from diabetes. [Doc. 38 at 4 n.1]. [6] Title 42 U.S.C. Section 1981a(3) of the ADA provides as follows: In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 or regulations implementing section 791 of Title 29, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business. [7] I note that Mr. Young left employment with the School District before Plaintiff's counsel sent the August 2016 Letters. Moreover, Plaintiff concedes there is no evidence that Dr. Gayles ever spoke with the School District's lawyers or sought legal advice with regard to her assessment and ultimate denial of Plaintiff's request for accommodation. [8] I note that discovery in this case closed on December 21, 2018. [Doc. 28].