govinfo:USCOURTS-gand-1_24-cv-01002-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
 
Freda Smith, 
 
Plaintiff, 
 
v. 
 
City of Hapeville, 
 
Defendant. 
 
________________________________/ 
 
 
 
 
Case No. 1:24-cv-1002-MLB 
 
 
 
 
OPINION & ORDER 
 Plaintiff’s complaint asserts claims for “FMLA interference” 
(Count 1), “FMLA retaliation” (Count  2), ADA “disparate treatment” 
(Count 3), and ADA “retaliation” (C ount 4).  (Dkt. 1 at 8–11.)  The 
Magistrate Judge recommends gran ting Defendant’s motion for 
summary judgment on these claims be cause Plaintiff did not address or 
defend them in her response to Defe ndant’s motion.  (Dkt. 58 at 7–9.)  
No one objects to this well-support ed recommendation, so the Court 
adopts it.  See Thomas v. Arn , 474 U.S. 140, 150 (1985) (district court 
need not review unobjected- to portions of an R&R); Resol. Tr. Corp. v. 
Dunmar Corp., 43 F.3d 587, 599 (11th Cir.  1995) (“[G]rounds alleged in 
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the complaint but not relied upon in summary judgment are deemed 
abandoned.”).    
 That would normally be the end of the matter.  But, in her R&R 
objections, Plaintiff insists her comp laint also asserts an ADA claim for 
failure to accommodate her disability.  (Dkt. 60 at 6–8.)  She says this is 
so because, even though she does not mention the claim in the formal 
counts at the end of her complaint, her “factual alle gations expressly 
identif[y] Plaintiff’s disability, De fendant’s knowledge, a specific 
accommodation request, and Defend ant’s failure to engage in the 
accommodation process.”  (Dkt. 60 at  2, 8.)  The Magistrate Judge 
rejected this argument.  (Dkt. 58 at 9–14.)  So does the Court.   
Plaintiff’s complaint does allege—albeit only tersely—that Plaintiff 
had a disability, Defendant knew  about it, Plaintiff’s doctor 
“recommended to Defendant that Pl aintiff be placed on light-duty,” 
“Plaintiff was unable to return to work,” and “Defendant terminated 
Plaintiff’s employment.”  (Dkt. 1 ¶¶ 13, 24–25, 29, 39.)  But the complaint 
never “expressly” accuses Defendant of “fail[ing] to engage in the 
accommodation process.”  Plaintiff’s argument to the contrary doesn’t 
even cite to the complaint and inst ead relies on the parties’ summary 
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judgment evidence.  (See Dkt. 60 at 7.)  The complaint also refers to the 
doctor’s light-duty recommendation as an “accommodation” request only 
once, only in Plaintiff’s ADA retaliation claim, and, even then, only as the 
protected activity for which she was terminated.  (Dkt. 1 ¶¶ 44–45.)  That 
Plaintiff explicitly invokes the concept of an “accommodation” request to 
establish the protected activity requ ired for her retaliation claim—but 
otherwise says nothing about it—suggests she intended to use it only for 
that limited purpose.  That she lists four discrete counts at the end of her 
complaint—but not one for failure to accommodate a disability—suggests 
the same thing.   
To be sure, the complaint does assert ADA counts for “disparate 
treatment” and “retaliation.”  Bu t these are “different types of 
discrimination claims” than a failure-to-accommodate claim, both as pled 
in Plaintiff’s complaint and more generally as a matter of law.  Hausberg 
v. Wilkie , 2021 WL 4133739, at *2 (M.D. Fla. Sept. 10, 2021).  So, if 
anything, their inclusion in the compla int signals Plaintiff’s intent to go 
in a different direction than she is trying to go now.  See Quality of Life, 
Corp. v. City of Margate , 805 F. App’x 762, 767 (11th Cir. 2020) (ADA 
claims for “disparate treatment” an d “failure to provide a reasonable 
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accommodation” are “distinct grounds for relief”); Ford v. Marion Cnty. 
Sheriff’s Off. , 942 F.3d 839, 850 (7th Ci r. 2019) (ADA claims for 
“retaliation” and “denial of reasonable accommodation” require “proof of 
different factual circumstances under different legal tests” and “courts 
must treat them as distinct”); Murray v. Warren Pumps, LLC , 821 F.3d 
77, 83 (1st Cir. 2016) (“failure to  provide reasonable accommodations” 
and “retaliatory discharge” are “distinct theories of disability 
discrimination”); Green v. Nat’l Steel Corp., Midwest Div. , 197 F.3d 894, 
898 (7th Cir. 1999) (“a failure to a ccommodate claim is separate and 
distinct from a claim of discriminatory treatment under the ADA” and is 
“analyzed differently under the law”).1  
 
1 See also Tessa G. v. Becerra , 2024 WL 5700923, at *2 (N.D. Ga. Sept. 
18, 2024) (“Generally, a failure-to-accommodate claim under the ADA is 
a discrete claim that must be exhausted separately from a discrimination 
or retaliation claim.”); Jordan v. TJX, 2025 WL 790962, at *3 (S.D. Ala. 
Mar. 12, 2025) (“Because they are based on different theories of liability, 
claims under the ADA for disparate treatment disability discrimination 
and denial of reasonable accommodati o n  m u s t  b e  r a i s e d  i n  s e p a r a t e  
counts.”); Baker v. Hewlett Packard Enter. Co., 2019 WL 13154860, at *2 
(N.D. Fla. Feb. 20, 2019) (“[A] failu re to accommodate and disability 
discrimination are two separate claims.”).  The Court recognizes that 
Quality of Life and other unpublished cases cited herein are not binding.  
The Court cites them as instructive, nonetheless.  See Searcy v. R.J. 
Reynolds Tobacco Co. , 902 F.3d 1342, 1355 n.5 (11th Cir. 2018) 
(“Unpublished cases do not constitu te binding authority and may be 
relied on only to the extent they are persuasive.”).   
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As other courts have noted, where a complaint “contain[s] 
background allegations that [def endant] failed to accommodate 
[plaintiff’s] disability” but plaintiff does not “designate this claim as part 
of her . . . delineated causes of action ,” the allegations do not “afford the 
opposing party fair notice” of the claim.  Bell v. Shulkin, 709 F. App’x 167, 
169 (4th Cir. 2017); see Cacciamani v. Target Corp. , 622 F. App’x 800, 
804–05 (11th Cir. 2015) (complaint does not contain a claim if it does not 
put defendant “on notice” of the clai m).  Or, put another way, “passing 
references” to facts that might logically bear on a claim are not enough to 
assert that claim where the plaintiff commits to different causes of action 
in the formal counts at th e end of her complaint.  Winnie v. Infectious 
Disease Assocs., P.A., 750 F. App’x 954, 960 n.3 (11th Cir. 2018) (although 
plaintiff made “passing referenc es to an accommodation in her 
complaint,” she did not assert “an independent failure-to-accommodate 
claim” because “her ADA claim [was instead] premised on a 
discriminatory termination”).   
T h a t  i s  w h a t  w e  h a v e  h e r e .   Plaintiff may have pled a few 
accommodation-related facts.  But she never packaged those allegations 
as a discrete failure-to-accommodate claim, she did not include such a 
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claim in the counts at the end of her complaint, she asserted other claims 
in those counts, and she explicitly tied her accommodati on request to a 
theory of liability—one asserted in her formal counts—that is “distinct” 
from a “failure to accommodate claim.”  Sutherland v. Peterson’s Oil 
Serv., Inc., 126 F.4th 728, 741 (1st Cir. 2025 ) (a retaliation claim based 
on the theory that plaintiff wa s terminated for making an 
accommodation request, is “distinc t” from a “failure to accommodate 
claim”).  Under these circumstances, even assuming it were possible to 
cobble together a failure-to-accommoda te claim from a handful of the 
allegations scattered across Plainti ff’s complaint, Defendant was not 
required to connect those dots.  See Gilmour v. Gates, McDonald & Co. , 
382 F.3d 1312, 1315 (11th Cir. 2004) (d efendant need not “infer all 
possible claims that could arise out of  facts set forth in the complaint”); 
see also Monaghan v. Worldpay US, Inc. , 955 F.3d 855, 859 (11th Cir. 
2020) (complaint did not assert a retaliation claim under 42 U.S.C. § 1981 
even though it “mention ed retaliation in passing” as part of a “claim 
under 42 U.S.C. § 1981 for unlawful racial discrimination” and even 
though it “asserted a Titl e VII retaliation claim”); Boone v. City of 
McDonough, 571 F. App’x 746, 750 (11th Cir. 2014) (complaint did not 
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assert claims for harassment or hostile work environment even though it 
referenced racist/sexist comments in the workplace, an atmosphere of 
race/sex discrimination, plaintiff’ s internal complaints about these 
issues, and defendant’s failure to fo llow its harassment policy, and even 
though plaintiff did assert claims  for race/sex discrimination and 
retaliation in the counts at the end of her complaint).2   
Plaintiff did not assert a failu re-to-accommodate claim in her 
complaint, she cannot rely on that claim at summary judgment, she has 
abandoned her other claims, and Defendant is thus entitled to summary 
judgment.  The Court OVERRULES Plaintiff’s Objections (Dkt. 60), 
ADOPTS the Magistrate Judge’s Fina l Report and Recommendation 
(Dkt. 58) (except for section II.B.2 of the Report and Recommendation, 
 
2 The Court has reviewed the underlying complaints in Winnie, 
Monaghan, and Boone.  The Winnie complaint is particularly problematic 
for Plaintiff because it invoked a failure-to-accommodate theory far more 
explicitly than Plaintiff’s complaint does here.  See Winnie v. Infectious 
Disease Associates, P.A., 8:15-cv-2727-MSS-MAP (M.D. Fla. Oct. 5, 2016), 
ECF No. 22.  If its allegations were not enough to raise the theory there, 
Plaintiff’s allegations cannot be enough here.             
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which addresses an issue the Court need not decide), and GRANTS 
Defendant’s Motion for Summary Judgment (Dkt. 44).3            
SO ORDERED this 19th day of March, 2026. 
 
   
 
 
3 In section II.B.2 of the R&R, the Magistrate Judge found Plaintiff’s 
putative failure-to-accommodate claim is “barred as untimely.”  (Dkt. 58 
at 15–20.)  The Court need not reac h this issue because Defendant is 
entitled to summary judgment regardless.    
1 (1 1 (1 
MICH" KEL  L.  BROWN 
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