Wheatley v. Factory Card and Party Outlet
Filing
31
OPINION (See Written Opinion): The Court concludes that a genuine question of material fact exists about whether Wheatley was able to work on July 11, 2009 with a walking boot, and that she was not estopped from bringing her disability claim. Therefore, FCPO's Motion for Summary Judgment (d/e 23 ) is DENIED. Entered by Judge Sue E. Myerscough on 9/30/2014. (VM, ilcd)
E-FILED
Tuesday, 30 September, 2014 11:03:07 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LORA J. WHEATLEY,
Plaintiff,
v.
FACTORY CARD AND PARTY
OUTLET, a division of AMSCAN
HOLDINGS, INC.,
Defendant.
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Civil No. 11-3414
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Defendant Factory Card & Party Outlet’s
Motion for Summary Judgment (d/e 23) against its former
employee, now the Plaintiff in this case, Lora Wheatley. The motion
is DENIED. The Court finds that there are genuine questions of
material fact concerning whether Wheatley was a qualified
individual with a disability under the Americans with Disabilities
Act on the date of her termination, and concludes that Wheatley
was not estopped from bringing her claim.
I. FACTUAL BACKGROUND
For nearly 12 years, Plaintiff Lora Wheatley worked for
Defendant Factory Card and Party Outlet (“FCPO”) in Springfield,
Illinois. Motion for Summary Judgment (“Mot.”), d/e 23 at 3. After
starting as a store supervisor at the party-goods chain in 1996,
Wheatley was later promoted to store manager. Id. On July 11,
2009, FCPO terminated Wheatley for not coming to work. The
reason that Wheatley did not come to work on July 11 and that
FCPO subsequently terminated her are now the subject of this
lawsuit. Id. at 4. Alleging violations of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., Wheatley
contends that FCPO failed to accommodate her disability and
discriminated against her because of her disability. See Complaint,
d/e 1 ¶ 1. FCPO denies these allegations, and now moves for
summary judgment. See Answer to Complaint, d/e 6; Mot., d/e 23.
In November 2008, Wheatley was a store manager at FCPO’s
Springfield, Illinois location when a family medical incident took her
away from work for 19 days. See Mot., Ex. Q, d/e 23-1 at 51.
Wheatley sought and was given 19 days of leave under FCPO’s
Family and Medical Leave Act (FMLA) policy, which provides
Page 2 of 20
employees with 12 weeks of paid leave in a rolling twelve-month
period. See id. Wheatley returned to work after the 19 days
expired, using 2.7 weeks out of her 12 weeks of FMLA leave.
In March 2009, Wheatley injured her foot and submitted a
note to FCPO from her primary care physician, Dr. James A.
Bohan, stating that she could return to work “without restrictions”
on March 27, 2009. Mot., Ex. G, d/e 23-1 at 32. She returned to
work on that date, resuming her duties as store manager. Mot., Ex.
H, d/e 23-1 at 34. When she went home at the end of her shift,
however, she “couldn’t walk” and went to see Dr. Bohan again. Id.
Dr. Bohan wrote another note stating that Wheatley should not
work for one week and recommended that she see Dr. Karolyn
Senica, an orthopedist. Mot., Ex. I, d/e 23-1 at 35.
On April 16, 2009, FCPO sent Wheatley a letter asking her to
have her physician fill out a “Certification of Healthcare Provider for
Employee’s Serious Health Condition” and return it to FCPO within
15 days. Mot., Ex. N, d/e 23-1 at 41. An FMLA notice
accompanying the letter stated that Wheatley had requested leave
beginning on April 8, 2014, and that she had 9.3 of her 12 weeks of
FMLA leave remaining. Id. at 42. FCPO also enclosed materials for
Page 3 of 20
applying for short-term disability benefits through Aetna Insurance.
Id. at 41. The record does not indicate whether Wheatley sent
FCPO the physician certification, but clearly Wheatley began using
her remaining FMLA leave.
Wheatley then had a number of appointments with two
different doctors. She first went to see Dr. Senica, the orthopedist,
on April 28, 2009. Memorandum of Law in Opposition to
Defendant’s Motion for Summary Judgment (“Resp.”), Ex. 1, d/e
26-1 at 1. At that time, Dr. Senica told Wheatley that she should
remain off work until further notice. Id.; Mot., Ex. J, d/e 23-1 at
36. Wheatley apparently met with Dr. Senica again on June 10,
2009, but the results of that visit are unclear. Resp., Ex. 1, d/e 261 at 1; Mot., Ex. K, d/e 23-1 at 37. With Wheatley’s FMLA leave set
to expire on June 13, 2009, FCPO granted Wheatley four additional
weeks of leave, lasting until July 11, 2009. Mot., Ex. P, d/e 23-1 at
48-49. During this four-week extension, Wheatley sought a second
opinion about her foot from Dr. Jeffrey Fleischli, a podiatrist, on
June 17, 2009. Resp., Ex. 1, d/e 26-1 at 2. The record does not
contain the results of that initial visit with Dr. Fleischli, but the
record does show that Wheatley returned to Dr. Senica on June 22,
Page 4 of 20
2009, and that Dr. Senica wrote Wheatley a note stating that she
could return to work on July 6, 2009 “with no restrictions.” Mot.,
Ex. L, d/e 23-1 at 38.
On July 1, 2009, Wheatley again met with Dr. Fleischli. Mot.,
Ex. S, d/e 23-1 at 59. In an Aetna Attending Physician Statement
dated July 8, 2009, which appears to have been based on the
results of Wheatley’s June 17 and July 1 visits, Dr. Fleischli
checked a box indicating that Wheatley had “No ability to work.
Severe limitation of functional capacity; incapable of minimal
activity.” Mot., Ex. M, d/e 23-1 at 39-40. Under another section of
the form titled “What medical restrictions/limitations are you
placing on patient?,” Dr. Fleischli wrote “[i]mmobilization.” Id. at
40. Dr. Fleischli noted on the form that Plaintiff would “need to be
absent from work due to a disability beginning on July 1, 2009 and
ending on August 15, 2009.” Id. at 39. The form also indicated
that Dr. Fleischli “prescribed [this] restriction on work activities” on
July 1, 2009, that the “restrictions/limitations” would be in effect
for six weeks, and that Dr. Fleischli estimated that Wheatley would
return to work on August 15, 2009. Id. at 40. Lastly, in response
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to the question on the form “is your patient motivated to return to
work?,” Dr. Fleischli wrote “yes.” Id. at 40.
In an affidavit that Wheatley submitted in support of her
response to FCPO’s motion for summary judgment, Wheatley claims
that during her July 1 visit with Dr. Fleischli, she asked him if she
could return to work before her FMLA leave expired on July 11
because she did not want to lose her job. Resp., Ex. 1, d/e 26-1 at
2. According to Wheatley, Dr. Fleischli told her that she could
return to work if her foot was immobilized in a boot. Id. After this
visit, Wheatley called FCPO’s Regional Resources Manager, Cheryl
Cole. Id. The parties agree that during this conversation, Cole told
Wheatley that her four-week extension would expire on July 11,
2009. See Mot., Ex. Q, d/e 23-1 at 50. Wheatley contends that she
then informed Cole that Dr. Fleischli had told her that she would
need to be off work for another two weeks, and Cole told her that
she would be terminated if she could not return by July 11. Resp.,
Ex. 1, d/e 26-1 at 2. Wheatley claims that she then called her
immediate supervisor, Foster Bliss, and told him that she would be
able to return to work wearing a walking boot in two weeks, but
Page 6 of 20
that Bliss expressed doubt that such an accommodation would be
allowed. Resp., Ex. 1, d/e 26-1 at 2.
On July 2, 2009, Cole sent Wheatley a “follow up” letter to
their July 1 conversation. Mot., Ex. Q, d/e 23-1 at 50. In the
letter, Cole reaffirmed her warning to Wheatley that if Wheatley
could not return to work at the end of the four-week extension—on
July 11, 2009—she would be terminated, though eligible for rehire.
Reply to Memorandum in Opposition to Defendant’s Motion for
Summary Judgment (“Reply”), Ex. A, d/e 27-1 at 1. This letter was
accompanied by a Fitness for Duty Certification to be signed by a
physician. Id. at 2. On the certification form is a handwritten note
that says “Lora, Please have Dr. complete these forms for return to
work. Thank you!” Id. The form has blank spaces for the physician
to fill in that include the date the employee may return to work and
whether the employee will have any work restrictions. If the
physician notes that the associate will need restrictions, the
physician is asked to “explain restrictions as they relate to time and
duties.” Id.
Wheatley received Cole’s letter on July 6, 2009. Resp., Ex. 1,
d/e 26-1 at 2. Wheatley claims that after receiving the letter, she
Page 7 of 20
called an organization called Great Lakes ADA Center, and a
representative named Peter advised her that she should ask FCPO if
she could have a further extension of her leave or return to work
with a walking boot. Id. at 3. The next day, July 7, Wheatley called
Cole and informed her that Dr. Fleischli had told Wheatley that she
could return to work wearing a walking boot, but that Cole then
told her that would not be possible because Wheatley needed to be
able to climb on a ladder to do her job. Id. at 4.
Wheatley does not dispute that after talking to Cole, she did
not return the certification form or provide any other written
documentation to support her claim that she was released to work
in July of 2009. See Mot., Ex. R, d/e 23-1 at 56. Rather, she
claims that Cole made it clear that FCPO would not allow her to
return to work with a walking boot, so she felt it would be pointless
to return written documentation from Dr. Fleischli, who had
advised her that she would need to wear the boot to go to work.
Resp., Ex. 1, d/e 26-1 at 5. Since Wheatley felt that FCPO would
not allow her to return to work with the boot, she contacted Dr.
Fleischli on July 8, 2009 and asked him to prepare the Aetna
Page 8 of 20
Attending Physician Statement discussed above so that she could
apply for disability benefits. Id.
On August 8, 2009, Aetna sent Wheatley a letter regarding her
application for long-term disability benefits. Mot., Ex. D, d/e 23-1
at 24-25. The letter stated that Aetna concluded that Wheatley was
“unable to perform the material duties of [her] own occupation” and
found her “totally disabled from [her] own occupation.” Id. at 24.
Aetna stated it would issue Wheatley an initial benefit payment for
the “period July 7, 2009 through July 31, 2009,” and that the
benefits would last for 24 months from July 7, 2009. Id. Although
the letter references Wheatley’s application to the insurance
company for long-term benefits, Wheatley’s actual application is not
part of the record.
On November 10, 2011, Wheatley filed this lawsuit against
FCPO, claiming that FCPO failed to accommodate her disability and
discriminated against her on the basis of her disability. See
Complaint, d/e 1. At the request of the parties, the Court reopened
the discovery deadline to allow FCPO to depose Wheatley. After the
deposition, the Court granted FCPO’s request to file a motion for
summary judgment, which is now before the Court.
Page 9 of 20
II. LEGAL STANDARD
Summary judgment is proper if the movant—here, FCPO—
shows that there are no genuine issues of material fact and that it
is consequently entitled to judgment as a matter of law. FED. R. CIV.
P. 56(a). FCPO bears the initial burden of identifying the evidence
that demonstrates the absence of genuine issues of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). No genuine
issues of material fact exist if no reasonable jury could find in favor
of Wheatley, the nonmoving party. See Brewer v. Bd. of Trs. of the
Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on
FCPO’s Motion for Summary Judgment, this Court must consider
the facts in the light most favorable to Wheatley as the nonmoving
party, and draw all reasonable inferences in Wheatley’s favor. See
Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir. 2008).
III. ANALYSIS
FCPO moves for summary judgment against Wheatley on two
grounds—first, that Wheatley was not released to return to work on
the date of her termination, and was, therefore, not a qualified
individual with a disability when she was terminated; and second,
that she was judicially estopped from bringing her claim because
Page 10 of 20
she received disability benefits for the period including and
following the date of her termination. See Mot., d/e 23 at 1-2.
A. A Genuine Issue of Material Fact Exists as to Whether
Wheatley Could Work with a Reasonable
Accommodation on the Date of Her Termination.
Wheatley brings her claim under the ADA, alleging that FCPO
failed to provide her with a reasonable accommodation and
discriminated against her because of her disability. The ADA’s
protections against discrimination apply only to a “qualified
individual” with a disability. 42 U.S.C. § 12112(a). Therefore,
before analyzing whether Wheatley can show that FCPO failed to
accommodate her disability, she must show that she was a
“qualified individual” under the ADA.
A qualified individual with a disability is one “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); see, e.g., Bultemeyer v. Fort Wayne
Cmty. Sch., 100 F.3d 1281, 1284 (7th Cir. 1996). To determine
whether an individual is “qualified,” the Court first analyzes
whether the person satisfied the prerequisites of the position, such
as educational background, experience, and skills. See Bombard v.
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Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996)
(quoting 29 C.F.R. § 1630.2(m)). Those qualifications of Wheatley
are not contested here, so the Court will focus on the second
inquiry: whether Wheatley could perform the essential functions of
her position, with or without a reasonable accommodation, when
she was terminated on July 11, 2009. See id.
FCPO argues that Wheatley was not a qualified individual
because she was not “released” to work on either July 7, 2009, the
date of her alleged request for an accommodation, or July 11, 2009,
the date of her termination. FCPO contends that without a release
from a doctor, Wheatley could not perform an essential function of
her job—showing up for work—and therefore, she was not a
qualified individual. FCPO relies on the Attending Physician
Statement completed by Dr. Fleischli on July 8, 2009 stating that
Wheatley was unable to work until August 15, 2009, and on
Wheatley’s deposition testimony in which she stated that she was
not released by a doctor to work on July 11, 2009. Mot., Ex. M, d/e
23-1 at 39; Mot., Ex. P, d/e 23-1 at 48.
In her response, Wheatley vehemently disagrees and contends
that she was released to work on July 11, 2009, because on July 1,
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2009, Dr. Fleischli told her she could work if she wore a boot that
immobilized her foot. In Wheatley’s affidavit supporting her
response, she recounts her conversation with Dr. Fleischli
regarding the boot, as well as her later phone calls to Cheryl Cole
and Foster Bliss in which she told them she could return to work
wearing a boot and they rejected this proposed accommodation.
See Resp., Ex. I, d/e 26-1 at 1-4.
FCPO objects that Wheatley’s affidavit constitutes “self-serving
hearsay.” Reply, d/e 27 at 6. The Court notes that the Seventh
Circuit has recently clarified that the fact that an affidavit is “selfserving” should not be used to “denigrate” it as a source of
evidence, since “[d]eposition testimony, affidavits, responses to
interrogatories, and other written statements by their nature are
self-serving.” Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013).
Still, it is true that Dr. Fleischli’s statement would not be
admissible “to prove the truth of the matter asserted in the
statement”—that is, to prove that Wheatley could work with a boot.
See FED. R. EVID. 801. But Wheatley does not carry that burden at
this stage, and she is not attempting to use the statement for that
purpose. Rather, she is using the statement as background
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information to explain why she told Cole and Bliss that she would
be able to return to work with a walking boot. The statement,
therefore, falls under the hearsay exception for showing the effect a
statement has upon a listener. See United States v. Hanson, 994
F.2d 403, 406-07 (7th Cir.1993) (“An out of court statement that is
offered to show its effect on the hearer’s state of mind is not
hearsay.”).
The Court concludes that Wheatley’s belief that she could
return to work with a walking boot, along with Dr. Senica’s release
of Wheatley to return to work on July 6, 2009, see Mot., Ex. L, d/e
23-1 at 38, and Dr. Bohan’s earlier release, see Mot., Ex. G, d/e 231 at 32, create a genuine issue of material fact as to whether
Wheatley was capable of working on July 11. According to
Wheatley, the Attending Physician Statement that Dr. Fleischli
prepared that called for Wheatley’s “immobilization” was written
after Wheatley told Dr. Fleischli that FCPO had rejected her
proposed accommodation, and thus does not constitute conclusive
proof that she could not have worked with a boot on July 11. See
Resp., Ex. 1, d/e 26-1 at 5. Further, what Dr. Fleischli meant by
immobilization is not clear, but he most likely meant the
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immobilization of Wheatley’s foot with a walking boot. Moreover,
while FCPO makes much of Wheatley’s deposition testimony
regarding whether she had been “released to work,” the excerpted
testimony does not establish that Wheatley would not have been
able to return to work with a walking boot. Rather, Wheatley
appears to have meant that she had never gotten a written work
release from Dr. Fleischli, but she later explained that she did not
think there was a reason to get such a release because Cole and
Bliss had told her that she would not be allowed to return to work
wearing a boot. See Reply, Ex. D, d/e 27-4 at 8-9; Resp., Ex. 1, d/e
26-1 at 5.
For those reasons, the record remains unclear on whether
Wheatley could have returned to work with a walking boot on July
11. If Wheatley was in fact capable of working with a boot, then
FCPO must show that allowing her to return to work with a boot
would not have been a reasonable accommodation, since Cole and
Bliss both told Wheatley that she would not be allowed to come
back to work with a boot.1 There are consequently a number of
The Court notes that Cole and Bliss’s statements in Wheatley’s affidavit
constitute admissible nonhearsay under Federal Rule of Evidence 801(d)(2)(D).
1
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outstanding issues of material fact that preclude summary
judgment against Wheatley’s claim.
B. Wheatley Is Not Estopped from Pursuing Her ADA
Claim.
FCPO also argues that Wheatley is judicially estopped from
pursuing her ADA claim because she represented to Aetna that she
was unable to perform the “material duties” of her employment
when she sought long-term disability benefits. Judicial estoppel is
an equitable doctrine that generally prohibits a party who prevails
on one ground in a lawsuit from contradicting that ground in
another suit. See Opsteen v. Keller Structures, Inc., 408 F.3d 390,
392 (7th Cir. 2005) (“Litigants who take one view of the facts, and
prevail, are equitably estopped to assert the opposite later.”).
According to FCPO, Wheatley’s representations to Aetna that she
was unable to work directly contradict her claim under the ADA
that she could perform the essential duties of her job. This, FCPO
contends, means she is estopped from suing under the ADA.
It is true that because Wheatley bears the burden of showing
she “can perform the essential functions of her job,” a
representation to Aetna that she cannot perform the “material
Page 16 of 20
duties” of her job would appear to contradict an essential element of
her ADA claim. See, e.g., Cleveland v. Policy Mgmt. Sys. Corp., 526
U.S. 795, 806 (1999) (finding that “a plaintiff’s sworn assertion in
an application for disability benefits that she is, for example,
‘unable to work’ will appear to negate an essential element of her
ADA case”). However, in Cleveland, the Supreme Court found that
because of the differences between the ADA and the Social Security
Act, which does not consider the possibility of reasonable
accommodations, a “[Social Security Disability Insurance] claim and
an ADA claim can comfortably exist side by side.” Id. at 802-03.
The Court therefore refused to impose a “special negative
presumption” that a person who receives Social Security Disability
Insurance benefits is estopped from pursuing an ADA claim, and
instead required the plaintiff to “offer a sufficient explanation” for
the apparent contradiction between the two claims. Id. at 802-03,
805-06. The Court held that an explanation can survive summary
judgment if it is “sufficient to warrant a reasonable juror’s
concluding that, assuming the truth of, or the plaintiff's good-faith
belief in, the earlier statement, the plaintiff could nonetheless
Page 17 of 20
‘perform the essential functions’ of her job, with or without
‘reasonable accommodation.’” Id. at 807.
Following Cleveland, the Seventh Circuit in Lee v. City of
Salem, Ind., 259 F.3d 667, 671 (7th Cir. 2001), found that an
employee who stated that he “had no other thing to do” but apply
for disability benefits after his employer kept “hammering [him] and
saying [he was] disabled” had not sufficiently explained the
contradiction between his ADA claim and his application for
disability benefits. The court emphasized that
Lee does not account for his previous statements by
explaining, for example, that the SSA does not consider
the possibility of reasonable accommodations, so that
when he claimed he was unable to return to his job with
the city, he was simply saying that he could no longer do
that job unless the city accommodated him, which it
refused to do.
Id. at 676.
Unlike the plaintiff in Lee, Wheatley does argue that she could
have continued to do her job if FCPO had accommodated her
disability, which it refused to do. To receive disability benefits from
Aetna, Wheatley had to certify that she could not perform the
“Material Duties” of her job, which were defined as those duties that
“are normally required for the performance of [her] own occupation”
Page 18 of 20
and “cannot be reasonably omitted or modified.” Mot., Ex. C, d/e
23-1 at 5. Based on FCPO’s alleged rejection of Wheatley’s
proposed accommodation, Wheatley thought that FCPO considered
climbing on a ladder to be a material duty that could not be omitted
or modified. Resp., Ex. 1, d/e 26-1 at 5. But she still could have
believed that if FCPO did allow her the accommodation of wearing a
boot and not climbing a ladder, she could have worked. For that
reason, the Court finds that a reasonable juror could conclude that
Wheatley could have worked with an accommodation, but believed
she could not complete the “material duties” of her job based on
FCPO’s rejection of her proposed accommodation. Wheatley was,
therefore, not judicially estopped from bringing her ADA claim.
IV. CONCLUSION
The Court concludes that a genuine question of material fact
exists about whether Wheatley was able to work on July 11, 2009
with a walking boot, and that she was not estopped from bringing
her disability claim. Therefore, FCPO’s Motion for Summary
Judgment (d/e 23) is DENIED.
ENTERED: September 30, 2014
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s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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