Wheatley v. Factory Card and Party Outlet
Filing
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OPINION (See Written Opinion): FCPO's Renewed Motion for Summary Judgment (d/e 52 ) is GRANTED. The Clerk is directed to close this case. Entered by Judge Sue E. Myerscough on 5/14/2015. (VM, ilcd)
E-FILED
Thursday, 14 May, 2015 10:45:46 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
Renewed Motion for Summary Judgment (d/e 52). Because the
Plaintiff cannot prove that she was a qualified individual with a
disability at the time she was fired, the Defendant’s motion is
GRANTED.
The facts of this case were discussed in detail in the Court’s
September 30, 2014 opinion. In that opinion, the Court held that
summary judgment in favor of the Defendant, Factory Card and
Party Outlet (FCPO), was not justified, because FCPO had not
shown that the Plaintiff, Lora Wheatley, could not prove that she
was a qualified individual with a disability on July 11, 2009, the
day that she was fired. In a later order denying FCPO’s motion to
reconsider, the Court further clarified that summary judgment was
improper because “[d]eposition or trial testimony from Dr. [Jeffrey]
Fleischli will be necessary to clarify what he and Wheatley told each
other regarding the possibility that Wheatley could have gone back
to work in a boot, and what Dr. Fleischli meant by ‘immobilization’
in the Attending Physician Statement.” The Court also pointed out
the competing conclusions of Drs. Fleischli, James Bohan, and
Karolyn Senica regarding Wheatley’s ability to return to work.
Prior to this case’s April trial date, FCPO filed a motion in
limine to bar Dr. Fleischli from presenting expert testimony because
Wheatley had only disclosed Dr. Fleischli as a lay witness, not as an
expert witness, as required by Federal Rule of Civil Procedure
26(a)(2). See Motion in Limine to Bar Evidence of Plaintiff’s Ability
to Return to Work with a “Walking Boot,” d/e 35. After holding a
pretrial hearing, the Court granted Wheatley leave to file amended
witness disclosures, disclosing Dr. Fleischli as an expert witness, if
Wheatley would also present a detailed description of what Dr.
Fleischli’s testimony would be at trial. See Minute Entry of March
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30, 2015. The next day, Wheatley filed a notice stating that she
could not provide a detailed description of Dr. Fleischli’s testimony
and that she would instead not be calling Dr. Fleischli as a witness
at all. See Plaintiff’s Notice of Removing a Witness from Her
Witness List, d/e 50. Two days later, FCPO filed its Renewed
Motion for Summary Judgment, in which it argued that without the
testimony of Dr. Fleischli, Wheatley could not prove that she was a
qualified individual with a disability on July 11, 2009. See
Renewed Motion for Summary Judgment, d/e 52. Wheatley
responded that summary judgment would be improper because
Wheatley could testify about her ability to return to work with a
walking boot based on her experience using a boot at home. See
Plaintiff’s Response to Defendant’s Renewed Motion for Summary
Judgment, d/e 53.
The Court concludes that summary judgment against
Wheatley’s claims is now proper because Wheatley can no longer
establish that she was medically able to return to work wearing a
walking boot. In Basith v. Cook County, 241 F.3d 919, 924-25 (7th
Cir. 2001), the plaintiff worked as a pharmacy technician until
being injured in a car accident, which significantly limited his
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mobility. When the plaintiff’s employer did not allow the plaintiff to
return to his previous position because the plaintiff’s physical
limitations meant he could no longer deliver medications—an
essential function of his previous position—the plaintiff attempted
to argue that he could perform deliveries by using a “motorized
wheelchair with a carrying basket.” Id. at 930. The Seventh Circuit
found that “Basith provide[d] no evidence to substantiate this claim,
such as a report from his doctor that he could fully perform the
delivery function with his proposed wheelchair,” and rejected what
it characterized as the plaintiff’s “bare assertion” that a wheelchair
would be an effective accommodation. Id. Implicit in the court’s
holding is that the testimony of the plaintiff, alone, was not
sufficient to show that the plaintiff would be medically able to
perform the functions of his job with his proposed accommodation.
See also Vollmert v. Wisconsin Dep’t of Transp., 197 F.3d 293, 298
(7th Cir. 1999) (focusing on whether an expert’s report “was
sufficient to raise a genuine issue of fact regarding [the plaintiff’s]
ability to perform the job with accommodations” and implicitly
upholding the district court’s conclusion that the plaintiff’s own
contention about her ability to perform the job with
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accommodations was not sufficient to prove her claim); Weigel v.
Target Stores, 122 F.3d 461, 468-69 (7th Cir. 1997) (rejecting the
plaintiff’s expert testimony and finding that the plaintiff was then
left with no evidence, thus implicitly finding that the plaintiff could
not prove her claim through her own conjecture about what would
accommodate her limitations).
The Basith holding is supported by the fact that in most cases,
and certainly in Wheatley’s case, the question of whether a person
can perform a job function with a reasonable accommodation is an
inherently medical question which must be answered by expert
testimony. Here, the question is: Could Wheatley’s foot medically
withstand the pressure and exertion of performing her job in a
walking boot? Wheatley is not qualified to answer that question.
She would need to present expert medical testimony, which she
now cannot do.
This question is distinguishable from the question of whether
a plaintiff can be considered “disabled” under the ADA, which can,
in certain circumstances, be answered without expert testimony.
See E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 643-44 (7th Cir.
2010) (finding that expert testimony was not necessary when “the
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scope of a physical limitation . . . is obvious to an observer and
easily described by the sufferer”); E.E.O.C. v. Sears, Roebuck & Co.,
417 F.3d 789, 802 (7th Cir. 2005) (“A reasonable jury could
conclude, based on this evidence and its own life experience, that
Keane’s severe difficulty in walking the equivalent of one city block
was a substantial limitation compared to the walking most people
do daily.”). The disability determination requires the jury to
evaluate whether a person’s condition “substantially limits” the
person in conducting major life activities, such as walking and
caring for oneself. See 29 C.F.R. § 1630.2. Naturally, determining
from a person’s testimony whether she is substantially limited in
her ability to perform routine, everyday tasks can be a commonsense exercise. See Sears, Roebuck & Co., 417 F.3d at 802.
Determining whether someone’s previously diagnosed medical
limitation could be alleviated with a certain accommodation, on the
other hand, is a more specialized inquiry. In this case, at least, that
inquiry would require expert medical testimony.
Wheatley’s inability to answer this medical question is
exacerbated by the fact that the medical evidence that does exist in
the record is inconsistent with the answer she attempts to present.
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On the one hand are Dr. Bohan’s and Dr. Senica’s releases stating
that Wheatley could return to work without restrictions on March
27, 2009, and July 6, 2009, respectively, which would mean that
Wheatley was not actually disabled at all and therefore not covered
by the ADA.1 On the other hand there is Dr. Fleischli’s Attending
Physician Statement, which states that Wheatley had to be
immobilized, had no ability to work, and could not return to work
until August 15, 2009. The Court previously held that Dr.
Fleischli’s Statement may be ambiguous in light of Wheatley’s
allegations that Dr. Fleischli told her she could return to work in a
walking boot, but any of Dr. Fleischli’s statements to that effect
would be inadmissible hearsay at trial. With no testimony from Dr.
Fleischli, we are left with a document that quite clearly states that
Wheatley could not work on July 11, 2009.2 In essence, Wheatley
is now asking to go to trial with no evidence but her testimony,
The Court notes that Dr. Senica would not be able to testify as an expert at
trial because, like Dr. Fleischli, Dr. Senica was not disclosed under Federal
Rule of Civil Procedure 26(a)(2).
1
Wheatley argues that Dr. Fleischli’s Statement is not admissible evidence and
cannot be considered by the Court because Wheatley removed Dr. Fleischli
from her witness list. The Statement has been in the record for over a year,
and Wheatley never objected to its admissibility. The Court sees no reason
why Dr. Fleischli’s removal as a trial witness would now effectively delete his
Statement from the record.
2
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which is inconsistent with the medical evidence in the record,
regarding her beliefs about her ability to work with a boot. Such
testimony is not sufficient to stave off summary judgment. See
Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994)
(“Statements of ‘beliefs’ or ‘opinions’ are insufficient to create a
genuine issue of material fact.”).
Wheatley attempts to side-step her lack of evidence by arguing
that she can still show that FCPO violated the ADA by failing to
discuss the possibility of offering her a reasonable accommodation.
However, this argument puts the cart before the horse, as Wheatley
skips the essential question of whether she was actually covered by
the ADA when she was fired. The ADA only covers—and therefore
employers are only required to provide reasonable accommodations
to—qualified individuals with disabilities, meaning people who can
perform the essential functions of their jobs “with or without
reasonable accommodation.” 42 U.S.C. § 12111(8). Wheatley
argued that she could perform the essential functions of her job
with the accommodation of a walking boot, but the Court has now
concluded that Wheatley cannot show that she could have actually
worked with a walking boot, meaning that Wheatley has not shown
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that there was an accommodation that would have allowed her to
work. Consequently, Wheatley has not established that she was
covered by the ADA when she was fired. Therefore, the Court need
not address whether FCPO discussed possible accommodations
with Wheatley. See Basith, 241 F.3d at 930 n.3 (focusing on
whether the plaintiff was a qualified individual with a disability and
declining to address the number of times the plaintiff requested an
accommodation).
For those reasons, FCPO’s Renewed Motion for Summary
Judgment (d/e 52) is GRANTED. The Clerk is directed to close this
case.
ENTER: May 14, 2015
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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