Barry v. Illinois Department of Corrections

Filing 88

ORDER denying 84 , Defendants' combined Motion for Judgement as a Matter of Law and Motion for a New Trial. See full written Order. Entered by Judge Michael M. Mihm on 3/7/2019. (RT, ilcd)

E-FILED

Thursday, 07 March, 2019 01:36:09 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MONICA LYNN BARRY,
Plaintiff,
Case No. 1:14-cv-03199-MMM-TSH
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendant.

ORDER
Before the Court is the Defendant’s, the Illinois Department of Corrections (“IDOC”),
combined Motion under Federal Rules of Civil Procedure 50(b) and 59. (D. 84). 1 IDOC also
submitted a supporting memorandum thereto. (D. 83). The Plaintiff, Monica Lynn Barry, filed a
Response. (D. 85). In brief, after the Plaintiff obtained a verdict against the Defendant at trial in
this Court, the Defendant now argues that they are entitled to judgment as a matter of law and,
alternatively, that they are entitled to a new trial. For the reasons set forth below, the Defendant’s
Motion (D. 84) is DENIED.
BACKGROUND

The Plaintiff filed suit against the Defendant, alleging violations of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et. seq., and Title VII, 42 U.S.C. § 2000e,
et seq. (D. 13 at pg. 1). She claimed the Defendant’s refusal to make a reasonable
accommodation for her resulted in her constructive discharge from her position as a correctional

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Citations to the Docket in this case are abbreviated as “D. __.”

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officer with the IDOC and that the Defendant discriminated against her on the basis of her
disability (asthma) and gender.
The Plaintiff worked for the Defendant as a correctional officer at the Logan Correctional
Center. In February 2013, IDOC granted her leave under the Family Medical Leave Act (29
U.S.C. § 2601, et seq.) due to her asthma, which rendered her partially unable to do her job. Her
asthma was exacerbated by potential irritants, specifically pepper spray. Although the Plaintiff
was never exposed to the spray at work, it was used with some frequency at Logan. The Plaintiff
requested a transfer to Lincoln Correctional Center in May 2013. She claimed pepper spray was
used less often at Lincoln. The Defendant denied her request.
By July 2013, the Plaintiff submitted statements to the Defendant from physicians
supporting her position that avoiding exposure to pepper spray necessitated a medical leave of
absence until she could be reassigned accordingly. The Defendant gave the Plaintiff a leave of
absence on July 21, 2013. Separately, the Plaintiff asked the Defendant to grant her two
reasonable accommodations: (1) permanent assignment away from regular prisoner contact to
reduce or eliminate her chances of exposure to pepper spray and (2) to carry a protective mask
for utilizing in the event that she was in the vicinity of deployed pepper spray. These requests
were recommended by her doctor. She provided the Defendant with the relevant documentation.
The Defendant denied the Plaintiff’s requests. She ultimately resigned from her position as a
correctional officer, effective July 17, 2015.
In July 2018, the Court presided over the jury trial in this matter. Relevant to the pending
Motion, the Plaintiff presented evidence regarding her accommodation requests—reassignment
to Lincoln, permanent assignments involving less contact with prisoners, and carrying a
protective mask—and the Defendant’s subsequent denials of each. The former acting warden of

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Logan testified that it was IDOC policy to warn personnel, when practicable, about pepper spray
use beforehand so they could don a protective mask or leave the vicinity before it was disbursed.
The Defendant, however, disputed whether anyone could properly affix a protective mask in
sufficient time when pepper spray was deployed without warning. The effectiveness of a
protective mask in response to pepper spray—even for someone with asthma—was affirmed by
an IDOC employee’s testimony. The Defendant also presented testimony in support of their
claim that carrying a protective mask in the prison was a security risk. The Plaintiff argued
otherwise, claiming such a measure was a reasonable accommodation of her disability.
After the parties finished presenting evidence, the Defendant moved for judgment as a
matter of law, pursuant to Federal Rule of Civil Procedure 50(a) on both of the Plaintiff’s claims.
The Court granted the Defendant’s Rule 50(a) motion and dismissed the Plaintiff’s gender
discrimination claim (D. 87 at pg. 7), but denied it as to her ADA claim (Id. at pg. 11). (See also,
the Court’s July 17, 2018 Minute Entry). The Court explained that the evidence presented up to
that point had established that the Plaintiff’s accommodation requests changed over time. (D. 87
at pp. 8-9). The Court noted that as her request “developed, [ ] the issue was could there be a gas
mask made available to her where she was assigned so, if there was a situation, she could put on
the gas mask or maybe even be removed from the area as the warden—one warden suggested.”
Id. at pg. 9.
In making their argument that the Plaintiff’s ADA claim should be dismissed as a matter
of law, the Defendant’s sole assertion was that the Plaintiff failed to establish that she could
perform the essential functions of her job—a necessary component of an ADA claim. (D. 87 at
pp. 9-11). The Defendant emphasized that the evidence established that the Plaintiff was only
willing to accept certain assignments as a correctional officer. In their view, this conflicted with

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the standard enunciated in Miller v. Illinois Dept. of Corrections, 107 F. 3d 483 (7th Cir. 1997),
and therefore, the Plaintiff did not qualify as having a disability under the ADA. Id.
The jury found in favor of the Plaintiff on her ADA claim and awarded her $150,000 in
compensatory damages for mental/emotional pain and suffering. (D. 71). The Defendant filed
the instant combined Motion under Federal Rules of Civil Procedure 50(b) and 59 in January
2019. (D. 84). They argue under both rules that: (1) no reasonable jury could have concluded
the Plaintiff was a qualified individual under the ADA (D. 83 at pp. 3-5); (2) the Plaintiff did not
make reasonable accommodation requests (Id. at pp. 5-8); and (3) they offered her reasonable
accommodations (Id. at pg. 8).
LEGAL STANDARD
A Rule 50(b) motion “is only a renewal of the preverdict [50(a)] motion, [and] it can be
granted only on grounds advanced in the preverdict motion.” Passanti v. Cook County, 689 F.
3d 655, 660 (7th Cir. 2012) (citing FED. R. CIV. P. 50(b), comm. Note (2006 amend.)) (additional
citations omitted). Parties forfeit claims they did not argue both preverdict and postverdict.
Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404-05 (2006). The Plaintiff
does not argue the Defendant forfeited any arguments in her Response. (D. 85). She does,
however, highlight the applicable standard from Passanti, requiring that a Rule 50(b) motion
only be granted on grounds asserted in a prior Rule 50(a) motion. Id. at pg. 2.
Therefore, the Defendant forfeited their latter Rule 50(b) arguments that the Plaintiff did
not make reasonable accommodation requests and that they offered her reasonable
accommodations, by failing to argue these points in a Rule 50(a) motion at trial. Thus, the
Defendant’s only remaining Rule 50(b) claim is that no reasonable jury could have concluded
that the Plaintiff was a qualified individual under the ADA. (D. 83 at pp. 3-5).

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When reviewing Rule 50 motions, the Court “views the evidence and all reasonable
inferences in a light most favorable to the party who prevailed under the verdict.” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000). In making a Rule 50(b)
determination, the Court is not at liberty to weigh the parties’ evidence, judge the credibility of
witnesses, or substitute its judgment of the facts for that of the jury’s. McNabola v. Chicago
Transit Authority, 10 F. 3d 501, 515 (7th Cir. 1993). Judgment as a matter of law may only be
granted where “there is no legally sufficient evidentiary basis for a reasonable jury to find for [a]
party on [an] issue.” FED. R. CIV. P. 50. Simply put, “[a] trial court should overturn a verdict
only where the evidence supports but one conclusion—the conclusion not drawn by the jury.”
Ryl-Kuchar v. Care Centers, Inc., 565 F. 3d 1027, 1030 (7th Cir. 2009) (citing Pierce v.
Atchison, Topeka & Santa Fe Ry. Co., 65 F. 3d 562, 568 (7th Cir. 1995)).
Along the same lines, when reviewing motions for a new trial brought pursuant to Rule
59(a), the Court must “construe[] the evidence strictly in favor of the party who prevailed before
the jury and examine[] the evidence only to determine whether the jury’s verdict could [have]
reasonably be[en] based on that evidence.” Passanti, 689 F. 3d at 659 (citing Tart v. Illinois
Power Co., 366 F. 3d 461, 464 (7th Cir. 2004)). Rule 59 motions will only be granted if “the
verdict is against the weight of the evidence … the damages are excessive, or … for other
reasons, the trial was not fair to the party moving.” Kapelanski v. Johnson, 390 F. 3d 525, 530
(7th Cir. 2004) (citations omitted). The decision to grant a new trial “is confided almost entirely
to the exercise of discretion on the part of the trial court.” Allied Chemical Corp. v. Daiflon,
Inc., 449 U.S. 33, 36 (1980).

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ANALYSIS
I.
The Defendant claims that no reasonable jury could have concluded that the Plaintiff was
a qualified individual under the ADA. (D. 83 at pp. 3-5). In their view, the evidence at trial
established that the Plaintiff could not perform the essential functions of her job as a correctional
officer, which includes the ability to rotate through all possible job assignments, precluding any
jury from finding in the Plaintiff’s favor on this issue. Id. The Plaintiff argues that the jury
properly concluded she was qualified under the ADA. (D. 85 at pp. 3-6). Specifically, that
“[c]ollectively, th[e] evidence showed that [she] could perform the essential function of rotating
positions with the reasonable accommodation of being allowed to use a gas mask when needed
or leaving the area in the event pepper spray was used.” Id. at pg. 6.
To establish her claim, the Plaintiff must have presented evidence which would allow a
reasonable jury to conclude that she was a “qualified individual” under the ADA, and therefore
subject to ADA protections. 42 U.S.C. § 12112. The ADA defines a qualified individual as
someone “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).
The Defendant’s argument on this point fails to account for all of the Plaintiff’s
accommodation requests. While she initially requested a transfer and a limitation to specific
duty assignments, the Plaintiff also asked the Defendant to accommodate her by providing her
with access to a protective mask. The latter request eliminated the need for the prior two
accommodation requests and thus, narrows the scope of the Court’s analysis accordingly.
The Defendant does not argue that the jury unreasonably concluded that the Plaintiff
could have performed the essential functions of a correctional officer with the accommodation of
a protective mask. That is the crux of the matter here. Instead of discussing the evidence

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presented at trial regarding the Plaintiff’s ability to perform her job with a protective mask, the
Defendant details the evidence pertaining to the Plaintiff’s requests to transfer duty stations or be
permanently limited to certain duty assignments. (D. 83 at pp. 3-5).
In making their argument, the Defendant relies heavily on Miller. Id. The plaintiff in
Miller was a correctional officer that went blind. Miller, 107 F. 3d. at 484. IDOC discharged
her employment on the grounds that she was incapable of performing her job. Id. The Seventh
Circuit found that the plaintiff could only perform a small fraction of the rotational duties
required of correctional officers in IDOC, even with accommodations, and affirmed the district
court’s grant of summary judgment in favor of IDOC. Id. at pp. 484-85. Based on the plaintiff’s
inability to perform the majority of correctional officer duties, the Seventh Circuit ruled that
IDOC was entitled to discharge her employment. Id. at pg. 85.
Unlike the plaintiff in Miller, the Plaintiff in this case went beyond requesting that she
remain a correctional officer with limited duty availability. Crucially, she also requested
permission keep a protective mask nearby while on duty. This distinguishes her claim from that
of the plaintiff in Miller and renders Miller inapposite. The Plaintiff’s ability to perform all of
her duties as a correctional officer with the assistance of a protective mask was a point of
contention between the parties at trial. As such, it was a disputed issue of fact for the jury to
determine. The Defendant points to nothing which suggests the jury was outside the bounds of
reason when siding with the Plaintiff and crediting her theory that keeping a protective mask
nearby was a reasonable accommodation.
Rather, the Defendant reiterates the arguments they made at trial, which pertain to the
Plaintiff’s assignment location and duty restriction requests, something a reasonable jury was
free to ignore in the face of the Plaintiff’s request to utilize a protective mask. Later, the

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Defendant argues more directly that the Plaintiff’s accommodation request for a protective mask
was unreasonable. (D. 83 at pp. 6-7). See more on this point, infra. This argument, however—
even if it has merit—is distinct from arguing that the jury’s finding on this issue of fact was
unreasonable. The Defendant has failed to support their claim.
The Court cannot say that it was unreasonable for the jury to conclude that the Plaintiff
met her burden and proved her ADA claim. The jury heard testimony from both sides regarding
the reasonableness of the Plaintiff’s request to have access to a protective mask while on duty.
This issue eclipses the Plaintiff’s requests to change her duty location and limit her job
assignments. In short, based on the record before the Court, the jury’s verdict was reasonable
and rationally linked to evidence presented at trial. Accordingly, the Defendant’s remaining
Rule 50(b) argument is DENIED.
II.
The Defendant also argues in the alternative that they are entitled to a new trial, pursuant
to Rule 59, on the same grounds they invoke in their Rule 50(b) arguments, that: (1) no
reasonable jury could have concluded that the Plaintiff was a qualified individual under the ADA
(Id. at pp. 3-5); (2) the Plaintiff did not make reasonable accommodation requests (Id. at pp. 5-8);
and (3) the Defendant offered her reasonable accommodations (Id. at pg. 8). Again, when
reviewing Rule 59 motions, the Court must “construe[] the evidence strictly in favor of the party
who prevailed before the jury and examine[] the evidence only to determine whether the jury’s
verdict could [have] reasonably be[en] based on that evidence.” Passanti, 689 F. 3d at 659.
Such motions will only be granted if “the verdict is against the weight of the evidence … the
damages are excessive, or … for other reasons, the trial was not fair to the party moving.”
Kapelanski, 390 F. 3d at 530.

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Much like its finding that the Plaintiff met her burden of proving her ADA claim under
Rule 50, it was also reasonable for the jury to conclude that the Plaintiff met her burden under
the standards of Rule 59. For the reasons already discussed above, it was reasonable for the jury
to conclude that the Plaintiff established that the Defendant violated the ADA. Therefore, the
Defendant’s Rule 59 claim for relief based on allegedly insufficient evidence of an ADA
violation presented at trial is DENIED.
Next, the Defendant claims that the Plaintiff did not make reasonable accommodation
requests. (D. 83 at pp. 5-8). They address her requests for permanent assignment to specific job
duties, her request to carry a protective mask, and her request to transfer to Lincoln. Id. Again,
had the Plaintiff not further requested the accommodation by way of a protective mask, this case
would be more analogous to Miller. Merely requesting a limitation on her duty location or a
limitation to specific assignments could have doomed her claim. The request for the protective
mask, however, once again saves the day for the Plaintiff.
The Defendant merely asserts that “IDOC did not consider the gas mask a reasonable
accommodation.” Id. at pg. 6. Then they argue the onus was on the Plaintiff to provide medical
evidence that utilizing a protective mask would have been effective, concluding that the
“Plaintiff’s failure to provide expert medical evidence regarding the medical effectiveness of a
gas mask prevents her from establishing that the gas mask was a reasonable accommodation.”
Id. at pp. 6-7. The Defendant cites Wheatley v. Factory Card and Party Outlet, 2015 WL
4455041 (C.D. Ill.), citing Basith v. Cook Cnty, 241 F. 3d 919 (7th Cir. 2001), in support of their
argument. Id.
The Seventh Circuit reasoned in Basith that a plaintiff’s testimony alone is insufficient to
substantiate a claim that an accommodation is effective. Basith, 241 F. 3d at 930. In Wheatley,

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this Court relied on the reasoning in Basith to conclude that a defendant was entitled to summary
judgment, after a plaintiff declared she would not call her only potential medical expert witness
at trial. Wheatley, 2015 WL 4455041. Without this expert, the Court found as a matter of law
that she was precluded from establishing that her requested accommodation was sufficient to
help her do her job properly. Id. These cases do not, however, impose a blanket requirement on
plaintiffs to establish reasonable accommodations under the ADA with a medical expert. See
e.g. Id. at *2 (recognizing that it is a more specialized inquiry than determining disability, but
that “[i]n this case, at least, that inquiry would require expert medical testimony.”); Basith, 241
F. 3d at 930 (“Standing alone, [the plaintiff’s] allegation… is not enough to create a material
issue of fact.”) (emphasis added).
Here, the effectiveness of the Plaintiff’s protective mask accommodation has more
support than her own assertion. The request was supported by her doctor and while the
Defendant claimed there was a safety issue—separate from the medical effectiveness of the
device—at least one IDOC employee testified that protective masks were effective. Thus, the
Plaintiff’s claim is supported by more than her own testimony.
Moreover, the Defendant did not dispute at trial that a protective mask would, if applied
properly and in a timely manner, protect the Plaintiff from the effects of pepper spray. In fact,
the jury heard evidence that an IDOC employee with asthma effectively neutralized the effects of
pepper spray with a protective mask. Demanding now, after trial, that the Plaintiff was required
to provide a medical expert to affirm the testimony that their own employee provided is, at best,
disingenuous. As noted previously, the jury heard the parties’ respective arguments about the
potential safety risks associated with carrying a protective mask inside a jail and the Defendant’s

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internal policies regarding the proper procedure for pepper spray deployment and the use of
protective masks. Both sides elicited relevant testimony from various witnesses on these issues.
Construing the evidence strictly in favor of the Plaintiff, as the prevailing party, the Court
concludes that the evidence noted by the Defendant in their Motion does not entitle them to a
new trial. As noted above, the jury’s verdict was reasonably based on the evidence. The Court
cannot say the trial was unfair to the Defendant or the jury’s verdict was against the manifest
weight of the evidence. As such, the Defendant’s Rule 59 claim for relief based on the
Plaintiff’s alleged unreasonable accommodation requests is DENIED.
The Defendant’s final argument under Rule 59 is that they did offer the Plaintiff
reasonable accommodations. (D. 83 at pg. 8). The Defendant asserts this claim in cursory
fashion, without citation to authority. Id. Accordingly, the Defendant forfeits the argument and
the Court need not address it further. Judge v. Quinn, 612 F. 3d 537, 557 (7th Cir. 2010)
(“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived”).
As a result of the foregoing analysis, the Defendant’s combined Motion under Rules
50(b) and 59 (D. 84) is DENIED.
The Court notes that the Plaintiff also has a Motion for Attorney Fees and Costs (D. 78)
and a Motion for Bill of Costs (D. 79) pending before the Court, to which the Defendant objects
(D. 82). The Court will rule on these pending Motions in due course.
CONCLUSION
For the reasons stated above, the Defendant’s combined Motion under Rules 50(b) and
59—(D. 84)—is DENIED.

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It is so ordered.
Entered on March 7, 2019

s/ Michael M. Mihm
Michael M. Mihm
Senior United States District Judge

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