Larry Hooper v. Proctor Health Care Incorporat
Filing
Filed opinion of the court by Judge Ellis. AFFIRMED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and Sara L. Ellis, District Court Judge.* (*The Honorable Sara L. Ellis, of the United States District Court for the Northern District of Illinois, sitting by designation.) [6702840-1] [6702840] [14-2344]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2344
LARRY HOOPER, M.D.,
Plaintiff-Appellant,
v.
PROCTOR HEALTH CARE INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois, Peoria Division.
No. 12 C 1005 — James E. Shadid, Chief Judge.
____________________
ARGUED MAY 18, 2015 — DECIDED OCTOBER 26, 2015
____________________
Before KANNE and SYKES, Circuit Judges, and ELLIS, District Judge.*
ELLIS, District Judge. Proctor Health Care, Inc. (“Proctor”)
terminated Larry Hooper, M.D. in response to Hooper’s nonaction after he was cleared by a psychiatrist to return to
*The Honorable Sara L. Ellis, of the United States District Court for
the Northern District of Illinois, sitting by designation.
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work, repeatedly told that the psychiatrist had cleared him,
and warned that if he did not contact Proctor by a certain
date regarding his return to work, he would be fired. Hooper sued Proctor under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and the district court
granted summary judgment to Proctor, finding that Hooper
had not asserted a failure to accommodate claim in his complaint and that there was no genuine issue of fact on his disability discrimination claim. Hooper appeals, arguing that
the district court should have considered his failure to accommodate claim on the merits and that it ignored disputed
facts in the evidence on his discrimination claim. But Hooper’s complaint failed to mention any facts to put Proctor on
notice that he was pursuing a failure to accommodate claim,
which fails even when considered on the merits because
Hooper did not require accommodations. Additionally, the
district court properly granted summary judgment on the
disability discrimination claim regardless of the method under which the claim is examined, because Hooper failed to
create an issue of fact that would raise an inference of disability discrimination. Accordingly, we affirm.
I. BACKGROUND
Because this is an appeal of the district court’s summary
judgment decision, we summarize the facts in the light most
favorable to Hooper, who was the non-moving party, and
draw all reasonable inferences in his favor. Malin v. Hospira,
Inc., 762 F.3d 552, 554 (7th Cir. 2014).
Hooper, a family practice physician, received a diagnosis
of bipolar disorder in 2000. He must regularly see a psychologist to maintain his medical license in Illinois. In 2009,
Proctor hired Hooper to work in its First Care outpatient
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clinics in Peoria, which provide urgent and primary care to
walk-in patients and those with appointments.
On April 16, 2010, Hooper arranged to meet with Mandy
Carballido, Proctor’s Director of Human Resources. The
meeting was prompted by an incident Hooper had with a
neighbor about where he had parked his car, during which
Hooper made derogatory comments and yelled at the police.
Because he did not want a similar incident to occur at work,
Hooper thought he needed time off from work. In the meeting, Hooper revealed his bipolar disorder for the first time to
anyone at Proctor. According to Hooper, Carballido remarked in response that she had a contentious relationship
with her bipolar mother-in-law. Hooper inquired about
Proctor’s long term disability benefit, and the two discussed
the possibility of a medical leave of absence.
After meeting with Hooper, Carballido informed her supervisor, Linda Buck, Proctor’s Vice President of Human Resources, of the conversation. Carballido and Buck decided to
place Hooper on an immediate paid medical leave of absence and to help him apply for long term disability benefits.
Carballido immediately told Hooper of the decision. Hooper
determined he was not eligible for long term disability,
however, because his condition was a preexisting one.
On April 20, 2010, Hooper met with his psychiatrist, Dr.
Karen Kyle. She agreed that Hooper should be placed on
leave and wrote him a note to be off work for medical reasons. On May 14, 2010, Dr. Kyle determined that Hooper
could return to work and wrote him another note to that
end. But Proctor determined that Hooper should continue
on paid leave until an independent medical examination
confirmed Hooper was fit to return to work. Dr. James
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Cavanaugh, a psychiatrist at Rush University Medical Center, conducted that examination on August 2 and 3, 2010.
Hooper left the examination believing he would not be able
to return to work until Proctor received Dr. Cavanaugh’s report, which Hooper thought would take three or four weeks.
But on August 4, Dr. Cavanaugh orally informed Carballido
that Hooper could return to work, indicating that a written
report would be issued by August 19. Dr. Cavanaugh completed his report on August 18. Although Dr. Cavanaugh
found Hooper fit to return to work without any specific restrictions, he also suggested Proctor could make certain accommodations to decrease Hooper’s stress level and potentially improve Hooper’s performance in the workplace.
These included modifying Hooper’s work hours to include
more regular weekday hours so that Hooper did not feel as
isolated, allowing Hooper to establish continuous contact
with patients instead of only assigning him to walk-in patients, establishing regular evaluation sessions to provide
Hooper with feedback on his performance, allowing Hooper
to take sick days as medically indicated in a way that did not
make him feel ostracized, and ensuring that Hooper had a
supportive supervisor.
Upon receiving Dr. Cavanaugh’s oral report that Hooper
was fit to return to work, Diane Kurtz, Proctor First Care’s
administrative assistant, left Hooper two messages on August 4 or 5 indicating he should return to work the following
day. Kurtz left him an additional message and tried to leave
a fourth message but Hooper’s voicemail box was full by
that time. Proctor also tried contacting Hooper by phone the
week of August 9. Hooper did not respond or report for
work despite being in the Peoria area from August 4 through
13. Hooper’s mother died on August 12, and so Hooper
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traveled to Marquette, Michigan on August 13 to attend the
funeral and to her affairs, remaining there until August 18.
Hooper testified that he thought he left a message that his
mother had passed away and he was out of town attending
the funeral with Kurtz or Todd Baker, Proctor’s Executive
Director of Ambulatory Care Services, but he acknowledged
that he was not sure whether that call actually occurred.
Hooper did not introduce any concrete evidence to substantiate this call.
On August 16, Baker sent Hooper a letter stating that
Hooper had been cleared for work as of August 5, that human resources had been contacting him since then but had
not heard from him, and that his employment would be
terminated if he did not contact Proctor by the close of business on Friday, August 20. Because Proctor had not heard
from Hooper by August 20, Proctor terminated Hooper’s
employment on August 23, effective August 20, and sent
him a termination notice to that effect.
Despite having returned to Peoria on August 18, Hooper
only retrieved Baker’s August 16 letter on August 24. He
then tried to contact Baker and Kurtz. Kurtz passed Hooper’s message on to Proctor’s Human Resources Department.
On October 7, 2010, Hooper filed a request that his termination be reviewed. But that request was denied on October 12
because it was not made within seven days of his termination, as required by Proctor policy.
After filing an administrative charge alleging disability
discrimination and retaliation, Hooper filed suit against
Proctor in the Central District of Illinois. In his complaint,
Hooper claimed that the August 16, 2010 letter was pretext
to terminate his employment because he was a qualified in-
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dividual with a disability under 42 U.S.C. § 12111(8) and the
Illinois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. 5/1102. The district court granted summary judgment for Proctor, finding that Hooper’s disability discrimination claim
failed, that his IHRA claim was waived, and that he had not
asserted a failure to accommodate claim in his complaint.
Hooper does not challenge the decision with respect to the
IHRA claim.
II. ANALYSIS
We review a district court’s grant of summary judgment
de novo. Taylor-Novotny v. Health All. Med. Plans, Inc., 772 F.3d
478, 488 (7th Cir. 2014). Summary judgment is appropriate
when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
A. Failure to Accommodate Claim
In his complaint, Hooper generally alleged disability discrimination under the ADA. Then, in response to Proctor’s
motion for summary judgment, Hooper argued that Proctor
failed to reasonably accommodate his disability, citing 42
U.S.C. § 12112(b)(5)(A). He claimed that Proctor should have
discussed with him Dr. Cavanaugh’s suggestions of accommodations that would improve Hooper’s work environment
rather than terminating him. The district court found that
Hooper had not raised a failure to accommodate claim in his
complaint, having failed to cite to 42 U.S.C. § 12112(b)(5) or
allege any facts that would give rise to such a claim. The
court further stated that even if Proctor was required to
make the accommodations recommended by Dr.
Cavanaugh, Proctor could not because Hooper never report-
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ed to work after those recommendations were made. Thus,
regardless of whether Hooper waived the claim, the court
would have found for Proctor.
On appeal, Hooper argues that the district court erred in
finding the claim waived. He contends that the complaint
alleged that he was a qualified individual with a disability
and therefore included a failure to accommodate claim because the definition of a qualified individual is one who,
“with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds.” 42 U.S.C. § 12111(8) (emphasis added).
Although Hooper need not have pleaded legal theories in
his complaint, he was required to plead sufficient facts to
put Proctor on notice of his claim. Reeves ex rel. Reeves v. Jewel
Food Stores, Inc., 759 F.3d 698, 701 (7th Cir. 2014); Hatmaker v.
Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Hooper
generally pleaded a claim for ADA discrimination. Failure to
accommodate is a form of ADA discrimination. 42 U.S.C.
§ 12112(b)(5)(A); Reeves, 759 F.3d at 701. But nowhere in
Hooper’s complaint are there facts to put Proctor on notice
that Hooper was alleging failure to accommodate. Cf. Reeves,
759 F.3d at 701 (finding failure to accommodate claim was
not waived where plaintiff included facts in his complaint
that were relevant to a failure to accommodate claim).
Hooper’s complaint does not mention Dr. Cavanaugh’s suggested accommodations or any other purported need or request for accommodations. Without such allegations, Hooper’s mere invocation of ADA discrimination and the inclusion of the word “accommodation” in the cited definition of
qualified individual did not provide Proctor with adequate
notice. See Def. Sec. Co. v. First Mercury Ins. Co.,—F.3d—, 2015
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WL 5692516, at *6–7 (7th Cir. 2015) (noting that if plaintiff
“eventually needed to prove that publication occurred, it
should have pled sufficient facts to make that showing” in
the complaint); Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir.
2011) (Rules 8 and 10 are intended “to give defendants fair
notice of the claims against them and the grounds supporting the claims”).
But even a properly preserved failure to accommodate
claim would fail under the circumstances here. To establish
failure to accommodate, Hooper had to present evidence
that (1) he is a qualified individual with a disability, (2) Proctor was aware of his disability, and (3) Proctor failed to reasonably accommodate his disability. Reeves, 759 F.3d at 701.
Although a “qualified individual” is an individual who
“with or without reasonable accommodation, can perform
the essential functions of the employment position that such
individual holds or desires,” 42 U.S.C. § 12111(8), only those
individuals with “physical or mental limitations” who are
“otherwise qualified” for the job at issue are entitled to reasonable accommodations. 42 U.S.C. § 12112(b)(5)(A); Brumfield v. City of Chicago, 735 F.3d 619, 631–32 (7th Cir. 2013). A
plaintiff cannot state a failure to accommodate claim if “she
was able to perform all essential functions of her job without
regard to her physical or mental limitations.” Brumfield, 735
F.3d at 632. Thus, “an employer’s accommodation duty is
triggered only in situations where an individual who is qualified on paper requires an accommodation in order to be
able to perform the essential functions of the job.” Id.
Here, Dr. Cavanaugh cleared Hooper to return to work
without accommodations. See R330 (“Dr. Hooper is fit to return to full-time practice without any specific medical or
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psychiatric restrictions.”). Dr. Cavanaugh did recommend
certain accommodations that he thought could “result in Dr.
Hooper’s experiencing less stress in the workplace and an
even improved level of medical practice.” Id. But these recommendations cannot form the basis of a failure to accommodate claim because Dr. Cavanaugh specifically found that
Hooper was qualified for his position without accommodations. See Brumfield, 735 F.3d at 633 (“A disabled employee
who is capable of performing the essential functions of a job
in spite of her physical or mental limitations is qualified for
the job, and the ADA prevents the employer from discriminating against her on the basis of her irrelevant disability.
But since the employee’s limitations do not affect her ability
to perform those essential functions, the employer’s duty to
accommodate is not implicated.”). Hooper’s failure to accommodate claim thus would fail if considered on the merits.1
B. ADA Discrimination Claim
Under the ADA, Proctor was prohibited from discriminating against Hooper “on the basis of disability.” 42 U.S.C.
§ 12112(a). Hooper could proceed under either the direct or
indirect method of proof to establish his claim. TaylorNovotny, 772 F.3d at 489. Under the direct method, he must
show that (1) he is disabled within the meaning of the ADA,
1
Although the district court did not consider this alternative
ground, on appeal we can address any ground that was preserved and is
supported by the record. See Hester v. Ind. State Dep’t of Health, 726 F.3d
942, 946 (7th Cir. 2013). Proctor properly raised this argument in its reply
brief below, after Hooper argued for the first time in response to Proctor’s summary judgment motion that Proctor had failed to accommodate
his bipolar disorder.
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(2) he was qualified to perform the essential functions of the
job with or without accommodation, and (3) he was terminated because of his disability. Bunn v. Khoury Enters., Inc.,
753 F.3d 676, 683 (7th Cir. 2014). To establish the third prong,
Hooper must show that his disability was a “but for” cause
of his termination, Serwatka v. Rockwell Automation, Inc., 591
F.3d 957, 961–62 (7th Cir. 2010),2 which can be demonstrated
through direct or circumstantial evidence, with circumstantial evidence encompassing, among other things, suspicious
timing and pretext for the adverse employment action. Bunn,
753 F.3d at 684. Under the indirect method, Hooper must
first establish that (1) he is disabled within the meaning of
the ADA, (2) he was meeting Proctor’s legitimate expectations, (3) he suffered an adverse employment action, and (4)
Proctor treated similarly situated, non-disabled employees
more favorably. Id. at 685. If Hooper establishes a prima facie
case, Proctor must present evidence showing a legitimate,
nondiscriminatory reason for the employment action. Id.
Hooper must then present evidence showing that Proctor’s
stated reason is pretextual. Id.
Although we have recently questioned the continued
utility of the direct and indirect methods of proof in analyzing discrimination claims, we have continued to separately
consider them when reviewing the grant of summary judg2
We have not yet addressed whether the 2008 amendments to the
ADA, which changed the statutory language from prohibiting discrimination “because of” a disability to prohibiting discrimination “on the
basis of” a disability, affects the standard required to prove causation.
See Silk v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d
698, 705–06 (7th Cir. 2015). The question has not been presented in this
case, the answer would not affect the outcome, and so we decline to resolve the issue here.
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ment. See Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d
784, 789–90 (7th Cir. 2015). Nonetheless, the ultimate question under both methods, and that which is relevant here, is
“whether a reasonable jury could find prohibited discrimination.” Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840
(7th Cir. 2014).
Indeed, Hooper’s arguments do not neatly fit into either
the direct or indirect method here or before the district court.
Although he set forth the legal standard for each method in
his brief below, he never specified under which method he
was proceeding and instead generally argued that Proctor
sought a reason to fire him as soon as it learned of his bipolar disorder. The district court analyzed his claim under the
indirect method only. On appeal, Hooper does not directly
address why the district court’s decision in granting summary judgment based on his failure to meet the indirect
method of proof was wrong. Regardless of how Hooper’s
claim is analyzed, however, he has not established that a
reasonable juror could find that Proctor discriminated
against him on the basis of his disability.
Under the indirect method, Hooper presented no evidence of similarly situated individuals. Indeed, he does not
even mention this element of the prima facie case on appeal.
Lack of evidence on this element is sufficient to end the inquiry under the indirect method, as it is Hooper’s responsibility to identify and present evidence of a comparator at the
summary judgment stage. Bunn, 753 F.3d at 685; Chaib v. Indiana, 744 F.3d 974, 984 (7th Cir. 2014). But going further,
there is no issue of fact as to pretext. Proctor claims that
Hooper was terminated for not meeting legitimate job expectations because he did not return to work as instructed in
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August 2010. While Hooper attempts to create a dispute as
to when he was cleared to return to work, Hooper’s subjective understanding that he could not return to work until Dr.
Cavanaugh completed his written report is immaterial. The
record reflects that Dr. Cavanaugh informed Carballido that
Hooper could return to work on August 4, that Proctor decided to recall Hooper to work that day, and that Proctor repeatedly told Hooper to return to work beginning on August 4 or 5 even though the written report was not yet completed. Hooper ignored his employer’s directions at his own
peril, as the relevant question here is the employer’s—not
the employee’s—honest belief. See Hill v. Tangherlini, 724
F.3d 965, 968 (7th Cir. 2013) (“An inquiry into pretext requires that we evaluate the honesty of the employer’s explanation, rather than its validity or reasonableness[.]”).
Proctor undertook numerous efforts to notify Hooper
that he was cleared to return to work and, ultimately when it
did not hear from him, told him by letter that if he did not
contact Proctor by a certain date, it would terminate his employment. Hooper has not presented any evidence to undermine the fact that Proctor believed that Hooper could return to work on August 4 and that Hooper’s failure to return
to work or contact Proctor as directed justified termination.
See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 296 (7th Cir.
1998) (absenteeism is legitimate reason to terminate employee); Rush v. McDonald’s Corp., 966 F.2d 1104, 1115 (7th Cir.
1992) (employer has legitimate interest in employee’s attendance and reliability). Although Hooper asks us to speculate about the reasons for Proctor’s actions, we do not sit as a
“super personnel department” with the ability to do so.
Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir. 2002) (citation omitted); see also Widmar v. Sun Chem. Corp., 772 F.3d
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457, 465 (7th Cir. 2014) (employee failed to show pretext
where he only offered speculation instead of identifying inconsistencies in employer’s reasons for termination). With
only Hooper’s speculation, we cannot find sufficient evidence to create a question of fact as to whether Proctor’s
proffered reason for Hooper’s termination was pretextual.
Alternatively, to the extent Hooper’s claim could be considered under the direct method, it fails under that analysis
as well. Hooper argues that Proctor was biased against him
because of his bipolar disorder, as evidenced by Carballido’s
remark in April 2010 that she had a contentious relationship
with her bipolar mother-in-law and the fact that his personnel file grew after he met with Carballido. He argues that
this bias caused Proctor to seek a reason to discharge him in
August 2010 and make Proctor unwilling to work with him
when he inquired about his work status on August 24.
But Carballido’s comment was a stray remark and is insufficient to support a discrimination claim. See Fleishman v.
Cont’l Cas. Co., 698 F.3d 598, 605 (7th Cir. 2012) (“[I]solated
comments are not probative of discrimination unless they
are ‘contemporaneous with the discharge or causally related
to the discharge decision-making process.’” (quoting Gleason
v. Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997))). The
comment was made four months before the termination decision, and Hooper has not pointed to a causal connection
between it and his termination. See Markel v. Bd. of Regents of
Univ. of Wis. Sys., 276 F.3d 906, 910 (7th Cir. 2002) (comments
made two months before termination decision were not contemporaneous to adverse action). The fact that Hooper’s personnel file may have increased in size after he disclosed his
bipolar disorder, which coincides with the decision to place
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him on paid medical leave and the paperwork that would
have accompanied that action, does little, as Hooper has not
provided us with any information about the actual contents
of the file. Any inferences Hooper asks us to draw based on
the size of his personnel file are based on speculation and
thus insufficient to withstand summary judgment. See Herzog v. Graphic Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir.
2014) (“[I]nferences that are supported by only speculation
or conjecture will not defeat a summary judgment motion.”
(citation omitted)). And as already discussed, Hooper has no
evidence of pretext.
Further, Hooper has failed to show any type of connection between any alleged discriminatory animus by Proctor
and the termination decision. See Good v. Univ. of Chicago
Med. Ctr., 673 F.3d 670, 676 (7th Cir. 2012) (the direct method
of proof “requires evidence leading directly to the conclusion
that an employer was illegally motivated, without reliance
on speculation”). If anything, the evidence shows that Proctor acted quickly to bring Hooper back to work once it
learned his bipolar disorder did not pose any harm to Hooper, Proctor staff, or patients, and only terminated him when
he failed to return to work after numerous efforts to contact
him. This does not suggest discriminatory motive.
Ultimately, because no reasonable juror could find prohibited discrimination under any circumstances in the record, we conclude that the district court properly granted
summary judgment for Proctor on Hooper’s ADA discrimination claim.
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III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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