Wirey v. Richland Community College
Filing
40
OPINION entered by Judge Michael P. McCuskey on 12/21/12. IT IS THEREFORE ORDERED THAT: (1) Defendant's Motion for Summary Judgment 35 is GRANTED. (2) This case is terminated. See written Opinion. (VB, ilcd)
E-FILED
Friday, 21 December, 2012 04:55:25 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
JOANN WIREY,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
RICHLAND COMMUNITY COLLEGE,
Defendant.
Case No. 1O-CV-02216
OPINION
FILED
DEC 21 2012
~,LERK lif. Tl!E ">lIIJrt
CENTlIfi~gl~t~\~I&~lkLi"OI$
This is an employment discrimination case. Plaintiff claims that after she sought to not
work overtime due to her chronic fatigue syndrome, Defendant first discriminated against her
due to her health condition, and then eventually terminated her employment, in contravention of
thc Family Medical Leave Act and the Americans with Disabilities Act.
The case is before the court on Defendant's Motion for Summary Judgment (#35). This
court has carefully reviewed the briefs and exhibits submitted. Following this review,
Defendant's motion is GRANTED.
JURISDICTION
This court has federal question jurisdiction, 28 U.SC. § 1331, pursuant to the Family
Medical Leave Act of 1993 CFMLA"), 28 U.SC. § 2601, et seq., and the Americans with
Disabilities Act, ("ADA"), 42 U.S.c. § 12101, et seq.
BACKGROUND
- 1-
Plaintiff Joann Wirey was formerly employed by Defendant, Richland Community
College. She was first employed as a records clerk in 1995, and then after a series of
advancements, was promoted to the position of Registrar and Director of Registration and
Admissions in 2004. As Registrar, Plaintitlwas the head of the otllce responsible for processing
student applications, maintaining accurate class and grade records, verifying student residency,
and serving as the primary point of contact for students in obtaining class schedules, registering
for courses, dropping and adding classes, and obtaining grades, transcripts, and diplomas. In
2004, Cheryl Blahnick was Plaintiffs direct supervisor. Blahnick reported to Jane Johnson, the
vice president of Student and Academic Services. In 2007, Marcus Brown became the Dean of
Enrollment Services of the College, thereby making him Plaintiffs direct superior. Before 2007,
John Bell was the Director of Human Resources. Bell was replaced by Richard Gschwend as
Director in 2007.
A. Previous medical condition
Plaintiff claims she was diagnosed with mononucleosis in January, 2007 and was
intermittently unable to return to work through May, 2007, but provides no supporting evidence
for that assertion. In July, 2007, Plaintiff's physician provided a letter indicating that PlaintiU
was "being treated for ongoing medical problems and during the course of her treatment she may
experience periodic unpredictable work absences related to her illness." (#38, Exh. 2,
WIREY00602). Although no documentation provided indicates that Plaintiff's condition was
chronic fatigue syndrome (CFS), she attests to that fact in her deposition (#38, Wircy Dep. 27)
and Defendant does not dispute it (#39 '!!'!! 20, 21).
-2-
Regarding who was on notice of Plaintiffs condition, Plaintiff notified Bell, the thcnDirector of Human Resources, in 2007, that she might have to miss work from time to time and
they discussed the FMLA. On August 1, 2007, Bell sent Plaintiff a memo indicating that her
"condition qualifies as a personal serious medical condition as defined by the FMLA," and that
she was required to "note on [her] Request for Time Off form 'FMLA time' in addition to
checking the 'vacation', 'sick time' or 'personal' time box." (#38, Exh. 3, WIREY00563). On
Plaintiffs physician's letter, there are two names handwritten: S. Blahnik and J. Johnson,
although neither has the letter been authenticated nor is there any direct, non-hearsay evidence
showing that those two individuals did in fact receive or were otherwise on notice of the contents
of the letter. Plaintiff also avers that she notified Deborah McGee, the "HR person," that she had
CFS, as a general matter, but also that she never informed McGee that she was taking leave for a
specific occasion. McGee's affidavit specifically states that she has no personal knowledge of
any disability or medical condition affecting Plaintiff. (#36, Exh. G ~113).
Furthermore, Brown and Gschwend provided affidavits averring that they had not been
aware of the precise nature of Plaintiff s disability until they reviewed the allegations in her
Complaint filed in the present matter (#36 11 80). Plaintiff does not dispute that assertion.
However, Gschwend was aware that Plaintiffs condition limited her to "not work[ing]
weekends" (#36, Exh. H 67-68). In addition, Johnson admits that while she did not know the
nature of Plaintiffs condition or that she had a qualificd disability (#36, Exh. 0 1r 24), she did
know in 2007 that Plaintiff had "some problem" regarding her health (#38, Johnson Dep. 32).
Plaintiff admits that although she was diagnosed with CFS, she was not, at any relevant
time, taking medication for it (#36, Wirey Dcp. 23). Further, she admits that her condition was
not so severe as to interfere with her work. Plaintiff states that she rarely missed work or left
-3-
early due to the condition (#36, Wirey Oep. 24), and that when she did miss work, she madc up
the time later (#36, Wirey Oep. 28). Finally, Plaintiff admits that she never requested officiallydesignated FMLA leave for her CFS (#36, Wirey Oep. 29).
B. Alleged precipitating event
In the beginning of every semester, the Officc of Admissions would be open for certain
evenings and Saturdays in order to better service the students who could not visit during the
week. Plaintiff worked on some of those evenings, but declined to work on the Saturdays,
purportedly because of her medical condition. On July 30, 2009, Brown wrote Plaintiff an email
stating, "Is it your intention to be the only staff person in the division not working on one of the
Saturdays?" Plaintiff replied that she was making a presentation to the adjunct faculty on August
8, 2009, and further noted that she "do[ es] not like to sign up for extra because of [her] health."
In response, Brown stated that he "cxpcct[s] all staff, particularly directors, to assist with the
Saturdays we are open and this expectation extends to you. Anything short of meeting this
expectation will be considered insubordination."
On August 5, 2009, Plaintiff received a note from her physician indicating that she was
being treated for a health issue, and that she had been instructed not to overextend herself by
working weekends or long days. That note was purportedly sent via a chain of emails to Brown,
Gschwend, and Johnson. (#38, Exh. 10). However, strangely, neither Plaintiff nor Defendant will
admit to the authenticity of that note or acknowledge that any individual on the chain had seen it.
(#36, Exh. B, Wirey Oep. 62; #39 '140). Furthermore, Plaintiff does not contest Defendant's
statement offact that Johnson, Brown, and Gschwend were unaware of Plaintiffs condition,
including CFS, until they reviewed the complaint in the present litigation. (#36
-4-
~
80; #38 p.2).
Following this notice, Plaintiff did not sign up for any Saturday shifts, PlaintitTwas not officially
disciplined for not taking any Saturday shifts,
C. Proffered performance issues and termination
On October 14,2009, Gschwend sent Plaintiff a letter terminating her employment.
There were three separate incidents that Defendant cited to justify Plaintiffs termination, First,
on August 8, 2009, Plaintiff gave a presentation to incoming adjunct faculty on the College's
admission process, During the presentation, Plaintiff explained that the College had a policy of
requiring a sponsor letter attesting to the fact that the student had the funds to matriculate and
that they knew the student. According to Jane Johnson, one new faculty member, Kevin Collins,
complained that Plaintiff had said that the letters were required in response to the 9il I disaster.
The Adjunct Faculty Coordinator received an email from Collins indicating that he felt that the
comment was offensive and inappropriate, I
Second, during the second week of August 2009, an unidentified Richland employee
complained to the Office of the President that Plaintiff had taken an inappropriate photograph
In her tilings, Plaintiff seeks to muddy the waters with vague allegations of some kind of conspiracy
against her. Plaintiff merely alleges that Brown is Collins's domestic partner and that Brown is the son of
a close friend of Johnson, but provides neither argument nor evidence that these relationships somehow
have been leveraged to effectuate termination, Similarly, during her adverse deposition, when shown an
email acquired during discovery that she herseifpurportedly wrote and sent, the following colloquy
ensued:
I
Q [Defendant]: You've been handed Exhibit 10, This appears to be a string of E-mails, but let
me direct you to the bottom of page one, Does this appear to be an E-mail that you sent to
Marcus Brown on August 7, 2009'1
A [Plaintiff]: I don't know, This looks like it's typed on a piece of paper. I don't know if it's
an E-mail or not.
Q: Do you have any reason to doubt the authenticity of this E-mail?
A: I have reason to doubt every document you present that [ do not have a copy of
Q: And why is that?
A: Because certain people at Richland Community College do unethical and illegal things,
(#36, Wirey Dep, 62),
-5-
with a student. That photo shows Plaintiff standing with a male student. The student is to
Plaintiffs left and has his right arm around her shoulder, with his left arm akimbo. He is smiling
and looking upward. She has her left arm in a position that appears to be on his back or waist.
She is also smiling. Her right hand is holding onto the hem on the right side of his T-shirt and
pulling it away from his body, the tension thereby causing the shirt to be lifted from his body,
thus exposing several inches of his bare stomach, and exposing less than an inch of his
underwear above the top hem of his pants. The photo was taken in July 2009 at the request of the
student, but Plaintiff admits that the student did not specifically ask that she manipulate his shirt.
On August 12,2009, Brown had a meeting with Plaintiff. On August 20, 2009, Brown
issued Plaintiff a verbal warning over those two incidents. He also issued a disciplinary action
report to Plaintiff, which indicated that "future performance issues of any nature will result in a
disciplinary reprimand, suspension, andlor possible termination of employment." Plaintiff
refused to sign the report.
There was a third incident after the report, but Defendant indicates that while Plaintiff
was suspended with pay during the investigation, it did not contribute to Plaintifl's termination.
In September 2009, Johnson received a complaint from a parent of a College student who
complained that Plaintiff had been rude to her. The parent alleged that she had requested to view
her student-son's grades and to talk to his professors, pursuant to a written FERPA release that
the student had supposedly completed, but Plaintiff refused to give the parent access, noting that
the student had either not completed the release or had subsequently revoked the release.
Gschwend initiated an investigation and placed Plaintiff on administrative leave with pay
pending the resolution of the complaint. The report resulting from the investigation indicated that
there was no evidence that Plaintiff had coerced the student into denying his parent access to his
-6-
records, and that the findings as to whether Plaintiff had been rude to the parent were
inconclusive, given that the only evidence was two highly conflicting testimonies and no other
record. Defendant admits that this incident did not factor into the decision to terminate Plaintiff
(#39
~
65).
Last, while Plaintiff was on administrative leave, a faculty member alleged that Plaintiff
might have incorrectly changed a grade for the student with whom she had taken the
inappropriate photograph. Johnson investigated the incident and found no supporting
documentation for two of the student's grade changes, in contravention of standard operating
policy. However, when she contacted the professors in those two classes, one professor
confirmed that he had made the change, and the other indicated that he "vaguely remember[ cd)"
that he had made the change. However, by this time, Johnson had already initiated a global
investigation of all the grade changes performcd by Plaintiff s office during the preceding two
years. Johnson found that betwecn 2007 and 2009, Plaintiff had personally made changes to
grades for eight students for which documcntation could not be fonnd, while the combined office
staff had made changes to grades for 22 stndents for which documentation could not be found.
Brown and Gschwend became concerned about the integrity of the Office's recordkeeping, and offered Plaintiff a Final Job Warning and Employee Action Plan Agreement.
Among other conditions, the terms of the agreement included the following clauses:
4. As a condition of continued employment, [Plaintiff] will be responsible for
the following outcomes.
[* * *]
e. [... ] Any actions or communications taken to undermine the operating
effectiveness of the Dean will be grounds for immediate dismissal, as
will Failure to Follow Supervisory Instructions and Insubordination.
-7-
f. Similarly, future dealings with Student Records stat1~ students,
commw1ity members, and other College representatives must be handled
in a constructive, positive, and professional manner. Disruptive behavior
will not be tolerated, and will be ground [sic] for dismissal.
6. [Plaintiff] agrees not to contest this disciplinary action and, further, that the
discipline [sic] action taken on August 20 is also to be considered final.
[Plaintiff] understands that this agreement is in lieu of termination of
employment and fully resolves and all related issues.
(#38, Exh. 24). When Plaintiff did not agree to the terms of the Employee Action Plan
Agreement, Gschwend terminated her employment on October 14, 2009.
D. Procedural history
On September 10,2010, Plaintiff filed her complaint in this case. Discovery began on
February 3, 2011. Several motions for extension of time to complete discovery were granted. On
March 20, 2012, Defendant filed the present Motion for Summary Judgment. On April 23, 2012,
Plaintiff filed her Response with exhibits, and on May 7, 2012, Defendant filed its Reply. In her
Response, Plaintiff does not substantially dispute any of the facts proffered in Defendant's
statement of facts. On June 12,2012, this court vacated the dates for the final pretrial
conference' and the jury trial dates.
ANALYSIS
Summary judgment is proper "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for
summary judgment, a district court has one task and one task only:
(0
decide, based upon the
evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v.
-8-
Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court
must construe the evidence in the light most favorable to the nomnoving party and draw all
reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S.C!. 2505, 91 L.Ed.2d 202 (1986); Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir.
2010). In her complaint, Plaintiff claims that Defendant violated the FMLA (Count J) and the
ADA (Count II). We begin by addressing the lengthier analysis, the ADA claim.
I. ADA claim
Although there are two types of ADA claims, discrimination on the basis of a disability,
42 U.S.C. § 12112, and a failure to accommodate, 42 U.S.C. § 12112(b)(5)(A), Plaintiffs
Complaint does not clearly set out which of the two (or both) that she seeks to pursue. "It is
important for plaintiffs to be clear about whether they are pressing disparate treatment or failureto-accommodate claims (or both) because the two are analyzed differently." Timmons v. Gel1.
Motors Corp., 469 F.3d 1122,1125 (7th Cir. 2006). This court concludes that Plaintiff pursues a
discrimination claim, given that she alleges that Defendant treated non-disabled employees
differently for substantially similar actions, and does not allege that Defendant failed to provide
any reasonable accommodations that she requested (#1
~~
68-72).
"[AJ plaintiff may prove discrimination in violation of the ADA using one of two
methods. Under the direct method, the plaintiff may show either direct or circumstantial
evidence that points to a conclusion that the employer acted as it did for illegal reasons."
Timmons v. Gel1. Motors Corp., 469 F.3d 1122, 1126 (7th Cir. 2(06). Plaintiff neither argues nor
has provided any direct evidence, and therefore, cannot sustain her case under the direct method.
-9-
A. Prima facie case
The alternative way to prove discrimination is the familiar burden-shifting McDonnell
Douglas indirect method.
Under the McDonnell Douglas framework, the plaintiff bears the initial
burden of establishing a prima facie case of intentional discrimination. Once
the plaintiff establishes a prima facie case, a legal, rebuttable presumption of
discrimination arises, and a burden of production then shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the employment action.
If the employer satisfies that burden, the presumption of discrimination
extinguishes, and the burden shifts back to the plaintiff to persuade the trier of
fact either directly that a discriminatory reason more likely motivated the
action or indirectly that the employer's articulated reason for the employment
action is unworthy of credence, but a mere pretext for intentional
discrimination.
Nawrot v. CPC Int 'I, 277 F.3d 896, 905 (7th Cir. 2002) (citations and editing marks omitted). To
establish a prima[acie case of disability discrimination under the ADA in the employment
context, a plaintiff must prove that I) she is disabled within the meaning of the ADA, 2) she is
qualified to perform the essential functions of the job, either with or without a reasonable
accommodation, and 3) she suffered from an adverse employment action because of her
disability. Hoppe v. Lewis Univ., 692 FJd 833, 838-39 (7th Cir. 2012).
1. Disability
Regarding the first element, the ADA requires that the term "disability" means: a) a
physical or mental impairment that substantially limits one or more major life activities of such
individual; b) a record of such an impairment; or c) being regarded as having such an
impairment. 42 U.S.c. § 12102. Notably, the ADA was amended in 2008 to make the standard
for qualifying as disabled more inclusive. ADA Amendments Act 01'2008 ("ADAAA"), Pub. L.
No. 110-325, 122 Stat. 3553, effective January 1, 2009. In 2008, Congress found that the
- 10-
Supreme Court had improperly narrowed the protection intended to be afforded under the ADA,
and enacted the ADAAA to abrogate the holdings in Sulton v, United Air Lines, Inc" 527 U,S,
471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v, Williams, 534 U,S. 184 (2002).
This court recognizes that, following the 2008 amendments to the ADA, the term "substantially
limits" is to be construed broadly in favor of expansive coverage. See 29 C.F.R. § 1630.2U)(1)(i).
Because the events in this case occurred after January 1,2009, the amendments apply.
Applying the three-step process discussed in Bragdon v, Abbott, 524 U ,So 624,631
(1998), this court finds that, for the purpose of the present Motion for Summary Judgment,
Plaintiff qualifies as having a disability under the first prong, which is to say that she has "a
physical or mental impairment that substantially limits one or more major life activities of such
individual." First, CFS may, categorically, qualify as a disability under Bragdon because it
produces physical and mental impairments. See, e.g., Weixel v. Ed. ofEduc, of City ofNew York,
287 FJd 138, 147 (2d Cir. 2002); E.E.OC v. Chevron Phillips Chern. Co., LJ', 570 FJd 606,
615 (5th Cir. 2009). The only evidence that Plaintiff produced that she was even diagnosed with
CFS is in her own testimony during her adverse deposition. (#36, Exh. B, 22:6-8; 24:5-6; 33:49). Plaintiff has provided this court with no medical records or even a note from her physician
with that diagnosis. At best, her physician's notes merely indicate that she was "being treated for
a health issue" (#38, Exh. 10) or for "ongoing medical problems" (#38, Exh. 2). However,
because this court must construe the evidence in the light most favorable to PlaintifI and draw all
reasonable inferences in her favor, and because Defendant does not in fact deny that Plaintiff has
CFS, this court concludes, for the purpose of this motion, that Plaintiff may be treated as having
CFS.
Second, the life activities that Plaintiff has identified are those of working, thinking, and
- 11 -
concentrating. These constitute acceptable life activities for the ADA. 42 U.S.c. § 12102(2)(A).
Third and last, the "determination of whether an impairment substantially limits a major
life activity requires an individualized assessment." 29 C.F.R. § 1630.20)(I)(iv). An impairment
is a disability within the meaning of the ADA "if it substantially limits the ability of an
individual to perform a major life activity as compared to most people in the general population."
29 C.F.R. § 1630.20)(1 )(ii). "[l]n making this assessment, the term 'substantially limits' shall be
interpreted and applied to require a degree of functional limitation that is lower than the standard
for "substantially limits" applied prior to the ADAAA." 29 C.F.R. § 1630.20)(1 )(iv).
The individualized analysis requires Plaintiff to show that she was in fact affected by the
condition to the degree that a major life activity was substantially limited. See Schneiker v. Fortis
Ins. Co., 200 FJd 1055, 1061 (7th Cir. 2000)
Cit is not enough, however, for
[Plaintift1 to
demonstrate that she suffers from depression. To get past summary judgment, she must also
demonstrate in the record that her depression substantially limits her ability to perform a major
life activity. In every case our inquiry is individualized.") (emphasis in original).
Here, Plaintiff demonstrates that her condition substantially limits two major life
activities. First, she states that "My mom had to come down to let out my dogs, feed my dogs.
She'd bring in my mail. I wouldn't do laundry. I might get up just to take a bite of something and
then I'd be back down." (#36, Exh. B, 22:21-23:1). Second, she states that her chronic fatigue
interfered with her ability to remain awake and alert, and it "knocked [her lout" so she couldn't
concentrate. (#38, Wirey Dep. 270-271). Defendant argues that Plaintiffs alleged CFS could not
possibly have limited her major life activity of working, since a) PlaintilTnever took officially
sanction FMLA leave during her bouts of fatigue; and b) rarely missed work or left early because
ofCFS. Defendant also cites to Durley v. APAC. Inc., 236 F.3d 651,657 (11th Cir. 2(00) in
- 12 -
support of this proposition. In Durley, the Eleventh Circuit upheld the district court's finding that
because the plaintiff there testified that she "was able to perform the job ... [and] the work got
done always," that she was not disabled within the meaning of the statute. This court disagrees.
First, Durley was decided before the passage of the ADAAA, which specifically mandates that
the definition of disability shall be broadened. Second, requiring an individual with a physical or
mental impairment to miss work or leave early in order to qualify for a disability would
encourage that individual to be absent from work in order to demonstrate that they suffered from
a disability. This is an absurd result, and accordingly, no credit may be given to Defendant's
argument. Thus, because this court must construe the evidence in the light most favorable to
Plaintiff and draw all reasonable inferences in her favor, this opinion proceeds, for the purpose of
the present Motion for Summary Judgment, by presuming that Plaintiffs CFS constitutes a
disability that substantially limited the major life activities of thinking and concentrating. (#39
~'i
20-21). As Plaintiff qualifies as being disabled under the first prong, any analysis under the
second or third prongs, which are a record of such an impaim1ent or being regarded as having
such an impairment, is unnecessary.
B. Qualified to perform essential functions
The second element of the primafacie case is that the plaintiff was qualified to perform
the essential functions of her job, either with or without a reasonable accommodation. Hoppe v.
Lewis Univ., 692 F.3d 833, 838-39 (7th Cir. 2012). This requires that the individual be qualified
for the position. 42 U.S.C. § 12112(a); Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 862
(7th Cir. 2005). To determine whether a person is a "qualified individual" under the ADA, courts
undertake a two-part inquiry and consider whether, at the time of the termination decision, the
- 13 -
employee: I) satisfied the employer's legitimate selection criterion for the job; and 2) was
capable of performing the job's "essential functions" with or without reasonable accommodation
from an employer. Hammel, 407 F.3d at 862. Plaintiff adequately perfol1ned her job at the
College for fifteen years, at least five of which were in her final position as the Director and
Registrar. This only goes to the first part of the inquiry; that is, it demonstrates that she had the
requisite skills, education, and experience to complete the requirements of the job. Second,
Plaintiff may be arguing that she was terminated because she refused to work several Saturdays
out of every semester (although it is not clear as her Response simply does not address the ADA
issue, and instead makes vague accusations about improper timing under the FMLA). In
Defendant's favor, courts have acknowledged that, in general, "attendance is a requirement of a
job," and that the "Act does not protect people ... from being fired because of illness." Waggoner
v. Olin Corp., 169 F.3d 481,483-84 (7th Cir. 1999). On the other hand, Defendant has made it
clear that it was College policy to provide student services for several Saturdays at the beginning
of each semester, and that it was necessary and essential that the offices were open for those
several days. This element further requires that a reasonable accommodation must be made to the
individual ifit enables her to perform the job. 42 U.S.C. § 12111(8); Waggoner v. Olin Corp.,
169 F.3d 481 , 484 (7th Cif. 1999). The burden is on the plaintiff to show that she can meet these
requirements. Waggoner, 169 F.3d at 484. Neither party has suggested that Plaintiff sought a
reasonable accommodation, much less proposed that Defendant denied such a request. But a
hypothetical resolution would not have been inconceivable wherein Plaintiff takes off a Friday in
order to work the following Saturday, given Plaintiffs o\\'n testimony that Defendant found it
acceptable for her to occasionally take several hours otT in the middle of the day to rest as long
as she made them up later in the evening. Therefore, because this court must construe the
- 14 -
evidence in the light most favorable to Plaintiff and draw all reasonable inferences in her favor,
because the evidence suggests that she was qualified at the time her employment was terminated,
and that it is unclear whether any reasonable accommodations were requested or given, this
opinion proceeds, for the purpose of the present Motion for Summary Judgment, by presuming
that Plaintiff was qualified to perform the essential functions of her position.
C. Adverse employment action because of disability
Finally, Plaintiff must show that she suffered from an adverse employment action
because of her disability. Hoppe v. Lewis Univ, 692 FJd 833, 838-39 (7th Cir. 2012). Plaintiffs
employment at the College was terminated, so the requirement of an adverse employment event
was fulfilled. However, as the action must have occurred because of the disability, or as the
statute and regulation reads, "on the basis of disability", 42 U.S.C. § 12112(a); 29 C.F.R. §
1630.4(a)(l), there is an additional requirement that the employer must have knowledge of the
employee's disability before it engaged in the adverse employment action. As the Seventh
Circuit has opined:
We think that an employer cannot be liable under the ADA for firing an
employee when it indisputably had no knowledge of the disability. This is
supported both by simple logic and by the conclusions of other courts that
have considered analogous issues.
At the most basic level, it is intuitively clear when viewing the ADA's
language in a straightforward manner that an employer cannot tire an
employee "because of' a disability unless it knows of the disability. Ifit does
not know of the disability, the employer is tiring the employee "because of'
some other reason.
Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995). Defendant argues that it
could not have possibly discriminated against her on the basis of her disability because 110 one at
the College who was responsible for the termination had knowledge that Plaintiff had a
- 15 -
disability. Certainly, Johnson, Brown, and Gschwend asseverate that they were not aware that
Plaintiff suffered from a medical condition, much less CFS or any other illness protected by the
ADA. (#36
~
80). Brown was the Dean of Enrollment Services; in that role, he was Plaintiffs
direct supervisor at the time. (#36, Exh. E., Brown Aff.
'11), Johnson was the Vice President of
Student and Academic Services (#36, Exh, D, Jolmson Aff.,
~
I), and as such, was Brown's
direct supervisor. (#39, Johnson Dep. 12:11-18), Gschwend was the Assistant Director of Human
Resources, and the person evaluating and ultimately signing off on Plaintiffs termination. (#36,
Exh. H., Gschwend Dep., 7:3-10),
However, the parties do not dispute that Plaintiff received a memo from Human
Resources. That memo read, in pertinent part, as follows:
To: JoAnn Wirey, Director of Admissions and Records
From: John Bell, Director ofl-Iuman Resources
Date: August 1, 2007
Subject: FMLA Leave
On July 30, 2007, you notified me of your need to potentially miss scheduled
work time on an unpredictable basis due to an ongoing medical condition.
Your condition qualifies as a personal serious medical condition as defined by
the FMLA. Consequently, the College is required to accurately track any
further scheduled work time missed as a result of this specific condition.
[* * * 1
If you do, in fact, miss any further scheduled work time as a result of this
specific condition, it will be important that you note on your Request for Time
Off form "FMLA time" in addition to checking the "vacation", "sick time" or
"personal" time box, You may be required to furnish further medical
certification of your condition in the future. If this is required, I will notify
you and you will have 15 days to provide the required certification,
(#38 Exh. 3). The parties do not suggest that Plaintiff was ever required to furnish further
medical certification of her condition, Plaintiff avers that the memo was copied to Johnson;
Defendant contests only that it is hearsay but neither asserts nor provides testimony that Johnson
did not actually receive a copy oftha( memo.
- 16 -
Additionally, Plaintiff claims that she notified Deborah McGee, "the HR person", around
the same time, about her condition and her potential for needing to take leave. (#38, Wirey Dep.,
25:14-26:10). Curiously, Defendant accepts this assertion as undisputed (#39 ~ 19) even though
McGee's affidavit indicates that she had no personal knowledge of any medical condition or
disability affecting Plaintiff (#36 Exh. G, McGee Aff.
Student Development (#36 Exh. G, McGee Aff.
~
~
13). In 2009, McGee was the Director of
1). It is not clear what position in Human
Resources McGee held in 2007, if any, when Plaintiff purportedly notified her.
Last, Plaintiff claims that Brown, Johnson, and Gschwend all received a copy of a
physician's note indicating that she should not work weekends or long hours, on August 7 or 8,
2009. This memo states, in pertinent part, as follows:
August 5, 2009
To Whom It May Concern:
Joann is currently being treated for a health issue by this office. We have
instructed her not to overextend herself at work or with other activities. At this
time, she should not be working weekends or long days. She should be
allowed to judge and determine her limitations in regard to her workday.
Plaintiff provides an email chain showing that the memo was received by Brown and Johnson.
(#38, Exh. 10). Defendant, oddly, declines to admit that the presence ofthis email chain indicates
that the note was received by either Brown or Johnson, but does not dispute its authenticity. (#39
~
40).
The 2007 memo shows that John Bell, the predecessor to Gschwend, who was the
ultimate decision-maker, was on notice of Plaintiffs disability. But Gschwend's affidavit
indicates that he was not aware of thc substance of this memo. There are significant issues raised
by mandating actual knowledge in order to sustain a primajacie claim of disability
discrimination, including, among others, the incentives created if an employer has no duty to
communicate knowledge about employee disability to management-level decision-making
- 17 -
executives. See generally, Schuler v. SuperValu, Inc., 336 F.3d 702 (8th Cir. 2003); Kimbro v.
Atl. Richfield Co., 889 F.2d 869, 877 (9th Cir. 1989); Cordoba v. Dillard's, Inc., 419 F.3d 1169,
1184 (11 th Cir. 2005). No case law directly on point could be found as to whether the
requirement of actual knowledge could be satisfied by imputed knowledge betwecn successor
individuals holding the same position. This result is due to the ADA's language forbidding an
adverse employment action occurring "because of' the disability, rather than forbidding such
actions occurring "in spite of' the disability.
However, the court need not address thosc issues at this time. The 2009 memo and email
chain, if true, indicates that Brown, Johnson, and Gschwend received notice that Plaintiff had a
disability that prevented her from working long hours or on weekends. Defendant denies that
they received that email. This is a genuine issue of material fact regarding whether Defendant
had actual knowledge, and thus, could have discharged Plaintiff "because of' her refllsal to work
weekcnds. Taking the facts in favor of Plaintiff as the non-movant, the burden of production to
offer a nondiscriminatory reason for the discharge shifts to the moving party. Hoppe v. Lewis
Univ., 692 F.3d 833, 839 (7th Cir. 2012).
II. Employer's burden to provide a legitimate, nondiscriminatory reason
Having establisbed a prima facie case, taking all Plaintiff s alleged facts to be true, the
burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason
for the employment action. Nawrot v. CPC Int'!, 277 F.3d 896, 905 (7th Cir. 2002) (citations and
editing marks omitted). As the Nawrot court stated:
Without direct evidence of pretext (e.g., an admission), a plaintiff may show
pretext by presenting evidence tending to prove that the employer's proffered
reasons are factually baseless, were not the actual motivation for the discharge
in question, or were insufficient to motivate the discharge. But pretext
- 18 -
requires more than a showing that the decision was mistaken, ill-considered or
foolish, and so long as the employer honestly believed those reasons, pretext
has not been shown. We have warned repeatedly that we do not sit as a superpersonnel department that reexamines an entity's business decision and
reviews the propriety of the decision. With that admonishment, however, we
have also stated that we need not abandon good reason and common sense in
assessing an employer's actions."
Nawrot, 277 F.3d at 906. Turning to this case, PlaintitI is unable to demonstrate pretext in
Defendant's proffered legitimate, nondiscriminatory reasons for her termination. Defendant
provides three factors and one ultimate reason for Plaintiff's termination. The three factors are
two incidents of inappropriate behavior (the 9111 comments and the student photograph) and one
continuing pattern of professional neglect (the missing grad change records). The ultimate reason
of termination was Plaintiff s refusal to agrce to the Employee Action Plan Agreement. PlaintitI
does not deny that both incidents and her failure to correctly maintain records occurred, nor does
she deny that she refused to sign the Agreement, but rather, seeks to either justify her actions or
show that Defendant purportedly treated other similarly situated individuals ditIerently, thereby
demonstrating discrimination toward her. Plaintiff may demonstrate pretext by showing that "the
two employees dealt with the same supervisor, were subject to the same standards, and had
engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer's treatment of them. " Weber v. Universities Research
Ass 'n, Inc., 621 F.3d 589, 594 (7th Cir. 2010) (emphasis in original.)
Regarding the 9111 comments, Plaintiff asserts that Kevin Collins, the new faculty
member who reported her for those comments, and who was Brown's domestic partner, sent out
ill1
inappropriate email to several members of the staff. Defendant disputes that the email was
"wildly inappropriate", but the submitted documents show that three cartoons were attached to
the email, the contents of which were of an overtly sexual nature. (#38, WIREYOOOOIO-II).
- 19 -
There was no evidence presented that Collins was disciplined in any manner for those emails.
However, Plaintiff was not verbally warned for this factor alone, but rather for this incident
combined with the inappropriate photograph. (#36
~
26).
Regarding the photograph, Defendant offers no similarly situated individual who
interacted with students in an inappropriate manner. The court finds that the photograph is
professionally inappropriate for a student-administrator relationship 2 Plaintiff was only issued a
verbal warning for the combination of her behavior in the photo as well as for her 9111 comment,
because "the photograph was not appropriate or professional, especially in consideration of
[Plaintiff s] role at the College, and [Plaintiff's] September II comment was f1ippant, oiTensive,
and unprofessional." (#36
~
26) (editing marks omitted).
Regarding the grade changes, Plaintiff asserts that "Brown admits that not all grade
changes are accompanied by the proper form" (#38
~
72) and that "Brown admits that he made a
grade change for a professor without the proper documentation" (#38 '173). Defendant contests
this claim. Brown's testimony instead states that for that particular grade change, he changed the
grade after talking to the professor and put a note in the student's file. In contrast, Defendant
noted that there were a number of grade changes conducted under Plaintiff's watch that had no
documentation at all. (#36
'1~
46,47,56-62), This court therefore agrees with Defendant. The
discLlssion also goes to Plaintiffs accusation that "[n]o evidence was developed to indicate that
JoAnn was improperly changing grades for students." (#38
~
71). Plaintiff misunderstands this
factor in the calculus leading to her termination of employment; it is not that she had improperly
changed grades, but rather, that she had failed either to require or record proper documentation at
2 If there is any doubt, consider swapping the genders--suppose that an older male administrator in the
office tasked with keeping track of student grades, consents to a photo with a younger female student in
which her midriff and underclothing are exposed and the administrator is touching her shirt.
- 20-
the time of the grade change or to properly maintain that documentation after the change
occurred. (#36
'I~
55, 56).
And finally, the ultimate cause of Plaintiffs termination of employment was the final
precipitating event. Gschwend testified as follows:
The cause of the termination was irregularity in documentations that would
support grade chill1ges at the college, and that led to a meeting which we had
hoped would lead to [Plaintiff] staying with the college under a performance
improvement plan and under a warning status. The cooperation that we were
hoping through that dialogue did not happen. So ultimately, it was the choice
not to participate in those performance improvement plans that led to the
ultimate decision.
(#36, Gschwend Dep., 9: 19-10:3). As in Nawrot, Plaintiffs actual termination was not for her
history of misconduct or professional negligence, but rather for the ultimate event: there,
harassing a co-worker and assisting her in arbitration against the employer-defendant,
disregarding his duty of loyalty to the company; and here, Plaintiff s refusal to participate in the
Employee Action Plan Agreement. Nawrot v. CPC Int '1,277 F.3d 896, 907 (7th Cir. 2002). The
Agreement provided Plaintiff with one last chance to retain employment. In return, she would:
refrain from insubordination; handle her future dealings with staff, students, community
members, and other College representatives in a professional manner; and not contest the
disciplinary action. But again, like in Nawrot, where "[a]fter numerous documented occasions of
inappropriate behavior, [the Defendant employer] demill1ded that [the employee] straighten up
and fly right, and instead he crashed and burned," Plaintiff was given one final chance to perform
at the levels required but did not bother to even try. Nawrot. 277 F.3d at 907.
This court is permitted to grant summary judgment in an ADA claim when the plaintitI
fails to establish that the defendant's proffered reason for the subsequent termination was
pretextual. Dyrek v. Garvey, 334 F.3d 590, 599 (7th Cir. 2003); Nawrot v. CPC Int '/,277 F.3d
- 21 -
896, 907 (7th Cir. 2002). Here, viewed in the light most favorable to Plaintiff, there is no
evidence from which a reasonable trier of fact could conclude that Defendant's proffered reason
for Plaintiffs termination was pretextual. Not only did Plaintiff engage in objectively
unprofessional behavior and fail to perform to the professional standards required by Defendant,
but also affirmatively declined Defendant's last opportunity to retain her employment. These are
not unreasonable expectations for employment as a high-level administrator at a college.
Therefore, she was not meeting Defendant's legitimate expectations. Further, Plaintiff could
provide no comparator employee who had engaged in similar behavior but was not disciplined.
Accordingly, this court grants summary judgment in favor of Defendant on Plaintiff's ADA
claim.
n. FMLA claim
Although Plaintiff does not clearly say so in her filings, she appears to be bringing a
FMLA claim for wrongful termination under both an interference theory (that Defendant
interfered with her exercise of her right to FMLA leave) and a retaliation theory (that Defendant
retaliated against her taking FMLA leave by terminating her employment.) (#38 pp. 19-20). See
KaufJinan v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005). Although Defendant interprets
Plaintiff's filings solely as a retaliation theory, this court addresses both theories out of an
abundance of caution.
Under the FMLA, an eligible employee is entitled to 12 work-weeks of leave in any 12month period because of a serious health condition that makes the employee unable to perform
the functions of the position of such employee. 29 U .S.c. § 2612( a)( I )(D) (held unconstitutional
as to abrogating States' immunity from suit for damages in accordance with 29 U.S.C.
- 22-
§2617(a)(2), pursuant to Coleman v. Court ojAppeals of Maryland, 132 S. Ct. 1327, 1337, 182
L. Ed. 2d 296 (2012)).
As a threshold matter, an independent roadblock to Plaintiff s case under either theory is
that she failed to provide any notice to DeFendant at the point where she sought to take medical
leave. The CFR requires that "[a]n employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated
timing and duration of the leave." 29 C.F.R. § 825.302(c). The form of notice does not require
any "magic words", and in fact, does not even need to invoke the FMLA. Dotson v. Pfizer, Inc.,
558 F.3d 284,293 (4th Cir. 2009) (noting the "generally-accepted position that no 'magic words'
are necessary to invoke the protections of the FMLA."). However, an employee seeking leave for
selt:care under § 2612(a)(l)(D) "shall provide the employer with not less than 30 days' notice,
before the date the leave is to begin, of the employee's intention to take leave under such
subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days,
the employee shall provide such notice as is practicable." 29 U.S.C. § 2612(e)(2)(B) (emphasis
added). Further, in order to trigger an employer's duties, the employee must provide "the sort of
notice that will inform them ... that the FMLA may apply. For leave to be FMLA-qualifying, it
must first result from a serious health condition." Phillips v. Quebecor World RAI, Inc., 450 FJd
308, 311 (7th Cir. 2006) (editing marks omitted). Plaintiff's own deposition testimony belies any
argument that she ever took FMLA leave, much less provided the statutorily-required notice that
she sought to take such leave. In her deposition, she testified as follows:
Q [Defendant]. Okay. Mr. Bell notified you in this memo that your condition
qualitied as a serious health condition under the FMLA, eon-eet?
A [Plaintiff]. Yes.
Q. And any work time missed because of this condition would qualify as
FMLA leave, con-eet?
A. Correct.
- 23 -
Q. Hc also asks you to note on any leave request form "FMLA time" when
A.
Q.
A.
Q.
A.
Q.
A.
[*
asking for time off because of this condition, correct?
Correct.
And it's a customary practice at Richland for an employee to complete a
Request for Time Off Form when asking for sick or vacation leave,
correct?
Correct.
After receiving this memo, did you ever need time off because of your
condition?
No.
The condition being chronic fatigue syndrome?
That is correct, no, I did not need time off.
* *]
Q. When you needed time off because of this condition, you never noted on
your request form that your illness was for FMLA time, correct?
A. Correct, because I never took time off for it. If] adjusted my schedule,
then I made up the time.
Q. SO then you never took FMLA leave for your condition?
A. Correct. There was no need to.
(#38, Wirey Dep., 27:9-29:2). Because Plaintiff stated that she never actually took FMLA time
ofT, much less notified Defendant that she was going to do so, her failure to provide sutTicient
notice is dispositive. In the interest of completeness, this opinion proceeds by presuming that
either her 2007 or 2009 memos constituted suftlcient notice and addressing the remaining merits.
To prevail on an interference theory, Plaintiff must show that: (1) she was eligible for
FMLA protection; (2) Defendant was covered by the FMLA; (3) she was entitled to FMLA
leave; (4) she provided suftlcient notice of her intent to take leave; and (5) Defendant denied her
benefits to which she was entitled. Ryl-Kuchar v. Care Centers, Inc., 565 F.3d 1027, 1030 (7th
Cir. 2009); see 29 C.F.R. § 825.220(a)(l) ("An employer is prohibited from interfering with,
restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.");
§ 82S.220(c) ("The Act's prohibition against 'interference' prohibits an employer from
discriminating or retaliating against an employee or prospective employee for having exercised
- 24-
or attempted to exercise FMLA rights,")
The only allusion Plaintiff makes that Defendant "interfered", or otherwise attempted to
coerce her to not exercise her rights is her allegation that Brown demanded she take a Saturday
shift or face a charge of insubordination, (#38 p, 19), But this assertion must fail because the
sequence of events is illogical. Brown first required Plaintiff to work Saturdays, and only
afterwards did Plaintiff provide a medical reason in the 2009 memo, much less notice that might
alert Defendant to inquire as to whether FMLA leave was being invoked, Up until the point
where Plaintiff said she was taking off Saturdays because of her health reasons, it would have
appeared to Defendant that she was simply engaging in absenteeism, Plaintiff does not allege
that Defendant denied her any rights after she provided the 2009 memo, Accordingly, her FMLA
claim under an interference theory fails,
"A retaliation claim requires proof of discriminatory or retaliatory intent, which can be
established directly or indirectly, Under the direct method of proof; the plaintiff must have
sufficient evidence, direct or circumstantial, that her employer intended to punish her for
requesting or taking FMLA leave, Additionally, the plaintitI ean try to prove retaliatory intent
indirectly by showing that she was performing her job satisfactorily but was treated differently
from similarly situated employees who did not request FMLA leave," Nicholson v, Puile Homes
Corp" 690 F,3d 819,828 (7th eif. 2012), Regarding the first method, Plaintiff has no direct or
circumstantial evidence that Defendant intended to punish her for taking FMLA leave, It is clear
that there is no direct evidence, As for circumstantial evidence, Plaintiff suggests that the case is
all about "timing", Plaintiff argues in her Response that the fact that her termination occurred
within two-and-one-half months after her seeking FMLA leave (which, as discussed above, was
not sufficient to trigger Defendant's FMLA duties) is sufficient to raise an inference that
- 25 -
Plaintiffs termination was due to retaliatory intent. This court disagrees. Suspicious timing alone
is rarely sufficient in and of itself to create a triable issue. Culver v. Gorman & Co .• 416 F.3d
540, 546 (7th Cir. 2005). "Close temporal proximity provides evidence of causation, and may
permit a plaintiff to survive summary judgment provided that there is also other evidence that
supports the infcrence of a causal link." Lang v. Illinois Dept. of Children & Family Services,
361 FJd 416, 4 I 9 (7th Cir. 2004). The Seventh Circuit has held that even shorter periods are
insufficient, on their own, to sustain an inference of retaliatory intent. See Argyropoulos v. City
of Alton, 539 FJd 724, 734 (7th Cir. 2008) (seven-week interval, combined with performance
deficiencies, insufficient to withstand summary judgment); Turner v. The Saloon, Ltd., 595 F.3d
679,690 (7th Cir. 2010) (two months insuffieient); Contreras v. Suncast Corp., 237 F.3d 756,
765 (7th Cir. 2001) (one month insufficient). There were 76 days, or two months and 14 days,
between the email exchange and Plaintiffs termination. As Defendant has argued, a gap of twoand-one-halfmonths between an employee's alleged protected activity and her termination of
employment is too attenuated, as a matter of law, to circumstantially establish a causal link
between those events or to raise an inference of retaliation.
Second, as discussed in the ADA section above, Plaintiff cannot show that she performed
her job satisfactorily but was treated differently from similarly situated employees who did not
request FMLA leave. Plaintiff neither sufficiently requested FMLA, nor performed her job
satisfactorily, nor did she proffer any similarly situated employees that were treated differently.
Accordingly, PlaintifI cannot support either her ADA or FMLA claims.
- 26 -
IT IS THEREFORE ORDERED THAT:
(I) Defendant's Motion for Summary Judgment (#35) is GRANTED.
(2) This case is terminated.
Entered this ~lJ?day of~ 2012
s/ Michael P. McCuskey
- 27 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?