Leskovisek et al v. Illinois Department of Transportation et al
Filing
75
OPINION: Plaintiffs' Motion for Partial Summary Judgment 48 is DENIED. Defendants' Motion for Summary Judgment 54 is GRANTED in part and DENIED in part. Defendants' Motion is DENIED as to Counts I, II, IV, and V. Defendants' Motion is GRANTED in part and DENIED in part as to Count III. Defendants' Motion is granted as to Count III to the extent that Plaintiffs cannot pursue a disparate impact type of theory at trial. Defendants' Motion is denied as to Count I II to the extent that § 12112(b)(6) allows a disparate treatment type of claim. The Final Pretrial Conference currently set for February 22, 2021 at 10:30 a.m. before United States Judge Colin S. Bruce is CONTINUED to April 26, 2021 at 10:00 a.m . in Courtroom I in Springfield, Illinois before United States District Judge Sue E. Myerscough. The Jury Trial currently set for April 5, 2021 at 9:00 a.m. before United States Judge Colin S. Bruce is CONTINUED to May 18, 2021 at 9:00 a.m. in Court room I in Springfield, Illinois before United States District Judge Sue E. Myerscough. See written Opinion. Entered by Judge Sue E. Myerscough on 12/11/2020. (SKN, ilcd) (Main Document 75 replaced on 12/11/2020 due to typographical error by clerk) (SKN, ilcd).
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E-FILED
Friday, 11 December, 2020 06:10:40 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
NICHOLAS LESKOVISEK,
)
by his next friend, LORI STANLEY, and )
CHAD UNDERWOOD,
)
by his next friend, KIM UNDERWOOD, )
)
Plaintiffs,
)
v.
) Case No. 17-cv-3251
)
ILLINOIS DEPARTMENT OF
)
TRANSPORTATION and ILLINOIS
)
DEPARTMENT OF CENTRAL
)
MANAGEMENT SERVICES,
)
)
Defendants.
)
OPINION
On January 29, 2018, Plaintiffs Nicholas Leskovisek and Chad
Underwood (Nick and Chad) filed their First Amended Complaint
(d/e 14) against Defendants, Illinois Department of Transportation
(IDOT) and Illinois Department of Central Management Services
(CMS). On April 28, 2020, Plaintiffs filed a Motion for Partial
Summary Judgment (d/e 48), and Defendants filed a Motion for
Summary Judgement (d/e 54).
For the reasons that follow, Plaintiffs= Motion (d/e 48) is
DENIED, and Defendants= Motion (d/e 54) is GRANTED in part and
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DENIED in part.
IV, and V.
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Defendants’ Motion is DENIED as to Counts I, II,
Defendants’ Motion is GRANTED in part and DENIED
in part as to Count III.
I.
FACTS
The facts are taken from the parties= statements of Undisputed
Material Facts and Additional Material Facts and from the
documents submitted by the parties.
The Court has only included
facts which are material to the issues raised and adequately
supported by evidence in the record.
A. Background on Plaintiffs, Nick Leskovisek and Chad
Underwood
Nick Leskovisek and Chad Underwood are adults with Autism
Spectrum Disorder (ASD) who participated in the Student
Professionals with Disabilities (SPWD) program.
Nick is non-verbal and has significant deficits in expressive
language.
His primary form of communication is vocalization –
such as soft sounds that are not words – and gestures – such as
pointing or giving high fives.
written communication.
He is largely unable to engage in
He can write or use a communication
board, but only for simple requests, such as a grocery list.
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Nick has substantial deficits in executive functioning.
Executive functioning relates to the set of mental skills that include
working memory, flexible thinking and self-control, and skills used
to learn, focus, handle emotions, and make decisions.
These
deficits impair Nick’s ability to plan, stay organized, and make
decisions.
Chad is verbal, but his expressive language skills are
significantly limited.
While he is able to say words, he is unable to
have a conversation or put those words together into a cohesive
sentence.
He has echolalic tendencies, where, instead of
answering a question, he repeats the last part of the question
asked.
He is unable to answer complex questions either by
speaking or by writing, and he has substantial deficits in executive
functioning that impair his ability to plan, stay organized, and
make decisions.
B.
Plaintiffs’ Participation in the SPWD Program
The SPWD program was administered by IDOT in collaboration
with School District 186 and United Cerebral Palsy Land of Lincoln.
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The program was intended to provide job training and employment
experience to individuals with disabilities, with the goal of
enabling them to obtain permanent, competitive employment.
Under the program, IDOT would hire up to 10 students with
disabilities into paid temporary positions for six-month sessions.
Prior to 2014, participants in the program were supposed to be
eligible to work only a total of three six-month cycles for a
maximum of eighteen months.
However, some participants stayed
longer than eighteen months.
After 2014, the time limit of eighteen
months was changed “to unlimited or as long as it takes,” but with
the program still “intended as developmental and transitional rather
than as permanent employment.”
17.
See Harmening Email, d/e 61-
SPWD program participants were listed as holding Technical
Trainee (“Tech Trainee”) positions.
Through the SPWD program, Nick and Chad were assigned to
work in IDOT’s Traffic Safety Division, Statistical Coding Unit
(“Stats Unit”).
They were placed in the Stats Unit based on their
data entry skills.
Nick entered the SPWD program in 2008, and he
began working in the Stats Unit in early 2011.
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Chad entered the
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SPWD program in 2011, and he began working in the Stats Unit in
August 2013.
Nick and Chad earned $11.10 per hour.
They did
not receive benefits, such as insurance or paid leave time.
Their
Tech Trainee positions were continually renewed until IDOT ended
the SPWD program effective December 31, 2015.
Nick and Chad had a full-time job coach who observed them
working.
From approximately September 2014 until December
2015, Christina Benton was their job coach, employed by United
Cerebral Palsy.
She described her role as training, supporting, and
monitoring Plaintiffs, not doing their work.
She provided them
with interpretation or direction, periodically checking their work for
accuracy and guiding them by correcting mistakes, which Benton
said did not happen often.
Defendants dispute the role of the job coach, pointing to
testimony from Jessica Keldermans.
Keldermans was the Bureau
Chief of the Traffic Safety Division, and she oversaw the Stats Unit.
She testified that, to prevent Nick from “pushing through” cases
with errors in entry submissions, a job coach sat next to Nick
“watching him” and “checking everything” before “then pushing . . .
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the button to . . . push the [data entry] case though.”
Keldermans Deposition, d/e 52-13, p. 131-32, 215.
See
She stated
that Nick and Chad would “get a little upset when [the job coach]
wasn=t there,” resulting in noise disturbances, and that “[w]ithout [a
job coach] they can get very agitated.”
Id. at 131, 215-16.
Keldermans filled out a Social Security Administration form
about Plaintiffs’ abilities to successfully complete all of their Tech
Trainee duties “without special assistance” and in “the same
amount of time as employees in similar position[s].”
Id. at 148.
She testified that she thought Nick and Chad “did a great job.”
Id.
at 175.
C. Plaintiffs Seek Permanent Employment in the Stats Unit
The Stats Unit was responsible for entering data from vehicle
crash reports submitted by law enforcement agencies across
Illinois.
While Nick and Chad held temporary Tech Trainee
positions through the SPWD program, they expressed a desire to be
considered for permanent positions doing data entry at IDOT.
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1.
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Job Classifications and Descriptions
Employment with the State of Illinois is, with some exceptions
not applicable here, governed by the Personnel Code, 20 Ill. Comp.
Stat. 415/1 et seq.
Positions within State employment are grouped
into job title classifications which apply to all State agencies that
fall within CMS=s personnel administration.
Two of the different
job title classifications are Office Associate and Office Assistant.
In
2014 and 2015, there were over 1500 employees across the various
State agencies within the classification of Office Associate, and
about 800 employees within the classification of Office Assistant.
Both of the Office Associate and Office Assistant job
classifications are covered by a collective bargaining agreement
(“CBA”) with the American Federation of State, County and
Municipal Employees (“AFSCME”).
The CBA does not cover
temporary employees.
The permanent positions in the Stats Unit are civil service
positions subject to an “open competitive exam” including a
computer-based “automated test” and a structured “Rutan”
interview.
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Through Equip for Equality attorney Barry Lowy, Nick and
Chad contacted AFSCME, corresponding with Frank Prochaska,
Staff Representative for AFSCME Council 31.
AFSCME agreed to
waive its posting and bidding rights, to enable Nick and Chad to
work with a job coach in a position comparable to what would be an
Office Associate classification without a job coach, but only if the
position were classified at the lower level of Office Assistant.
At the
time, the Stats Unit=s data entry positions were all Office Associate
positions, not Office Assistant positions.
Effective July 1, 2014,
the monthly starting salary for the position of Office Assistant was
$2,782, and the monthly starting salary for the position of Office
Associate at IDOT was $2,935.
IDOT had about ten to fifteen permanent employees whose
jobs included data entry functions similar to the data entry
functions of the Tech Trainees.
Those permanent employees held
the title of Office Associate, and those Office Associates also
performed other functions including location entry, main entry, and
data correction.
The Office Associate job description read, in part:
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[P]rovides complex technical support in the
establishment, maintenance and application of the
Illinois Traffic Records System and the Fatal Accident
Reporting System (FARS). Evaluates police reports and
motor vehicle crash data to determine conformance to
standards set by the Committee on Uniform Definitions
of Motor Vehicle Accidents. Evaluates police reports and
fatal crash documents of all traffic crash cases to
determine a variety of crash date and location features
and to ascertain the integrity of data compiled for the
Traffic Records System and the Fatal Accident Reporting
System. The accurate interpretation and application of
crash data is essential in promoting and implementing
traffic safety programs, traffic safety legislation and
highway improvement programs. Perform duties
primarily independently, referring only sensitive
problems and situations to the supervisor for resolution.
Operates the Crash Information System (CIS) terminal to
access Imaging System and the Locator Tool within CIS
in the performance of duties.
See d/e 52-46, p. 3.
Keldermans testified that there was a hiring freeze starting in
2014.
After May 2014, IDOT could not hire any AFSCME
employees until April 2018Ceven though Keldermans wanted to hire
more employees.
Keldermans thought the hiring freeze ended in
2016, but she was still told she could not hire until a bureau
reorganization was done.
Keldermans had an email exchange
about posting positions at some point in 2015, but IDOT was
unable to post them, and the positions were never filled.
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To get
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work done while unable to hire permanent employees, IDOT
employed temporary employees through a temporary employment
agency.
2.
Testing and Interview Requirements
Applicants seeking employment in Office Assistant or Office
Associate positions must receive a passing letter grade of A, B, or C
on the open competitive exam to be placed on a list for the job
classification under which a specific job vacancy is grouped.
When
a State agency seeks applicants for a vacant position, the agency
requests the candidate list for the relevant job classification.
The
agency selects applicants from the list, first those who received an
A, then B, then C, then the agency interviews applicants and ranks
them based on predetermined uniform criteria.
The exam is
periodically reconfigured with input from agencies.
The automated test for the position of Office Associate has a
total of sixty multiple choice questions, plus an additional
skills-based test depending on the option level.
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Due to Nick’s and Chad’s disabilities, neither could sit down
for a test, read examination questions, or provide answers in
response to written questions.
The Rutan structured interview process is named for the U.S.
Supreme Court case, Rutan v. Republican Party of Illinois, 497 U.S.
62 (1990), which held that hiring, promotion, transfer, and recall of
employees may not be based on party affiliation or support and,
instead, must be based on the merits and qualifications of
candidates.
CMS sets the parameters for the Rutan interview process.
CMS then trains and certifies employees of other state agencies on
the Rutan interview process.
The hiring agency develops the
specific questions and scoring within the CMS parameters.
The
Rutan interview is scored based on applicant responses.
Due to their significant limitations in expressive language,
Nick and Chad cannot meaningfully participate in the Rutan
structured interview process.
verbally.
Nick would not be able to respond
Chad’s verbal abilities are such that he would only be
able to respond with a one-word answer, likely repeating the last
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word he heard.
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Nick and Chad can comprehend and process
simple questions, comments, and commands.
They cannot
comprehend complex questions, including questions that have been
asked in prior Rutan structured interviews.
They can sit quietly
while working on their computers, but they would be unable to sit
quietly and listen to questions for an extended period of time in an
interview setting.
3.
Plaintiffs Requested Accommodations
On June 11, 2014, through Equip for Equality attorney Barry
Lowy, Nick and Chad requested accommodations and modifications
to the testing and interview process.
Lowy communicated with
Michael Forti, IDOT’s Chief Counsel.
Lowy told IDOT that Nick and
Chad were incapable of passing the entrance exam or interviewing,
due to their autism.
Lowy’s letters to Forti requested that IDOT
“waive” the testing and interview requirements as a reasonable
accommodation because the requirements as applied to Nick and
Chad were not job-related and consistent with business necessity
where Nick and Chad had already demonstrated their ability to
perform the essential job functions.
Lowy=s letters stated that Nick
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and Chad “desire[d] to be promoted into a bargaining unit full-time
position doing the tasks of data entry[.]” See Lowy Letters, d/e 5228.
Regarding the AFSCME situation, Lowy stated that AFSCME
initially “would not agree to waive its posting and bidding rights”
but “upon learning that [Nick and Chad were] supported by a job
coach, [AFSCME] agreed to waive its posting and bidding rights if
the position into which Nick [and Chad] would be promoted would
be classified as an Office Assistant position which is one grade
lower than the Office Associate Option II position.”
See d/e 52-28.
The letter Lowy sent to Forti about Nick continued:
In light of AFSCME=s accommodation of Nick to waive
posting and bidding rights, I am requesting as an
accommodation, pursuant to the ADA, that IDOT
promote Nick into an Office Assistant position performing
the same tasks and duties he currently performs in his
Tech-Trainee position. In addition, I am requesting,
pursuant to the ADA, that the requirement of
interviewing and testing be waived in order for Nick to be
promoted into the position and that IDOT take the
appropriate steps with CMS to establish this
accommodation.
Id.
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Lowy=s letter about Chad also contained that language.
In his
deposition, Lowy stated that his letters used the term “promotion”
because Nick and Chad were not in the union, and “[i]t would have
been an increase in pay and an increase in benefits.” See Lowy
Deposition, d/e 52-14, p. 38.
Forti responded that the “request to IDOT to promote Chad
and Nick is premature” because CMS’s and AFSCME’s agreement
were “necessary predicate events to IDOT=s ability to place Chad
and Nick in Office Assistant positions” and CMS had not yet agreed
to waive the testing and interview requirements.
d/e 52-29.
See Forti Letter,
He wrote, “If CMS is willing to waive the testing and
interviewing requirements and AFSCME stands by its agreement to
waive posting for Chad and Nick to fill an Office Assistant position,
then IDOT can begin the process to place Chad and Nick in those
positions.”
Id.
On August 28, 2014, after being informed by Forti that CMS
administers the testing and interview requirements, Lowy contacted
CMS, through Colleen Alderman, CMS=s head of labor relation, with
much the same information he had sent to Forti.
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Lowy=s letters to
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CMS stated that Nick and Chad were “currently receiving the
reasonable accommodation of a job coach” and mentioned that
AFSCME had asked about reclassifying the positions to an Office
Assistant level because Nick and Chad performed their duties “with
an accommodation” consisting of “the support of [a] job coach.”
See Accommodation Request, d/e 52-30.
Lowy asked CMS to
“waive the testing and interviewing requirements and allow IDOT to
place” them “into a permanent full-time position.”
Id.
In October of 2014, CMS Deputy General Counsel Jeffrey
Shuck emailed Lowy, stating that CMS was in the process of
researching the feasibility of bypassing the test and interview
generally required for Rutan-covered, Personnel Code-covered
vacancies.
On December 10, 2014, Lowy asked Shuck for a date by which
CMS would respond.
On December 19, 2014, Shuck emailed Lowy asking for more
information.
That same day, Lowy provided Nick’s and Chad’s job
evaluations and performance studies, which described the role of
the job coaches as “Basically, the coach sits behind Nick and Chad
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and watches them work then from time to time spot checks their
work for accuracy and has them correct any mistakes.”
IDOT has a reasonable accommodation policy that outlines a
time frame within which IDOT must respond to requests for
accommodation.
Shuck testified that in reviewing a request for
reasonable accommodations, if there was a request that was not
reasonable, CMS would generally try to figure out what prompted
the request, to be able to discuss what might be offered as an
alternative.
However, after Lowy sent CMS the information CMS
had requested about Plaintiffs on December 19, 2014, CMS did not
respond to Lowy.
Having ceased responding to Lowy in December 2014, CMS
did not propose alternative accommodation ideas at any time.
The
State has an alternative application process for individuals with
disabilities, but CMS never proposed that process be used to
provide any accommodations to Plaintiffs, and Plaintiffs did not use
the alternative process.
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D. Plaintiffs Complained to the EEOC, and the SPWD Program
Ended.
On June 15, 2015, Plaintiffs filed charges of discrimination
with the EEOC.
On July 8, 2015, IDOT Chief Counsel Philip Kaufmann,
William Barnes, and Special Assistant to the Chief Counsel Bruce
Harmening discussed the termination of the SPWD program via
email.
They discussed Plaintiffs’ EEOC complaints in the same
email chain that day.
On July 16, 2015, Harmening and other IDOT employees met
with School District representatives.
the SPWD program.
They discussed terminating
In response to a request to admit, IDOT
denied that it had decided to terminate the program in July 2015.
On September 2, 2015, IDOT sent a letter to the School
District formally terminating the program, effective December 31,
2015.
IDOT did not notify Plaintiffs that IDOT was terminating the
program until December 2015.
In a December 18, 2015 email, Harmening wrote that he
thought that IDOT terminated the SPWD program “for a number of
reasons; IDOT was not the proper agency for such a program,
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several problems with the participant selection process, allowing
several of the participants to stay for years, Dave [Dailey] using
participants as his personal assistants, threatened lawsuits and
EEO complaints over ADA and labor issues.” See Harmening
Emails, d/e 61-11.
He added, “Publicly I would say that: a review
of the program upon Dave[] [Dailey’s] retirement concluded that
IDOT was not properly equipped and did not have the properly
experienced and trained staff to administer the program.”
Id.
In an April 2017 email, Harmening stated that he was not
aware of any “official reason” why the program ended, but he
“believe[d] it was terminated for a variety of reasons,” which he
listed as:
1) Dave Dail[e]y retired
2) There was no approved job description for his
replacement
3) [IDOT’s] compliance with Rutan rules was questionable
and under investigation by the OEIG
4) [IDOT’s] compliance with the AFSCME CBA was
questionable (the 2 gentlemen in question were doing
AFSCME work)
5) The total cost of the program had more than doubled
over the years to several hundred thousand dollars
See April 2017 Emails, d/e 61-10.
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Dailey was IDOT=s ADA coordinator.
Before he retired, IDOT
and the School District were working on contracting out the
Program Manager role through the School District.
CMS Director of Governmental Affairs, Wendy Butler, wrote in
a December 2015 email that the program was “not being ended due
to budget issues.”
See Wendy Butler Email, d/e 61-8.
In the nine years the SPWD program existed, AFSCME did not
file any grievances about the SPWD program or express a desire to
see the SPWD program eliminated.
The document governing the
SPWD program briefly set forth a selection process.
II.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In
ruling on a motion for summary judgment, a district court “has one
task and one task only: to decide, based on the evidence of record,
whether there is any material dispute of fact that requires a trial.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
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“[T]he district court=s function is not to weigh the evidence and
determine the truth of the matter, but to determine whether there is
a genuine issue for trial.”
Winters v. Fru-Con, Inc., 498 F.3d 734,
744 (7th Cir. 2007).
In making this determination, the Court must construe the
evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in favor of that party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Singer v. Raemisch,
593 F.3d 529, 533 (7th Cir. 2010).
However, a court=s favor toward
the nonmoving party does not extend to drawing “[i]nferences that
are supported by only speculation or conjecture.”
Singer, 593 F.3d
at 533, quoting Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir.
2008).
“The mere existence of an alleged factual dispute will not
defeat a summary judgment motion; instead, the nonmovant must
present definite, competent evidence in rebuttal.” Butts v. Aurora
Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004).
Summary
judgment “is the ‘put up or shut up’ moment in a lawsuit, when a
party must show what evidence it has that would convince a trier of
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fact to accept its version of events.” Koszola v. Bd. of Educ. of City of
Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).
Specifically, to survive summary judgment, “the nonmoving party
must make a sufficient showing of evidence for each essential
element of its case on which it bears the burden at trial.”
Kampmier v. Emeritus Corp., 472 F.3d 930, 936 (7th Cir. 2007),
citing Celotex Corp., 477 U.S. at 322-23.
When cross motions for summary judgment have been filed,
this court must review the record construing all inferences in favor
of the party against whom the motion under consideration is made.
See BASF AG v. Great Am. Assur. Co., 522 F.3d 813, 818 (7th Cir.
2008).
III. ANALYSIS
In Plaintiffs’ Amended Complaint (d/e 14), Plaintiffs bring five
claims.
Four claims allege a violation of Title I of the Americans
with Disabilities Act (ADA): (1) failure to accommodate (Count I); (2)
failure to hire (Count II); (3) maintaining qualification standards
that screen out people with disabilities (Count III); and (4)
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participating in an arrangement that has the effect of discriminating
against a qualified applicant (Count IV).
In the fifth claim, against
IDOT only, Plaintiffs allege retaliation in violation of Title V of the
ADA (Count V).
Plaintiffs move for summary judgment on Counts I and III.
Defendants move for summary judgment on all five counts.
A. Defendants’ Motion for Summary Judgment Is Denied as to
Plaintiffs’ Count I, Failure to Accommodate.
In Count I, Plaintiffs allege that Defendants failed to provide
them with a reasonable accommodation for the job application
process.
Plaintiffs and Defendants both seek summary judgment
in their favor on this claim.
The ADA states: “No covered entity shall discriminate against a
qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. ' 12112(a)
(emphasis added).
The statute clearly prohibits disability
discrimination in the job application process.
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To establish a failure to accommodate claim, Plaintiffs must
show that: (1) they are qualified and have a disability; (2)
Defendants were aware of their disability; and (3) Defendants failed
to accommodate their disability. See Rowlands v. United Parcel
Service - Fort Wayne, 901 F.3d 792, 798 (7th Cir. 2018).
Plaintiffs argue that the material, undisputed facts show that
all three of those elements are met.
Defendants do not dispute that Plaintiffs have a disability, of
which Defendants were aware.
Defendants argue that Plaintiffs are
not “qualified individuals” under the ADA, and that Defendants did
not fail to accommodate Plaintiffs= disabilities.1
1. A Reasonable Jury Could Find Plaintiffs as Qualified
Individuals.
Under the ADA, 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).
Defendants argue that
Defendants also argue that the affirmative defenses of undue hardship and
business necessity apply. However, the Court previously ruled that
Defendants failed to properly raise those affirmative defenses. See October 14,
2020 Order (d/e 74).
1
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Plaintiffs are not “qualified individuals” because they cannot
perform the essential functions of the Office Associate position.
“[T]he essential functions are the ‘fundamental job duties’ of a
position, rather than the position=s ‘marginal functions[.]’”
Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853-54 (7th Cir.
2015), quoting 29 C.F.R. ' 1630.2(n).
To determine what
constitutes an essential function of a position, “consideration shall
be given to the employer=s judgment as to what functions of a job
are essential, and if an employer has prepared a written description
before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions
of the job.”
42 U.S.C. ' 12111(8).
Other evidence of whether a particular function is essential
includes:
(iii) The amount of time spent on the job performing the
function;
(iv) The consequences of not requiring the incumbent to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current work experience of incumbents in
similar jobs.
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29 C.F.R. ' 1630.2(n)(3).
Defendants claim that Plaintiffs are not qualified individuals
because (1) Plaintiffs cannot perform the essential function of
keying in correct data, as “their job coaches must check their work
for accuracy at all times,” and Chad could not work at IDOT
without a job coach; (2) Plaintiffs do not know whether they can
calculate collision locations; (3) Plaintiffs can perform some data
entry tasks, but not other essential job functions listed in the Office
Associate job description.
The Court finds a triable issue of fact as to whether Plaintiffs
were “qualified individuals” under the ADA.
Defendants’
arguments rely on disputed material facts, including the role of the
job coach and what job functions are essential.
The role of the job coach is disputed.
While IDOT required
Plaintiffs to have a job coach, they shared one.
The job coach
testified that Plaintiffs did not make mistakes very often and that
she did not do their jobs for them, periodically spot checking their
work.
On the other hand, the Bureau Chief of the Traffic Safety
Division testified that a job coach sat next to Nick Awatching him@
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and “checking everything” before submitting data entries in order to
prevent Nick from “pushing through” cases with errors in entry
submissions.
She stated that Plaintiffs got agitated, resulting in
noise disturbances, if a job coach was not there.
What tasks were “essential” is also disputed.
perform some data entry tasks.
Plaintiffs could
While the Office Associate job
description listed other tasks, and it is unknown whether Plaintiffs
could do location entry, many factors must be considered in
determining whether location entry or the other tasks are essential.
This is another disputed area, and the parties have both presented
sufficient evidence that a jury could find in their favors as to
whether a potential job involved essential tasks other than data
entry and whether Plaintiffs would be able to do those tasks.
Because an element of Plaintiffs’ claim in Count ICwhether
Plaintiffs were “qualified individuals”Chinges on material facts that
are disputed, Plaintiffs are not entitled to summary judgment on
Count I.
Plaintiffs’ Motion for Summary Judgment is DENIED as
to Count I.
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While Plaintiffs are not entitled to summary judgment as to
Count I, they have presented sufficient evidence that a reasonable
jury could find them “qualified individuals.”
Defendants’ Motion
for Summary Judgment also argues that the material, undisputed
facts show the Plaintiffs cannot prove other elements of their Count
I claim.
The Court now turns to those elements.
2. A Reasonable Jury Could Find in Favor of Plaintiffs as
to Failure to Accommodate Plaintiffs= Disabilities.
Defendants make two arguments as to whether they failed to
accommodate Plaintiffs.
They argue that (1) no vacant positions
existed at the time of the request for accommodations or when
Plaintiffs were terminated, and (2) that Plaintiffs= accommodation
requests were unreasonable.
Plaintiffs argue that Defendants failed to engage in the
interactive process to identify a reasonable accommodation to the
job application process, preventing such an accommodation from
being identified.
a.
Whether a Vacancy Existed
At this stage, Defendants’ argument about whether a vacancy
existed does not entitle Defendants to summary judgement.
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Whether or not a vacancy existed, and whether the existence of a
vacancy even matters, are both disputed issues.
There was a
hiring freeze at some point, but how long the freeze lasted is
unclear, and the need for additional employees was evident while
IDOT used additional temporary employees to get work done during
the hiring freeze.
The successful completion of the testing
requirement allowed candidates to be placed on an eligible list from
which agencies could select applicants to interview when openings
did arise.
And, Plaintiffs were seeking to continue doing the same
job functions they had been doing on a permanent basis rather
than seeking to have new or different dutiesCbut they were seeking
a different job title.
The material, disputed issues concerning the
existence of a vacancy must be decided at trial.
b. Whether the Accommodation Requests Were
Unreasonable
Defendants also argue that Plaintiffs= accommodation requests
were unreasonable.
Plaintiffs argue that the material undisputed
facts show that Defendants failed to accommodate their disabilities
to allow meaningful access to the job application process.
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After learning of an accommodations request, the ADA
requires an employer to “engage with the employee in an >interactive
process= to determine the appropriate accommodation under the
circumstances.”
E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789,
805 (7th Cir. 2005), quoting Gile v. United Airlines, Inc., 213 F.3d
365, 373 (7th Cir. 2000).
The interactive process is a means for identifying a reasonable
accommodation, not an end in itself, so an employer cannot be
liable solely for refusing to take part in it. Sansone v. Brennan, 917
F.3d 975, 979B80 (7th Cir. 2019).
“But when a reasonable
accommodation was possible and the employer did not offer it, the
third element of a ‘failure to accommodate’ claim turns on the
‘interactive process’ requirement” and “responsibility will lie with
the party that caused the breakdown [in the interactive process].”
Id. at 980, citing Sears, Roebuck & Co., 417 F.3d at 805.
In this case, Defendants did not offer any accommodations to
the job application process.
The Court finds that whether a
reasonable accommodation was possible is a disputed question of
fact.
Defendants= argument concerns only one possible
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accommodation: a waiver of the testing and interview requirements
and placement into Office Assistant positions.
That is the request
that Plaintiffs made in letters to IDOT and CMS, and it is disputed
whether it would have been possible for Defendants to grant that
request.
IDOT did not object to a waiver of the testing and
interview requirements, but IDOT indicated that such a waiver
could only come from CMS.
accommodation.
CMS never discussed any alternative
CMS simply stopped responding to Lowy.
Plaintiffs contacted CMS in late August 2014.
CMS
responded in October 2014, but only to say it was researching the
issue.
On December 10, 2014, Plaintiffs asked for a firm date by
which CMS would provide a response to Plaintiffs’ requests for
reasonable accommodations.
CMS responded that it needed
additional information, which Plaintiffs immediately provided.
Then, after December 19, 2014, neither CMS nor IDOT contacted
Plaintiffs or Lowy to seek additional information, to discuss the
request, or to grant or deny the requested accommodation.
Defendants never meaningfully responded to Plaintiffs=
accommodations request.
Had Defendants done so, it may have
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been possible to identify an alternative, reasonable accommodation
to the testing and interview requirements.
Plaintiffs suggest
alternatives, including that the test could have been modified, CMS
could have administered a performance-based test focusing only on
relevant essential job functions, Defendants could have reviewed a
video demonstrating Plaintiffs= abilities, or Defendants could have
spoken with individuals familiar with Plaintiffs’ skills and work
histories.
Because Defendants did not respond, it is unknown
what reasonable accommodations, if any, could have been settled
upon to enable Plaintiffs to access the job application process.
The Court finds that whether Defendants failed to
accommodate Plaintiffs’ disabilities is a question for trial, hinging
on disputed facts concerning whether Plaintiffs were “qualified
individuals” under the ADA and whether a reasonable
accommodation to the job application process was possible that
Defendants failed to offer.
Plaintiffs have identified sufficient evidence from which a trier
of fact could find in their favor on every element of their failure to
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accommodate claim.
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Thus, Defendants’ Motion for Summary
Judgment is DENIED as to Count I.
B. Defendants’ Motion for Summary Judgment on Count II Is
Denied.
Defendants seek summary judgment in their favor on
Plaintiffs’ failure to hire claim.
Plaintiffs do not seek summary
judgment on this claim.
Defendants’ arguments on this Count are identical to their
arguments on Count I. Defendants treat Plaintiffs’ Counts I-IV as
a single failure-to-accommodate claim.
The Court found
Defendants’ arguments unavailing when analyzing Count I.
are equally unsuccessful as to Count II.
They
Defendants’ Motion for
Summary Judgment is DENIED as to Count II.
C. Plaintiffs’ Motion for Summary Judgment Is Denied as to
Count III, and Defendants’ Motion for Summary Judgment on
Count III Is Granted in Part and Denied in Part.
Plaintiffs and Defendants both seek summary judgment in
their favor on Plaintiffs’ Count III, which alleges discrimination in
violation of 42 U.S.C. ' 12112(a) through the definition in 42 U.S.C.
' 12112(b)(6).
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The general rule of 42 U.S.C. ' 12112 provides, “No covered
entity shall discriminate against a qualified individual on the basis
of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.”
42 U.S.C. ' 12112(a).
One definition of the term
“discriminate against a qualified individual on the basis of
disability” is:
using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be
job-related for the position in question and is consistent
with business necessity[.]
42 U.S.C. ' 12112(b)(6).
Plaintiffs present this claim as a disparate impact claim, while
also noting that this part of the ADA is different from other antidiscrimination statutes in that it also applies to criteria that screen
out “an individual.”
Defendants argue that the claim is actually a
failure to accommodate claim and, alternatively, that Plaintiffs have
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not established a prima facie case of disparate treatment or
disparate impact.
There is sparse Seventh Circuit precedent concerning
disparate impact claims within the context of the ADA.
The issue
was discussed in Roberts v. City of Chicago, 817 F.3d 561, 566-67
(7th Cir. 2016). Roberts noted that the complaint did not mention
disparate impact, but the court analyzed the disparate impact issue
anyway because the substance of the plaintiffs’ allegations
resembled a disparate impact claim.
Roberts, 817 F.3d at 566.
Roberts noted that “[d]isparate impact claims under the ADA
‘involve employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on
one group than another and cannot be justified by business
necessity.’” Id. at 566, quoting Raytheon Co. v. Hernandez, 540 U.S.
44, 52 (2003).
The court found that the plaintiffs failed to state a
disparate impact claim under the ADA, reasoning:
The complaint alleges that the City discriminated against
Hill and Roberts, not disabled applicants generally. And
the complaint is devoid of any Afactual content ... tending
to show that the City=s testing process, or some
particular part of it, caused a relevant and statistically
significant disparity between@ disabled and non-disabled
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applicants. Adams v. City of Indianapolis, 742 F.3d 720,
733 (7th Cir. 2014), cert. denied, BBB U.S. BBBB, 135 S.Ct.
286, 190 L.Ed.2d 140 (2014).
Roberts, 817 F.3d at 566.
Adams v. City of Indianapolis, cited in Roberts, is a Title VII
case, not an ADA case.
However, the Seventh Circuit has long
imported analytical approaches from Title VII cases into ADA cases.
See Swan v. Board of Educ. of City of Chicago, 2013 WL 4401439, at
*12 n.5 (N.D. Ill. 2013). Swan used a Title VII disparate impact
framework when analyzing an ADA disparate impact claim,
explaining:
The Seventh Circuit has not directly addressed the
elements of a prima facie case of disparate impact
discrimination under the ADA. In analyzing claims
under the ADA, however, the Seventh Circuit “borrow[s]
from [its] approach to the respective analog under Title
VII.” Miranda v. Wis. Power & Light Co., 91 F.3d 1011,
1017 (7th Cir. 1996). Thus, the Court applies the Title VII
disparate impact analysis here. This is consistent with
the analysis other circuits have developed in cases that
have directly addressed the elements of a prima facie
case of disparate impact discrimination under the ADA.
2013 WL 4401439, at *12 n.5.
Swan found, in an ADA context:
To establish a disparate impact claim, a plaintiff must (1)
isolate and identify specific practices that are allegedly
responsible for any observed statistical disparities; and
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(2) establish causation by “offer[ing] statistical evidence of
a kind and degree sufficient to show that the practice in
question has caused the [alleged harm] because of their
membership in a protected group.” See Puffer v. Allstate
Ins. Co., 675 F.3d 709, 717 (7th Cir. 2012).
2013 WL 4401439, at *12.
Few cases mention Roberts= disparate impact discussion.
A
district court in this circuit that did so is Marx v. Richland County,
WI, 2018 WL 3520509, at *6-7 (W.D. Wis. July 20, 2018).
In Marx,
the court applied Roberts at the summary judgment stage, where a
plaintiff alleged, as a disparate impact ADA claim, that a
requirement discriminated against veterans with debilitating PTSD.
Marx, 2018 WL 3520509, at *7.
Marx stated, “To state a claim for
discrimination under a disparate impact theory, however, plaintiff
had to offer some objective evidence showing that the in-person
meeting policy caused a ‘relevant and statistically significant
disparity’ between veterans with PTSD and non-disabled veterans.”
Id., citing Roberts, 817 F.3d at 566.
The court concluded that the
plaintiff could not succeed on a disparate impact theory where he
had neither offered proof nor alluded to any other instances in
which veterans other than himself were affected by the policy at
issue.
Id.
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Patton v. Shulkin, 2018 WL 1321589, at *12 (W.D. Va. March
14, 2018), a case briefly mentioned in Defendants’ Response and
Plaintiff=s Reply, cites Roberts in discussing how various courts
have analyzed disparate impact claims under the ADA (and, by
extension, the Rehabilitation Act, which “incorporates the
standards set forth in Title I of the ADA”).
In Patton, the defendant
moved for summary judgment on a disparate impact claim, arguing
that it was “not supported by statistical evidence sufficient to show
that the alleged practice operated to discriminate against disabled
employees[.]”
Id.
Patton examined how courts in other circuits had handled
“whether a plaintiff must present statistical evidence to establish a
prima facie case of disparate-impact discrimination under the ADA
or the Rehabilitation Act,” noting that “a number of courts have
held that such evidence is typically required.”
Id. at *13.
It
described Roberts as “holding that the complaint failed to state a
claim of disparate-impact discrimination under the ADA since it
was ‘devoid of any factual content ... tending to show that the City=s
testing process ... caused a relevant and statistically significant
disparity between disabled and non-disabled applicants,’” a view
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consistent with the views of three other circuits.
Id., quoting
Roberts, 817 F.3d at 566.
Patton continued:
On the other hand, based on the plain language of 42
U.S.C. ' 12112(b)(6), which prohibits “employment tests
or other selection criteria that screen out or tend to
screen out an individual with a disability or a class of
individuals with disabilities,” some courts have held that
statistical evidence is not required to establish a prima
facie case under the “screen out disparate impact
theory.” Williams v. ABM Parking Servs., No.
1:16-cv-1259, 2017 WL 4999562, at *6, 2017 U.S. Dist
LEXIS 182148, at *18 (E.D. Va. Oct. 31, 2017).
Patton described Williams as joining the Fifth and Ninth Circuits in
recognizing “that an individual advancing an ADA disparate impact
claim need not present statistical evidence if he or she can show
that a job qualification screens out the plaintiff on the basis of his
or her disability.” Id.
The Patton court ultimately concluded that “the analysis of a
disparate-impact claim under the disability statutes is somewhat
more nuanced” than simply relying on Title VII decisions.
*14.
Id. at
The court found that the plaintiff needed to show that the
challenged employment practice had “a significant discriminatory
effect on disabled individuals as a group,” which he was unable to
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do.
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Id. (“Patton has not offered any evidence, statistical or
otherwise, demonstrating that the alleged practice of terminating
employees based on their use of accrued leave had a disparate
impact on disabled employees as a group.”).
Evidence concerning
two people in addition to the plaintiff did not sufficiently support
the conclusion that the practice in question had a significant
discriminatory effect.
Id.
The court further noted that even if it
were to recognize an exception for claims based on the “screen out
disparate impact theory,” that exception would not apply because
the plaintiff did not make a claim under the relevant statutory
provision.
Id.
The Court now turns to Plaintiffs’ Count III.
In denying
Defendants’ Motion to Dismiss Count III, the Court stated:
Although Roberts is binding on this Court, the Court will
allow Count III to proceed with leave for Defendants to
raise the issue again after discovery. First, ' 12112(b)(6)
specifically defines discrimination to include
qualifications standards that screen out an individual
with a disability, not just a class of individuals with a
disability. Second, Plaintiffs have alleged sufficient facts
to permit them to proceed to discovery to obtain evidence
that Defendants= testing process caused a relevant and
statistically significant disparity between disabled and
non-disabled applicants. Therefore, the Court will not
dismiss Count III at this time.
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See Opinion, d/e 21, p. 24.
Now at the summary judgment stage, Roberts remains binding
on the Court, and Plaintiffs did not obtain evidence in discovery
that Defendants’ testing process caused a relevant and statistically
significant disparity between disabled and non-disabled applicants.
The Court concludes that, based on Roberts, Plaintiffs’ disparate
impact ADA claim does not survive summary judgment when
analyzed through the disparate impact analysis imported from the
Title VII context.
However, the Court agrees with Plaintiffs that ' 12112(b)(6)’s
language does permit claims of discrimination against individuals.
The strands of case law discussing the need for statistical evidence
do not actually conflict with cases noting that ' 12112(b)(6)’s
language permits claims screening out “an individual” with a
disability.
Looking again at the statutory language, an employer
can “discriminate against a qualified individual on the basis of
disability” by:
using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be
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job-related for the position in question and is consistent
with business necessity[.]
42 U.S.C. ' 12112(b)(6) (emphasis added).
The critical language is
“an individual with a disability or a class of individuals with
disabilities.”
That language allows for a disparate impact type of
claim when “a class of individuals with disabilities” is involved.
When “an individual with a disability” is involved, the claim is more
similar to a disparate treatment claim, relying on a showing that the
plaintiff was a qualified individual screened out by the employer=s
selection criteria.
Plaintiffs argued both types of ' 12112(b)(6)
claims.
The Court finds that a trial is warranted on Count III’s
' 12112(b)(6) claim as a disparate treatment type of claim.
Plaintiffs have shown that the testing and interview requirements
are “qualification standards, employment tests or other selection
criteria” that screen them out as individuals.
However, as
discussed above, contested issues of material fact remain as to
whether Plaintiffs are “qualified individuals.”
If a trier of fact were
to find that Plaintiffs were qualified individuals, then the testing
and interview requirements that screened them out would
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constitute discrimination pursuant to 42 U.S.C. ' 12112(b)(6).2
Neither party is therefore entitled to summary judgment on Count
III.
Plaintiffs argue that statistical evidence is not required to
prove a disparate impact claim in this case, arguing that
“Defendants have [ ] admitted both that their job application
process screened out Plaintiffs and that it screens out people with
significant disabilities.”
The Court agrees that statistical evidence
is not required because Plaintiffs can show a ' 12112(b)(6) violation
even if the selection criteria only impacted them as individuals with
disabilities.
However, Plaintiffs must show they were qualified
individuals, following the above analysis.
While Defendants admit
that Plaintiffs were screened out, Defendants do not admit that any
discrimination occurred.
Defendants insist that Nick and Chad
were not “qualified individuals,” and Defendants have not admitted
that the testing and interview requirements are discriminatory
against any class of individuals.
While Plaintiffs argue that a
The Court found in a prior Order (d/e 74) that Defendants forfeited the
affirmative defenses of undue hardship and business necessity.
2
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group of disabled individuals is at issue, they have identified no
other affected individuals.
The group allegedly discriminated
against “others with similar limitations” is defined in reference to
Plaintiffs’ individual abilities.
The Court finds a disputed material
issue of fact remains as to whether the Defendants discriminated
against Plaintiffs in violation of ' 12112(b)(6) as it applies to “an
individual with a disability.”
Plaintiffs= Motion for Summary Judgment is denied as to
Count III.
Defendants= Motion for Summary Judgment is granted
in part and denied in part as to Count III.
The Motion is granted to
the extent that Plaintiffs cannot pursue a disparate impact type of
theory at trial.
The Motion is denied to the extent that '
12112(b)(6) allows a disparate treatment type of claim.
D. Defendants’ Motion for Summary Judgment as to Count IV
Is Denied.
Defendants seek summary judgment in their favor on
Plaintiffs’ Count IV.
Plaintiffs do not seek summary judgment in
their favor on this claim.
Another way to “discriminate against a qualified individual on
the basis of disability,” as prohibited by the ADA, is by:
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participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered
entity=s qualified applicant or employee with a disability
to the discrimination prohibited by this subchapter (such
relationship includes a relationship with an employment
or referral agency, labor union, an organization providing
fringe benefits to an employee of the covered entity, or an
organization providing training and apprenticeship
programs)[.]
42 U.S.C. ' 12112(b)(2).
Defendants’ arguments on this count are the same as their
arguments on Counts I, II, and III.
arguments unavailing.
The Court above found those
Defendants’ Motion for Summary
Judgment is DENIED as to Count IV.
E. Plaintiffs’ Claim for Retaliation Proceeds, and Defendants’
Motion for Summary Judgment as to Count V Is Denied.
Count V, against IDOT only, alleges retaliation in violation of
Title V of the ADA.
this claim.
Defendant IDOT seeks summary judgment on
Plaintiffs do not seek summary judgment on this claim.
The standard for a retaliation claim “is simply whether the
evidence would permit a reasonable factfinder to conclude that the
plaintiff=s race, ethnicity, sex, religion, or other proscribed factor
caused the discharge or other adverse employment action.” Sanford
v. Thor Industries, Inc., 286 F. Supp. 3d 938, 947-48 (N.D. Ind.
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2018), quoting Ortiz v. Werner Enter., 834 F.3d 760, 765 (7th Cir.
2016).
The ADA states, “No person shall discriminate against any
individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.”
42
U.S.C. ' 12203.
Here, Plaintiffs claim they were retaliated against for engaging
in protected activity when IDOT ended the SPWD program,
terminating their jobs, because Plaintiffs filed charges with the
EEOC.
The parties do not dispute that Plaintiffs engaged in
protected activity when they filed charges of employment
discrimination with the EEOC.
The issue, then, is whether the
evidence would permit a reasonable factfinder to conclude that
Plaintiffs’ making EEOC complaints caused an adverse employment
action.
Defendant IDOT argues that Plaintiffs cannot demonstrate
causation for their retaliation claim and that Plaintiffs did not suffer
an adverse employment action.
In Alderson v. Ferrellgas, Inc., 127
F. Supp. 3d 937, 953 (N.D. Ind. 2015), the court discussed the
standards that apply to an ADA retaliation claim:
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The Plaintiff asserts that the circumstantial evidence
raises an inference that her employer took action to
terminate her employment in retaliation for requesting an
accommodation. Under this approach, “the plaintiff must
connect the circumstantial evidence to the employment
action such that a reasonable juror could infer the
employer acted for discriminatory reasons.” Fleishman v.
Cont’l Cas. Co., 698 F. 3d 598, 603 (7th Cir. 2012). Such
circumstantial evidence may include “(1) suspicious
timing; (2) ambiguous statements or behavior towards
other employees in the protected group; (3) evidence,
statistical or otherwise, that similarly situated employees
outside of the protected group systematically receive
better treatment; and (4) evidence that the employer
offered a pretextual reason for an adverse employment
action.” Teruggi v. CIT Grp./Capital Fin., Inc., 709 F.3d
654, 659-60 (7th Cir. 2013) (quoting Dickerson, 657 F. 3d
at 601). “The ultimate question the parties and the court
always must answer is whether it is more likely than not
that the plaintiff was subjected to the adverse
employment action because of his protected status or
activity. To answer that question, the individual ‘bits and
pieces’ presented by the plaintiff must be put into context
and considered as a whole.” Hobgood v. Ill. Gaming Bd.,
731 F.3d 635, 644 (7th Cir. 2013).
Alderson v. Ferrellgas, Inc., 127 F. Supp. 3d 937, 953 (N.D. Ind.
2015).
Defendant IDOT claims that the ending of the SPWD program
had nothing to do with Plaintiffs’ EEOC complaint.
IDOT argues
that it ended the program because its ADA coordinator retired and
could not be replaced, costs were ballooning, the program
potentially did not comply with the CBA, and the program
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potentially did not comply with best-qualified hiring principles.
Plaintiffs argue that a factfinder could reasonably conclude that
their EEOC complaints caused the SPWD program to end, despite
IDOT’s now-stated reasons for ending it.
Plaintiffs argue that there
is sufficient evidence of suspicious timing and pretext.
Plaintiffs presented evidence of suspicious timing.
Plaintiffs
filed charges of discrimination with the EEOC on June 15, 2015.
On July 8, 2015, IDOT’s Chief Counsel’s office employees emailed
about those EEOC charges in the same email chain in which they
discussed ending the SPWD program.
On July 16, 2015, IDOT
discussed ending the program with the School District.
The fact
that the official letter ending the program was not sent until
September 2015 does not show that the decision to end the
program had not been in the works earlier, and there is evidence
that the letter officially ending the program was set in motion in
July.
And, IDOT did not tell Plaintiffs about the decision until
December 2015, the month the program ended.
Plaintiffs also presented evidence of pretext.
In an email
dated December 18, 2015, Harmening wrote that he thought that
IDOT terminated the SPWD program “for a number of reasons,” one
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of which was “threatened lawsuits and EEO complaints over ADA.”
He added, “Publicly I would say that: a review of the program upon
Dave=s retirement concluded that IDOT was not properly equipped
and did not have the properly experienced and trained staff to
administer the program.”
The fact that some reasons were given
privately with a separate reason to state publicly is evidence of
pretext.
Then, in 2017, there was no “official reason” why the
program ended.
Plaintiffs present some evidence undermining
Defendants’ now-stated reasons for ending the program.
Before
the ADA coordinator retired, IDOT and the School District were
working on contracting out the Program Manager role through the
School District. CMS Director of Governmental Affairs, Wendy
Butler, wrote in a December 2015 email that the program was “not
being ended due to budget issues.”
In the nine years the SPWD
program existed, AFSCME did not file any grievances about it or
express a desire to see it eliminated, and the program was updated
to include some selection processes.
Defendant IDOT also argues that Plaintiffs cannot prove their
retaliation claim because Plaintiffs held temporary six-month
positions in an affirmative action program with no expectation of
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continued employment or promotion.
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The Court disagrees.
Plaintiffs’ terms were continually renewed for years, and the limits
on the length of possible employment were eliminated in 2014.
The ending of the SPWD program ended their years of employment
with IDOT.
A factfinder could find that ending the program was an
adverse employment action.
The question, then, is simply whether the evidence would
permit a reasonable factfinder to conclude that Plaintiffs’ filing
EEOC charges caused IDOT to terminate the SPWD program.
Construing the evidence in the light most favorable to Plaintiffs and
drawing all reasonable inferences in their favor, Anderson, 477 U.S.
at 255, the Court finds the evidence sufficient to enable the jury to
find for Plaintiffs on their retaliation claim.
IDOT suggests that it should not be punished for going out of
its way to hire disabled individuals into affirmative action
temporary job-training positions.
However, the existence of a
program intended to assist disabled individuals does not insulate
IDOT from liability if IDOT otherwise fails to comply with laws
prohibiting discrimination.
If IDOT ended the program for an
impermissible reason to retaliate against Plaintiffs for filing
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3:17-cv-03251-SEM-EIL # 75
Page 50 of 51
complaints of discrimination with the EEOC, IDOT violated the
ADA, regardless of what laudable activity IDOT may have otherwise
engaged in. Defendants= Motion is DENIED as to Count V.
IV. CONCLUSION
IT IS THEREFORE ORDERED THAT:
(1)
Plaintiffs’ Motion for Partial Summary Judgment (d/e 48)
is DENIED.
(2)
Defendants’ Motion for Summary Judgment (d/e 54) is
GRANTED in part and DENIED in part.
DENIED as to Counts I, II, IV, and V.
Defendants’ Motion is
Defendants’ Motion is
GRANTED in part and DENIED in part as to Count III.
Defendants’
Motion is granted as to Count III to the extent that Plaintiffs cannot
pursue a disparate impact type of theory at trial.
Defendants’
Motion is denied as to Count III to the extent that ' 12112(b)(6)
allows a disparate treatment type of claim.
(3)
The Final Pretrial Conference currently set for February
22, 2021 at 10:30 a.m. before United States Judge Colin S. Bruce is
CONTINUED to April 26, 2021 at 10:00 a.m. in Courtroom I in
Springfield, Illinois before United States District Judge Sue E.
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3:17-cv-03251-SEM-EIL # 75
Myerscough.
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The Jury Trial currently set for April 5, 2021 at 9:00
a.m. before United States Judge Colin S. Bruce is CONTINUED to
May 18, 2021 at 9:00 a.m. in Courtroom I in Springfield, Illinois
before United States District Judge Sue E. Myerscough.
ENTERED: December 11, 2020
FOR THE COURT:
s/ Sue E. Myerscough___
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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