Makeda-Phillips v. Illinois Secretary of State
Filing
88
OPINION: Defendants' Motion to Strike Plaintiff's Declaration (d/e 86 ) is GRANTED. Defendants' Cross-Motion for Summary Judgment (d/e 81 ) is GRANTED as to the federal claims. The Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims. The state law claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's Motion for Summary Judgment (d/e 77 ) is DENIED. This case is CLOSED. Entered by Judge Sue E. Myerscough on 5/29/2015. (ME, ilcd)
E-FILED
Friday, 29 May, 2015 04:56:47 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARION MAKEDA-PHILLIPS,
)
)
Plaintiff,
)
)
v.
)
)
ILLINOIS SECRETARY OF STATE, )
JESSE WHITE, DENISE
)
WESTNEDGE, and MISTY CASKEY,)
)
Defendants.
)
No. 12-3312
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On November 7, 2014, pro se Plaintiff Marion Makeda-Phillips
filed her Fourth Amended Complaint against Defendants Illinois
Secretary of State Jesse White, Denise Westnedge, and Misty
Caskey (d/e 62). Now pending are Plaintiff’s Motion for Summary
Judgment (d/e 77), Defendants’ Cross-Motion for Summary
Judgment (d/e 81), and Defendants’ Motion to Strike Plaintiff’s
Declaration (d/e 86).
The Motion to Strike Plaintiff’s Declaration is GRANTED
because the Declaration is neither an affidavit nor signed under
Page 1 of 43
penalty of perjury and the statements therein contradict Plaintiff’s
deposition testimony. Moreover, because Plaintiff has failed to
produce evidence upon which a jury could find in her favor,
Defendants’ Cross-Motion for Summary Judgment is GRANTED as
to the federal claims, and Plaintiff’s Motion for Summary Judgment
is DENIED. The Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims, and those claims are
dismissed without prejudice.
I. BACKGROUND
Plaintiff began working in the Illinois Secretary of State’s Office
in 1988. In 2009, Plaintiff began working as an Operations
Associate in the Administrative Hearings Department of the
Secretary of State’s office. Defendant Westnedge was Plaintiff’s
supervisor. Defendant Caskey was Westnedge’s assistant and also
functioned as one of Plaintiff’s supervisors. Defendant White is the
Illinois Secretary of State.
Plaintiff indicates in her Motion for Summary Judgment that
she is bringing her Americans with Disabilities Act (ADA) claim only
against her employer, Defendant White. She brings her remaining
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claims against Defendants Westnedge and Caskey in their
individual capacities and Defendant White in his official capacity for
prospective relief only. At the time of Plaintiff’s deposition on
December 17, 2014, Plaintiff was on sick leave but still employed by
the Secretary of State’s Office.
Plaintiff originally filed suit in November 2012. Plaintiff has
several times requested the Court appoint her counsel. See d/e 3,
6, 14. The Court initially denied those requests. However, on
September 3, 2014, United States Magistrate Judge Tom SchanzleHaskins sua sponte reconsidered Plaintiff’s motions requesting
counsel and appointed counsel to represent Plaintiff. On
September 17, 2014, counsel moved to withdraw on the basis that
Plaintiff stated she did not want counsel. On September 30, 2014,
following a hearing, this Court granted the motion to withdraw.
On November 7, 2014, Plaintiff filed her Fourth Amended
Complaint. Plaintiff raises numerous claims purportedly pursuant
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to Title VI, the ADA, and 42 U.S.C. § 1983. See Fourth Am. Compl.
(d/e 62).1 Plaintiff’s allegations can be summarized as follows.
In Count I, Plaintiff alleges that Defendants failed to intervene
to protect Plaintiff from violations of her civil rights and conspired
together to violate her civil rights. Plaintiff alleges she was
suspended twice, once for “not being fast enough to complete mail”
and once for making too “many mistakes and not completing other
duties as assigned.” Fourth Am. Compl. (d/e 62, p. 5 of 20).
Plaintiff alleges she performed her duties in a competent and
satisfactory manner but that she was suspended and refused a
transfer on account of her race and because of her “Americans with
Disability” claims. Id. (d/e 62, p. 6 of 20).
In Count II, Plaintiff alleges that Defendants failed to intervene
to protect Plaintiff from violations of her civil rights, conspired
Plaintiff cites the ERISA statute, but Plaintiff does not bring such a claim.
Plaintiff also cites 42 U.S.C. § 1981. However, § 1983 provides the exclusive
remedy for relief for violations of the rights protected by § 1981 when the claim
is asserted against state actors. Campbell v. Forest Pres. Dist. of Cook Cnty.,
Ill., 752 F.3d 665, 671 (7th Cir. 2014), cert. denied, 135 S. Ct. 947 (2015).
Plaintiff’s § 1983 claim is construed as a claim that Defendants violated
Plaintiff’s rights under the Equal Protection Clause of the Fourteenth
Amendment and/or a § 1981 claim. See Sams v. City of Chi., No. 13-CV-7625,
2014 WL 6685809, at * 6 (N.D. Ill. Nov. 25, 2014)(a § 1983 claim can be based
on a violation of § 1981).
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1
together to violate her civil rights, and breached a written contract
by violating Secretary of State policies regarding oral and written
warnings and suspensions. Plaintiff alleges she helped others with
their job duties, but Plaintiff never received help.
In Count III, Plaintiff alleges that Defendants failed to
intervene to protect Plaintiff from violations of her civil rights,
conspired together to violate Plaintiff’s civil rights, and retaliated
against Plaintiff when she asked for a transfer to a different
department because Plaintiff went to the “human rights and equal
employment office.” See Id. (d/e 62, p. 9 of 20). The retaliation also
included the two job suspensions.
In Count IV, Plaintiff alleges that Defendants failed to
intervene to protect Plaintiff from violations of her civil rights, failed
to provide Plaintiff with necessary medical care, and conspired
together to violate one or more of Plaintiff’s civil rights. Plaintiff also
alleges Defendant White knew about the civil rights violations and
ignored them. According to Plaintiff, Defendant White received
numerous e-mails and a visit from union stewardess Pam
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Fernandez concerning Plaintiff’s civil rights being violated and he
ignored everything.
In Count V, Plaintiff alleges that Defendants failed to intervene
to protect Plaintiff from violations of her civil rights, failed to provide
Plaintiff with necessary medical care, and conspired together to
violate one or more of Plaintiff’s civil rights. Plaintiff asked to be
transferred to Chicago, but these requests were allegedly denied
due to her race and disability. Plaintiff claims that Mary Tumulty
received the Chicago position even though Plaintiff had more “years”
and experience.
In Count VI, Plaintiff alleges that Defendants failed to
intervene to protect Plaintiff from violations of her civil rights and
conspired together to violate one or more of Plaintiff’s civil rights.
Plaintiff asked for help processing the mail, but she was denied help
several times. Plaintiff had to assist other job workers with their
job duties. Plaintiff was threatened with discipline on December 1,
2010. Plaintiff also wrote in her Fourth Amended Complaint:
“Discriminatory Workplace Harassment.” Fourth Am. Compl. (d/e
62, p. 15 of 20). Plaintiff asserts she was threatened with discipline
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by “[D]efendant” on December 1, 2010 and that “Defendant
instructed Plaintiff to put aside her job duties to help others with
their job duties.” See Fourth Am. Compl. (d/e 62, p. 16 of 20).
On October 14, 2014, Judge Schanzle-Haskins extended
discovery to January 28, 2015 and extended the dispositive motion
deadline to February 13, 2015. On December 17, 2014, Defendants
deposed Plaintiff. When questioned about her claims, what
happened, and what evidence she had, Plaintiff responded that she
did not recall or did not remember. In fact, throughout the
deposition, Plaintiff answered that she did not know, did not recall,
or did not remember over 170 times.
One week later, on December 24, 2014, Plaintiff filed her
Motion for Summary Judgment asserting that she is entitled to
judgment as a matter of law. She supports her Motion with various
documents, including unsworn statements, her suspension letters,
e-mails, documents filed in the Illinois Human Rights Commission,
earlier versions of Plaintiff’s complaints, Plaintiff’s request for a
transfer and reasonable accommodation, and documents filed with
the Equal Employment Opportunity Commission (EEOC), such as
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the Charge of Discrimination and the Dismissal and Notice of
Rights. Plaintiff also filed a Declaration (d/e 84).
On February 4, 2015, Defendants filed their response to
Plaintiff’s Motion for Summary Judgment and their Cross-Motion
for Summary Judgment (d/e 81). Defendants also filed a Motion to
Strike Plaintiff’s Declaration (d/e 86). Defendants seek summary
judgment on the basis that Plaintiff has no evidence supporting any
of the claims she makes against Defendants. Defendants also
argue they are entitled to qualified immunity as to the § 1983
claims.2
Defendants attached to their Motion the affidavits of
Defendants Westnedge and Caskey, which provide the following
information.
Westnedge holds the position of “Executive II” with the Illinois
Secretary of State’s Administrative Hearings Department.
Westnedge Aff. ¶ 1, Defs.’ Cross-Motion, Exhibit 2 (d/e 82-2).
Defendants raised numerous affirmative defenses in their Answer, but only
seek summary judgment on the grounds stated herein. See Answer (d/e 69)
(raising as affirmative defenses qualified immunity, Eleventh Amendment
immunity, sovereign immunity, statute of limitations, res judicata, and failure
to exhaust administrative remedies).
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2
Westnedge supervised Plaintiff from 2009 through 2012. Id. ¶¶ 6,
8. Over the course of several years up until the time Plaintiff took
leave, Plaintiff’s work performance was consistently deficient. Id. ¶
7.
Plaintiff’s job duties included handling incoming mail, which
involved opening envelopes, date-stamping correspondence, and
sorting and distributing the mail to the correct individual or section.
Id. ¶ 9. Plaintiff had difficulty completing those tasks on a daily
basis, distinguishing between the various forms used by the
Department, and determining to which person or Department the
form should be delivered. Id. ¶ 10. Plaintiff’s mistakes were
discussed with her personally with no improvement in her
performance. Id. ¶ 15. Plaintiff also received several counseling
sessions for her work deficiencies. Id. ¶ 20.
On May 2, 2011, Plaintiff was orally warned as a form of
discipline with respect to her deficiencies. Id. ¶ 21. On July 28,
2011, Plaintiff received a written warning. Id. ¶ 23. In June 2012,
Plaintiff was suspended from June 25, 2012 through July 4, 2012.
Id.
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Westnedge asserts that Plaintiff’s performance issues
significantly impaired the efficient functioning of the office, resulting
in delayed work and time taken away from supervisors and other
employees’ duties. Id. ¶ 25. Westnedge asserts that Plaintiff’s job
performance reflected that Plaintiff was not qualified to perform the
tasks required of an “operations assistant” in the office. Id. ¶ 26.
In Westnedge’s nearly 20 years of experience in the Department,
“one person has been able to satisfactorily perform in one day the
tasks assigned to” Plaintiff. Id. ¶ 25.
Defendant Caskey is a supervisor of the support services
section of the Administrative Hearings Department. Caskey Aff. ¶¶
1, 2, Defs.’ Cross-Motion, Exhibit 3 (d/e 82-2). Caskey began
working with Plaintiff in 2009. Id. ¶ 5. She functioned as one of
Plaintiff’s supervisors. Id. ¶ 6.
Caskey worked with Westnedge to try to help Plaintiff address
her performance issues. Id. ¶ 7. The entire time Caskey worked
with Plaintiff, Plaintiff had problems handling incoming mail, datestamping correspondence, and sorting and distributing the mail to
the correct individual or section. Id. ¶ 8. After Plaintiff took
Page 10 of 43
medical leave in December 2012, Plaintiff’s job duties were assigned
to another employee in the Department. Id. ¶ 9. That employee
was able to perform Plaintiff’s job in addition to her own job by the
close of business each day. Id. Subsequently, another employee
was given the job of handling the daily mail, and she, too, has been
able to complete those duties in addition to other assigned duties.
Id.
After Defendants filed their Cross-Motion for Summary
Judgment, the Court sent Plaintiff a notice that the motion had
been filed and gave Plaintiff the following admonition:
When a motion for summary judgment is made and
properly supported, you must not simply rely upon the
allegations made in your complaint. Rather, you must
respond by affidavit(s) or as otherwise provided in Rule
56 of the Federal Rules of Civil Procedure, a copy of
which is attached. Your response must set forth specific
facts showing that there is a genuine issue of material
fact for trial. If you do not submit affidavits or other
documentary evidence contradicting the defendants’
assertions, the defendants’ statement of facts will be
accepted as true for purposes of summary judgment.
See Rule 56 Notice (d/e 83).
On February 25, 2015, Plaintiff filed a response to Defendants’
Cross-Motion for Summary Judgment (d/e 85). Plaintiff argues
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that Defendants distort the facts, that Plaintiff does not have a
photographic memory of the events, and that there are genuine
issues of material fact such that the Court should grant Plaintiff’s
Motion for Summary Judgment. Plaintiff attached a December 21,
2012 document from her psychiatrist, Dr. Obul Reddy, stating that
Plaintiff “has decompensated” and that he advised her to go on a
medical disability leave from work for six months. See Letter (d/e
85, p. 3 of 16). Plaintiff also attached portions of the Office of
Secretary of State Policy Manual. Attachment (d/e 85, pp. 4-16).
II. DEFENDANTS’ MOTION TO STRIKE
PLAINTIFF’S DECLARATION
On February 25, 2015, Plaintiff submitted what she titled a
Declaration, although it is neither notarized nor sworn in
conformance with 28 U.S.C. § 1746, which requires that a declarant
declare “under penalty of perjury that the forgoing is true and
correct.”3 In the Declaration, Plaintiff states the following.
Interestingly, Plaintiff attached a different declaration to her Motion for
Summary Judgment (filed December 24, 2014) which she purported to sign
under penalty of perjury. See Declaration (d/e 77 p. 11 of 18). In that
document, she states she has personal knowledge of the facts and
circumstances “set forth below” but the only fact listed is that the declarant is
the Plaintiff in the case. Id.
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3
In January 2010, three weeks after she began working in the
Administrative Hearings Department, Plaintiff was told she was
making too many mistakes and not working fast enough. Deputy
Director Jay Mesi told Plaintiff he would write her up and get her
fired. During another meeting, Mesi told Plaintiff his dog could
process the mail better than she could. Defendants Westnedge and
Caskey constantly claimed Plaintiff made errors and did not work
fast enough, but no investigation was made into their claims.
Defendants Westnedge’s and Caskey’s constant harassment caused
Plaintiff’s major depressive disorder. Plaintiff asked many times for
a transfer to another Department. See Declaration (d/e 84).
Defendants ask the Court to strike Plaintiff’s Declaration.
Defendants assert that the Declaration purports to state Plaintiff’s
recollection of certain events. Aside from the fact that the
Declaration contains a hearsay statement from a witness who was
never disclosed as a possible witness and whose role in the events
is not clearly identified, Defendants assert that Plaintiff cannot
defeat a motion for summary judgment by contradicting deposition
testimony with a later-filed contradictory affidavit.
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Plaintiff responds to the Motion to Strike by stating additional
facts (such as that “Jeanine Stroger failed to properly investigate all
of Plaintiff’s allegations of discrimination and harassment”) and
attaching additional documents. See Pl.’s Resp. to Mot. to Strike
(d/e 87). The documents include letters pertaining to two
suspensions—April 3, 2012 (a three-day suspension) and June 22,
2012 (an eight-day suspension); a page from a document submitted
to the Illinois Department of Human Rights; and a page from a May
18, 2012 e-mail to the union job steward from Deputy Director Mesi
regarding Plaintiff’s grievance and setting forth the reasons
management did not agree with the alleged violation.
The Court strikes the Declaration for two reasons. First, it is
neither an affidavit nor a declaration as required by Federal Rule of
Civil Procedure 56(c)(4) because it is not notarized or signed under
penalty of perjury pursuant to 28 U.S.C. § 1746. See Hu v. Vill. of
Maywood, No. 07-CV-7203, 2010 WL 276704, at *5 (N.D. Ill. Jan.
19, 2010) (striking affidavit that was neither notarized nor
contained the requisite “under penalty of perjury” language required
by 28 U.S.C. § 1746); see also Advisory Committee Notes, 2010
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Amendments to Federal Rule of Civil Procedure 56(c)(4) (noting that
a formal affidavit is no longer required and that 28 U.S.C. § 1746
allows for written unsworn declarations “subscribed in proper form
as true under penalty of perjury to substitute for an affidavit”).
Second, a party cannot generally create an issue of fact by
submitting an affidavit that contradicts prior deposition testimony.
Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000)
(quoting Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir.
1996) (noting that “[t]he concern in litigation, of course, is that a
party will first admit no knowledge of a fact but will later come up
with a specific recollection that would override the earlier
admission”). Exceptions to this rule include contradictory affidavits
based on newly discovered evidence or affidavits that clarify
ambiguous or confusing deposition testimony. Buckner, 75 F. 3d
at 292.
In this case, Plaintiff offers no reason why she could not
remember any details about her claims at her deposition but could
remember specifics about her claims a few months later in a
Declaration. Her claim in her response to the Cross-Motion for
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Summary Judgment that she does not have a photographic memory
does not explain why she remembered the details a few months
after her deposition. See Pl.’s Resp. (d/e 85).
At her deposition, Plaintiff was asked who harassed her, who
threatened her with discipline, how she was threatened, and when
she was threatened. Dep. Tr. 37-38 (d/e 82-1). Plaintiff responded
to each question that she did not remember or did not recall. Id.
However, in her Declaration, Plaintiff stated that in various
meetings, Deputy Director Mesi told Plaintiff he would write her up
and get her fired and that his dog could process the mail better
than she could. See Declaration (d/e 84).
Plaintiff also stated in the Declaration that Defendants
Westnedge and Caskey constantly claimed that Plaintiff made errors
and was not working fast enough but no investigation was made.
However, at her deposition, Plaintiff could not recall how
Defendants Westnedge and Caskey discriminated against her and
could not remember the extreme and outrageous conduct she
claims to have suffered. Dep. Tr. 21, 27 (d/e 82-1).
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Therefore, because the statements in the Declaration
contradict Plaintiff’s deposition testimony, the Motion to Strike is
granted. 4 See, e.g., Clark v. Takata Corp., 192 F.3d 750, 761 (7th
Cir. 1999) (finding the district did not abuse its discretion in
striking the affidavit from consideration at summary judgment
where the deponent testified she did not recall anything about the
lap belt and did not recall cutting, removing, or unlatching the belt
but stated in her affidavit that she did not cut or otherwise release
the lap belt); Buckner, 75 F.3d at 292 (district court did not abuse
its discretion by striking an affidavit that was very specific—
describing the object the plaintiff stepped on as an object
“felt to be about the size of a ladies’ watch”—which contradicted her
earlier deposition testimony that she did not know what the object
was, only that it was “something uneven and faulty” and a “lump,”
when the specificity was necessary to establish a causal link);
Northbound Group, Inc. v. Norvax, Inc., 5 F. Supp. 3d 956, 964
(N.D. Ill. 2013) (finding statements in the affidavit did not create a
In any event, the Court does not find that the Declaration supports either
Plaintiff’s Motion for Summary Judgment or opposition to Defendants’ CrossMotion for Summary Judgment.
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4
material disputed fact where the plaintiffs’ officers did not attempt
to explain how or why they recalled the representations made by
the defendants’ executives in their affidavits when they did not
recall the representations during their depositions).
III. LEGAL STANDARD ON SUMMARY JUDGMENT
Summary judgment is proper if the movant shows that no
genuine dispute exists as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
When ruling on a motion for summary judgment, the court must
consider the facts in the light most favorable to the nonmoving
party, drawing all reasonable inferences in the nonmoving party’s
favor. Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir. 2008).
The movant bears the initial responsibility of informing the
court of the basis for the motion and identifying the evidence the
movant believes demonstrates the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“There is no genuine issue of material fact when no reasonable jury
could find in favor of the nonmoving party.” Brewer v. Bd. of Trs. Of
the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007).
Page 18 of 43
However, when the nonmovant bears the ultimate burden of
persuasion on a particular issue, the movant need only show there
is an absence of evidence to support the nonmovant’s case.
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quoting
Celotex, 477 U.S. at 325). The nonmovant must then produce
evidence, such as affidavits, depositions, or answers to discovery, to
show that there is evidence upon which a jury could find in her
favor. Modrowski, 712 F.3d at 1169 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251 (1986)).
The non-moving party cannot rest on the allegations in her
complaint but must offer support for those allegations. See Mosley
v. City of Chi., 614 F.3d 391, 400 (7th Cir. 2010). Moreover, a court
may only consider admissible evidence when reviewing a motion for
summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th
Cir. 2009).
In addition, the court is only required to consider the material
specifically cited to by the parties, although the court may consider
other materials in the record. Fed. R. Civ. P. 56(c)(3). Nonetheless,
a district court is “not required to scour every inch of the record for
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evidence that is potentially relevant to the summary judgment
motion.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898
(7th Cir. 2003); Greer v. Bd. of Educ. of City of Chi., Ill., 267 F.3d
723, 727 (7th Cir. 2001) (noting, in a pro se case, that employment
discrimination cases are fact-intensive, that a court is not required
to scour the record looking for factual disputes, and “a lawsuit is
not a game of hunt the peanut”). The Seventh Circuit has described
summary judgment as the “put up or shut up moment in a lawsuit,
when a party must show what evidence it has that would convince
the trier of fact to accept its version of the events.’” Steen v. Myers,
486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).
IV. ANALYSIS
The Court concludes that Plaintiff has not submitted
admissible evidence to show that no genuine issue of material fact
exists and that she is entitled to summary judgment as a matter of
law. Similarly, Plaintiff has not pointed to admissible evidence that
demonstrates that genuine issues of material fact exist that would
require denying Defendants’ Motion for Summary Judgment.
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Therefore, Defendants are entitled to summary judgment on
Plaintiff’s federal claims. The Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims.
A.
Defendants are entitled to summary judgment on
Plaintiff’s race and disability discrimination and
harassment claims.
In her Fourth Amended Complaint, Plaintiff alleges that
Defendants discriminated against Plaintiff due to her race and her
disability. Specifically, Plaintiff alleges her two suspensions and the
denials of requests for a transfer were due to race and disability
discrimination.
To avoid summary judgment on a discrimination claim
brought under Title VII, 42 U.S.C. § 1983, or the ADA, the same
requirements apply: the plaintiff must point to direct or
circumstantial evidence of discriminatory motivation to create a
triable issue (the direct method) or establish a prima facie case of
discrimination under the McDonnell Douglas (McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)) formula (the indirect method).
Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 850 and n.7
(7th Cir. 2010) (the same requirements apply to Title VII, § 1981,
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and § 1983 discrimination claims); see also Hoffman v. Caterpillar,
Inc., 256 F.3d 568, 572 (7th Cir. 2001) (direct and indirect methods
of proof apply in an ADA discrimination claim). It is unclear which
method Plaintiff is attempting to use.
There are two ways a plaintiff can prove discrimination via the
direct method: (1) direct evidence; and (2) circumstantial evidence.
Goetz v. City of Springfield, 699 F. Supp. 2d 1066, 1076 (C.D. Ill.
2010). The direct method of proof requires either an admission of
discriminatory intent by the defendant or circumstantial evidence
that points directly to a discriminatory reason for the defendant’s
action. Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490
(7th Cir. 2007)(citing Luks v. Baxter Healthcare Corp., 467 F.3d
1049,1052 (7th Cir. 2006)). Such circumstantial evidence can take
many forms,
including suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed at
other employees in the protected group, evidence showing
that similarly situated employees outside the protected
class received systematically better treatment, and
evidence that the employee was qualified for the job in
question but was passed over in favor of a person outside
the protected class and the employer’s reason is a pretext
for discrimination.
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Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir. 2010)
(internal quotation marks omitted) (quoting Sun v. Bd. of Trs., 473
F.3d 799, 812 (7th Cir. 2007). The circumstantial evidence that is
offered Amust >point directly to a discriminatory reason for the
employer’s action.=@ Van Antwerp, 627 F.3d at 298 (quoting Adams
v. WalBMart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)). A
plaintiff proceeding under the direct method, whether relying on
direct evidence or circumstantial evidence, can avoid summary
judgment if she shows there is a triable issue on whether the
adverse employment action had a discriminatory motivation. Rudin
v. Lincoln Land Cmty. Coll., 420 F.3d 712, 721 (7th Cir. 2005)
(quoting Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397
(7th Cir. 1997).
Plaintiff has not presented evidence of an outright admission
by Defendants that shows the challenged actions were taken
because of Plaintiff’s race or alleged disability. Moreover, Plaintiff
has not pointed to any evidence or made any argument that there is
circumstantial evidence that points to a discriminatory reason for
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the suspensions and denial of a transfer. Therefore, Plaintiff cannot
show a triable issue exists under the direct method.
Plaintiff can also survive a motion for summary judgment by
using the indirect method of proof. To do so, Plaintiff must first
establish a prima facie case by establishing (1) she was a member of
a protected class; (2) she was meeting the employer’s legitimate
expectations; (3) she suffered an adverse employment action; and
(4) other similarly situated employees who were not members of the
protected class were treated more favorably. See Egonmwan, 602
F.3d at 850. Once she establishes her prima facie case, the burden
shifts to Defendants to provide a legitimate, nondiscriminatory
reason for their actions. Id. Plaintiff must then rebut Defendants’
stated reason with evidence that it is just a pretext for race or
disability discrimination. Id.
Defendants argue that Plaintiff has no admissible evidence to
establish a prima facie case of race or disability discrimination. The
Court agrees.
Even assuming Plaintiff could prove the other elements of her
prima facie case, a matter the Court does not decide, Plaintiff has
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not shown that similarly situated coworkers were treated more
favorably. A plaintiff need not produce a “clone”. Chaney v.
Plainfield Healthcare Ctr., 612 F.3d 908, 916 (7th Cir. 2010).
However, to show that a co-worker is similarly situated, a plaintiff
must establish that the individual is “directly comparable to her in
all material respects.” Patterson v. Avery Dennison Corp., 281 F.3d
676, 680 (7th Cir. 2002). In disciplinary cases, a plaintiff must
show that the allegedly similar “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.” Peele v. Country Mut. Ins. Co., 288 F.3d 319,
330 (7th Cir. 2002) (quoting Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617-18 (7th Cir. 2000)); see also, e.g., Jordan v. City of
Gary, Ind., 396 F.3d 825, 834 (7th Cir. 2005) (stating that under
the indirect method, plaintiff had to establish that the person
promoted was outside of the plaintiff’s protected class, occupied the
same job level, engaged in similar past misconduct, but was treated
more favorably for no legitimate reason).
Page 25 of 43
No such evidence is presented here. Plaintiff has not
presented any admissible evidence of similarly situated white or
nondisabled employees who engaged in similar conduct but were
not disciplined or who received a transfer. See Gunville v. Walker,
583 F.3d 979, 985 (7th Cir. 2009) (holding that “a court may
consider only admissible evidence in assessing a motion for
summary judgment”).
At her deposition, Plaintiff was asked if any white employees
were treated more favorably than she was treated. Plaintiff
responded, “I do not remember.” d/e 82-1 p. 27. Nonetheless,
Plaintiff submitted an Affidavit dated April 10, 2012 to the State of
Illinois Human Rights Commission, which she attaches as Exhibit
26 to her Motion for Summary Judgment. In that Affidavit, Plaintiff
asserted that Joyce Byrd, Linda Hawks, and George Teator told
Plaintiff that Dawn Meyer and Mary Schnapp, white employees who
had the job before Plaintiff, did not complete the mail on a daily
basis and received help in completing the mail. Ex. 26 ¶¶ 8, 9.
However, this statement is hearsay and not admissible. Gunville,
583 F.3d at 985 (“A party may not rely upon inadmissible hearsay
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to oppose a motion for summary judgment”). Plaintiff also attaches
a statement from Byrd (complaining about her own written warning)
which is neither notarized nor made under penalty of perjury.
Therefore, that statement is also not admissible.
Plaintiff suggests that other employees received help with the
mail, and she did not receive help. However, she provides no other
information about these employees to show that they were similarly
situated to Plaintiff.
Plaintiff attaches to her Motion for Summary Judgment an email referencing a going-away party for Mary Tumulty, who
accepted a transfer to the Chicago office. See Pl.’s Mot. Ex. 6 (d/e
77-1 (dated October 2, 2012). It appears the position was
Operations Associate, the same position Plaintiff held. See Pl.’s
Motion for Summary Judgment, Attachment (d/e 77-3 page 24 of
33). Plaintiff also included a “To Whom it May Concern” statement
signed by Plaintiff indicating that Tumulty is a white female working
in the Secretary of State’s Administrative Hearings Department in
Chicago. See Id. (d/e The statement is neither notarized nor
signed under “penalty of perjury.” See 28 U.S.C. § 1746. But even
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accepting such evidence, Plaintiff has not pointed to any evidence
that Tumulty was a similarly-situated coworker, such as evidence
about Tumulty’s qualifications. Moreover, at her deposition,
Plaintiff could not even remember what transfer Plaintiff requested,
when or how she requested a transfer, what the position was,
whether she was qualified for the position, or whether she was
officially denied the position. Dep. Tr. 36-37.
Even if Plaintiff could establish a prima facie case of race or
disability discrimination, Defendants have offered a legitimate,
nondiscriminatory reason for their actions. Brewer, 479 F.3d at
915 (noting it did not matter whether Plaintiff had established a
prima facie case because the defendant offered a legitimate,
nondiscrimination reason for its actions). Defendants assert that
Plaintiff was unable to perform her job duties and was not qualified
to perform the tasks required of an Operations Assistant.
Westnedge Aff. ¶¶ 10, 12, 15, 16, 17, 18, 19, 25, 26.
Because Defendants articulated a legitimate, nondiscriminatory reason for their actions, Plaintiff must show pretext.
The focus of the pretext inquiry is whether the stated reason is
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honest, not whether the decision is accurate or wise. Bates v. City
of Chi., 726 F.3d 951, 956 (7th Cir. 2013). To show pretext,
Plaintiff must show that the reasons for her suspensions or the
denial of her transfer (1) had no basis in fact; (2) did not actually
motivate the adverse employment action; or (3) were insufficient to
motivate the action. Widmar v. Sun Chem. Corp., 772 F.3d 457,
465 (7th Cir. 2014), petition for cert. filed. Plaintiff has failed to
present any evidence that would show that a genuine issue of
material fact exists that Defendants’ articulated reasons for their
actions were pretext for discrimination.
Similarly, to the extent Plaintiff alleges a racial harassment
claim, Plaintiff has not pointed to evidence of harassment that is
race-based, severe, or pervasive. See, Pantoja v. Am. NTN Bearing
Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (affirming summary
judgment on harassment claim on the ground that a few isolated
incidents does not constitute conduct that is severe or pervasive, as
required for a harassment claim); Peters v. Wal-Mart Stores East
LP, 512 F. App’x 622, 627 (7th Cir. 2013) (finding the plaintiff failed
to establish a prima facie case of racial harassment where she had
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no evidence that the reprimands were race-based and the discipline
was an isolated incident and not pervasive or severe enough to
constitute an objectively hostile work environment). In fact, at her
deposition, Plaintiff could not recall or remember what evidence she
had that she was harassed, who harassed her, who threatened to
discipline her, how she was threatened, and when she was
threatened. Dep. Tr. 37-38. Plaintiff attached e-mails to her
Motion for Summary Judgment, but nothing in those e-mails shows
pervasive or severe harassment. See Pl.’s Mot. for Summ. J., Ex. 31
(d/e 77-1 p. 29 or 35); Ex. 46 (d/e 77-2 page 12 of 36); Ex. 47 (d/e
77-2 page 13 of 36).
The Seventh Circuit has not yet decided whether a hostile
work environment claim is actionable under the ADA. See
Holyfield-Cooper v. Bd. of Educ. of the City of Chi., -- F. App’x ---,
2015 WL 669963, at *4 (Feb. 18, 2015) (merely assuming a plaintiff
could bring hostile work environment claim under the ADA); Lloyd
v. Swifty Transp., Inc., 552 F.3d 594, 603 (7th Cir. 2009 (“We have
not decided whether allowing a hostile work environment is
actionable under the ADA”). Even assuming Plaintiff can make
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such a claim, she has failed to offer evidence suggesting that the
work environment was subjectively and objectively hostile and
abusive. Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005) (a
plaintiff must show that the hostile work environment is both
subjectively and objectively hostile); Bennington v. Caterpillar, Inc.,
275 F.3d 654, 660 (7th Cir. 2001) (involving a claim that the work
environment was hostile because of the plaintiff’s age).
Therefore, because Plaintiff has failed to present evidence
demonstrating a genuine issue of material fact exists, Defendants
are entitled to summary judgment on Plaintiff’s discrimination and
harassment claims.
B.
Defendants are entitled to summary judgment on
Plaintiff’s retaliation claims.
Plaintiff also alleges in her Fourth Amended Complaint that
she was retaliated against because she “went to” the Human Rights
Commission and EEOC. Plaintiff attached to her Motion for
Summary Judgment a document from the EEOC, showing a date of
filing as March 29, 2011. Pl.’s Mot. for Summ. J., Attachment (d/e
77-4 p. 10 of 15). Plaintiff also attached documents relating to the
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Illinois Human Rights Commission, one of which suggests a date of
filing of July 2011 and one of which suggests a date of filing after
August 2012. See Id. Exhibit 40 (d/e 77-4 p. 12 of 15). Plaintiff
asserts that the retaliation consisted of her suspensions (which
occurred on April 3, 2012 and June 22, 2012) and the denial of her
requests for transfer (she made at least one request in September
2012). See Id. Transfer Request (d/e 77-3, p. 25 of 33).
A claim of retaliation, whether under Title VII or the ADA can
be proved using the direct or indirect method of proof described
above. Humphries v. CBOCS West Inc., 474 F.3d 387, 404 (7th Cir.
2007) (Title VII and § 1981); Dickerson v. Bd. of Trs. of Cmty. Coll.
Dist. No. 522, 657 F.3d 595, 601-02 (7th Cir. 2011) (ADA). Plaintiff
cannot bring a claim for retaliation under § 1983 pursuant to the
Equal Protection Clause. See Boyd v. Ill. State Police, 384 F.3d
888, 898 (7th Cir. 2004) (noting that “the right to be free from
retaliation may be vindicated under the First Amendment or Title
VII, but not the equal protection clause”); Tate v. Ancell, 551 F.
App’x 877, 898 (7th Cir. 2014) (unpublished).
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Under the direct method, Plaintiff has to present direct or
circumstantial evidence that she was retaliated against because she
engaged in protected activity. Under the indirect method, Plaintiff
has to show (1) that she engaged in protected activity, such as filing
a charge of discrimination; (2) that she performed her job
satisfactorily; (3) that she suffered an adverse employment action;
and (4) that she was treated less favorably than other similarly
situated employees who did not engage in protected activity.
Mannie, 394 F.3d at 98; Squibb v. Memorial Med. Cent., 497 F.3d
775, 788 (7th Cir. 2007). If Plaintiff can establish her prima face
case under the indirect method, Defendants must articulate a
legitimate, nondiscriminatory reason for the employment action.
Mannie, 394 F.3d at 984. Once Defendants do so, Plaintiff must
show that Defendants reasons are pretextual. Id.
As the Court found with respect to Plaintiff’s claims of race
and disability discrimination, the Court finds Plaintiff has not
pointed to any direct or circumstantial evidence that she was
retaliated against because she engaged in a protected activity.
Similarly, Plaintiff has not pointed to evidence that she was treated
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less favorably than other similarly-situated employees who did not
engage in protected activity. Finally, Plaintiff has not provided any
evidence to rebut as pretext Defendants’ stated reason for the
employment actions that Plaintiff was not performing her job duties
satisfactorily and was not qualified for the position of Operations
Associate. Therefore, Defendants are entitled to summary judgment
on Plaintiff’s retaliation claims.
C.
Defendant White is entitled to summary judgment on
Plaintiff’s ADA failure to accommodate claim.
Plaintiff also alleges that her employer, Defendant White, failed
to provide a reasonable accommodation in the form of a transfer in
violation of the ADA. The proper defendant in an ADA claim is the
plaintiff’s employer, and supervisors are not personally liable under
the ADA. See 42 U.S.C. § 12112(a) (“No covered entity shall
discriminate against a qualified individual on the basis of
disability”); 42 U.S.C. § 12111(2) (definition of “covered entity”
includes “an employer, employment agency, labor organization, or
joint labor-management committee”); Silk v. City of Chicago, 194
F.3d 788, 797 n. 5 (7th Cir. 1999) (holding that “a supervisor
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cannot be held liable in his individual capacity under the ADA”).
The State of Illinois has waived Eleventh Amendment immunity
with respect to the ADA. See 745 ILCS 5/1.5(d) (providing that a
State employee, former employee, or prospective employee may
bring an action under the ADA in State circuit court or federal
court).
The ADA prohibits employment discrimination against
disabled employees. Discrimination includes failing to make
“reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability.” 42
U.S.C. § 12112(b)(5)(A).
An individual is disabled under the ADA if she (1) has “a
physical or mental impairment that substantially limits one or more
major life activities of such individual; (2) has “ record of such an
impairment”; or (3) is “regarded as having such an impairment.” 42
U.S.C. § 12102(1). Plaintiff bases her claim on the first definition.
To defeat Defendants’ motion for summary judgment, Plaintiff
must present the Court with evidence that, if believed by the trier of
fact, would establish the elements of her claim. Kotwica v. Rose
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Packing Co., Inc., 637 F.3d 744, 748 (7th Cir. 2011); see also
McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1164 (7th Cir.
1997) (the plaintiff bears the burden of “at least creating a genuine
issue of material fact as to whether” she is a qualified individual
with a disability). Therefore, Plaintiff must show a genuine issue of
material fact exists on whether: (1) she is a qualified individual with
a disability, meaning she can perform the essential functions of the
job with or without a reasonable accommodation; (2) her employer
was aware of her disability; and (3) her employer failed to
reasonably accommodate her disability. Kotwica, 637 F.3d at 74748. 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).
Defendant White asserts that Plaintiff has submitted no
admissible evidence that she suffered from depression. Defendant
White also asserts that Plaintiff has not demonstrated in the record
that her depression substantially limits her ability to perform a
major life activity. Finally, Defendant White argues that the failure
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to be able to work with a particular supervisor does not establish
that Plaintiff is disabled. Defendant White notes that the
significance of the documents Plaintiff submits are not explained
and the documents are not accompanied by any evidentiary
foundation with respect to their authenticity.
The Court agrees with Defendant White that many of the
documents Plaintiff attaches to her pleadings are not authenticated.
See Gunville, 583 F.3d at 985 (holding that “a court may consider
only admissible evidence in assessing a motion for summary
judgment”). In addition, one of the documents submitted references
a different disability than Plaintiff is claiming. Plaintiff claims she
suffers from major depression disorder. Plaintiff’s Request for
Reasonable Accommodation dated August 23, 2012, which is signed
by a physician, asserts Plaintiff suffers from acute stress disorder.
d/e 77-4.
Even assuming Plaintiff suffers from depression, merely
having a medical condition is not enough for Plaintiff to be
considered disabled. Powers v. USF Holland, Inc., 667 F.3d 815,
819 (7th Cir. 2011). To get past summary judgment, Plaintiff must
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demonstrate in the record that her depression substantially limits
her ability to perform a major life activity. See Schneiker v. Fortis
Ins. Co., 200 F.3d 1055, 1061 (7th Cir. 2000).
Depending on the severity, depression can cause a substantial
limitation on a major life activity. Cassimy v. Bd. of Educ. of
Rockford Public Schs., Dist. No. 205, 461 F.3d 932, 936 (7th Cir.
2006). “The critical question in every case is what was the effect of
the impairment on the life of the individual.” Id.
Major life activities include “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” 42 U.S.C.
§ 12102(2)(A). A major life activity also includes “the operation of a
major bodily function,” including neurological and brain functions.
42 U.S.C. § 12102(2)(B).
Although the mental or physical impairment must
“substantially limit” a major life activity for an individual to be
considered disabled, the 2008 amendments to the ADA clarified
that the term “substantially limit” should be broadly construed in
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favor of expansive coverage. See 42 U.S.C. § 12102(4); ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553
(providing that the term “substantially limits” should be construed
consistent with the findings and purposes of the ADA Amendments
Act of 2008); see also 29 C.F.R. § 1630.2(j)(1)(i) (providing that the
term “substantially limits” is “not meant to be a demanding
standard”). A person with an impairment that substantially limits a
major life activity is disabled even if the impairment is transitory or
minor. Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th
Cir. 2013) (citing 42 U.S.C. § 12102(3)(B)).
Even under this broader definition of “substantially limits,”
Plaintiff has presented no evidence to support her claim that her
depression substantially limits one or more major life activities.
When asked in her deposition to describe her major depressive
disorder, Plaintiff responded, “I do not recall.” Page 29; see also
Dep. Tr. 21 (when asked what her disability was, she testified she
did not remember).
Defendants tried to question Plaintiff during her deposition
about how her physical or mental impairment substantially limited
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one or more major life activities. She testified she could drive, read,
and did not have any problem with her eyesight (except that she
wore glasses). Dep. Tr. 23. Plaintiff could not recall whether, at the
time in question, she could wash dishes, make a bed, make meals,
comb her hair, brush her teeth, bathe herself, or go to the bathroom
without assistance. Id. at 23-24. She could not recall if anything
was wrong with her hearing, whether she had trouble walking,
whether she had trouble speaking, or whether she had trouble
breathing. Id. at 24-25. Plaintiff could not remember if any mental
health professional told her there was anything wrong with her
cognitive functioning. Id. at 25. Plaintiff could not recall how her
condition affected her ability to perform a job. Id.
The Court notes that Plaintiff is currently on sick leave from
her job (according to Plaintiff’s deposition testimony). Dep. Tr. at 16.
But the Court does not have additional information about Plaintiff’s
sick leave. Plaintiff did not remember how long she had been on
sick leave and only stated she was under the care of a therapist or
psychiatrist. Id. at 16-18.
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Plaintiff also submitted with her Motion for Summary
Judgment a document that suggests Plaintiff did not have any
restrictions. The Request for Reasonable Accommodation form
completed by Plaintiff’s physician indicates that Plaintiff had no
work or job restrictions except that she needed to work for a
different supervisor. See d/e 77-4. However, the Seventh Circuit
has held that if a plaintiff “can do the same job for another
supervisor, she can do the job, and does not qualify under the
ADA.” Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th Cir.
1996); Schneiker, 200 F.3d at 1062 (“Standing alone, a personality
conflict between an employee and a supervisor—even one that
triggers the employee’s depression—is not enough to establish the
employee is disabled, so long as the employee could still perform
the job under a different supervisor”). Although these cases predate
the 2008 amendments to the ADA, courts continue to apply them.
See Pack v. Ill. Dep’t of Healthcare & Family Servs., No. 13-CR8930, 2014 WL 3704917, at *3 (N.D. Ill. July 25, 2014) (finding the
plaintiff did not sufficiently allege she was disabled where she
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alleged her disability arose only in the presence of a single
supervisor).
Therefore, the Court finds Defendant White is entitled to
summary judgment on Plaintiff’s ADA failure-to-accommodate
claim.
D.
The Court declines to exercise jurisdiction over Plaintiff’s
state law claims.
Because the federal claims are dismissed, the Court declines
to exercise supplemental jurisdiction over Plaintiff’s state law claims
of breach of contract and negligent and intentional infliction of
emotional distress.
V. CONCLUSION
For the reasons stated, Defendants’ Motion to Strike
Plaintiff’s Declaration (d/e 86) is GRANTED. Defendants’ CrossMotion for Summary Judgment (d/e 81) is GRANTED as to the
federal claims. The Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims. The state law
claims are DISMISSED WITHOUT PREJUDICE. Plaintiff’s
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Motion for Summary Judgment (d/e 77) is DENIED. This case
is CLOSED.
ENTER: May 29, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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