Crain v. Roseville Rehabilitation and Health Care

Filing 29

ORDER entered by Judge Sara Darrow on March 21, 2017. Defendant's 25 motion for summary judgment is DENIED. The final pretrial conference and jury trial in this case, which were vacated, are reset as follows: the final pretrial conference i s to be held on June 28, 2017 at 1:30 p.m. at the Rock Island courthouse, and the jury trial on July 24, 2017 at 9:00 a.m., also at the Rock Island courthouse. The parties are directed to submit a proposed pretrial order by June 21, 2017 that shall conform in form and content to the requirements of Central District of Illinois Local Rule 16.1(F). (SC, ilcd)

E-FILED

Tuesday, 21 March, 2017 02:07:34 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
JANE CRAIN,
Plaintiff,
v.
ROSEVILLE REHABILITATION AND
HEALTH CARE,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:14-cv-04079-SLD-JEH

ORDER
Before the Court is Defendant Roseville Rehabilitation and Health Care’s motion for
summary judgment, ECF No. 25. For the following reasons, the motion is DENIED.
BACKGROUND1
Jane Crain began working as a Certified Nursing Assistant (“CNA”) in 1991 at a nursing
home in Roseville, Illinois (“Roseville”) operated by a company called American Health. She
tore her right rotator cuff while working in 2008, and had two surgeries on her shoulder, making
heavy lifting more difficult. Her doctor placed her under permanent weight restrictions,
including: not lifting more than twenty pounds above the shoulder, not lifting more than thirty
pounds to shoulder level, not carrying more than thirty-five pounds, and not pushing or pulling
more than fifty pounds. Evaluation, Mot. Summ. J. Ex. 9.

1

At summary judgment, a court “constru[es] the record in the light most favorable to the nonmovant and avoid[s]
the temptation to decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). The facts related here are taken from the parties’ undisputed material facts, Mot. Summ. J. 2–6,
Resp. Mot. Summ. J. 5–6, from Crain’s list of disputed material facts, Resp. Mot. Summ. J. 7–24, and from the
exhibits to the motion and response. Where the parties disagree about the facts, the Court views the evidence in the
light most favorable to Crain, the non-moving party, and draws all reasonable inferences in her favor. McCann v.
Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255
(1986)).

1

When Crain returned to work, the Director of Nursing (“DON”) (the parties cannot agree
about who this was at this time) moved her from her job on the hospital floor and made her a
transportation aide, because the job of transportation aide involved less lifting than working as a
nurse on the hospital floor.2 At some later point, the DON (now agreed to be Connie Jacobs)
assigned Crain to work as a CNA on the hospital floor every other weekend. Crain was assigned
to the hall with the least amount of lifting, and other CNAs would help her with the lifting she
did have to do. While it is not clear exactly who at Roseville Crain told about her injury and
restrictions upon returning to work, at least three of Crain’s co-workers—Jacobs, Kendra
Livingston, and Patty Anderson—testified to an awareness of Crain’s inability to lift some heavy
objects, and that this was the reason that she was assigned to the hall with the least amount of
lifting. See Crain Dep. 41, Resp. Mot. Summ. J. Ex. 1; Livingston Dep. 10–11, Resp. Mot.
Summ. J. Ex. 3; Anderson Dep. 8–9, Resp. Mot. Summ. J. Ex. 4. According to Anderson, who
was DON in 2013, Crain’s condition was generally known amongst the CNAs who worked at
Roseville. Anderson Dep. 9.
In April 2010, Petersen Health Care – Roseville LLC (“Petersen”), the defendant in this
case,3 bought the nursing home from American Health. All employees who had worked for
American Health and wanted to keep working at the nursing home had to submit new
applications for employment. Crain’s application for employment, which indicates that she

2

Petersen endeavors to dispute the reason for Crain’s reassignment by pointing out that only Crain testified that this
was the reason for her reassignment. Reply 2–3. However, Petersen offers no other reason why this reassignment
might have occurred, and it is not the Court’s role at summary judgment to make credibility determinations. The
Court views the evidence in the light most favorable Crain, and will accept her version of these facts. See Anderson,
477 U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for
a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in
his favor.”).
3
Crain named “Roseville Rehabilitation and Health Care” in her initial Complaint, ECF No. 1. Petersen appears to
be the entity she seeks to sue, and the entity that has responded to her lawsuit. See Answer 1, ECF No. 9. For that
reason, and to avoid confusion, the Court will refer to Defendant as “Petersen.”

2

worked as a “CNA – transportation aide,” states that she is in generally good health, but that
“due to 2®shoulder surgeries can not lift over 35 lbs.” Crain Application, Resp. Mot. Summ. J.
Ex. 8, ECF No. 26. She also filled out a medical history form that asked her to list any
conditions she had or had had “to determine an employee’s ability to perform the essential
functions of their [sic] position.” Crain Medical History, Resp. Mot. Summ. J. Ex. 9. Crain
checked boxes indicating that she suffered from a tingling sensation in her arms or fingers, had
difficulty lifting, and had had a rotator cuff injury, arthroscopy, and back injury or “back
symptoms.” Id. In response to a question about whether a physician had ever restricted her
activities, she wrote: “® shoulder – permanent lifting restriction – yes still under restriction.”
Id. She also described the dates of her surgeries, what kind of surgeries they were, and stated
that she had been on leave for one year after the shoulder injury, returning with a “permanent
lifting restriction.” Id.
Petersen keeps detailed descriptions of the job responsibilities for both “transportation
drivers” and CNAs.4 According to these descriptions, a transportation driver must be able to lift
objects weighing up to fifty pounds, carry objects weighing up to twenty-five pounds, and push
or pull objecting weighing up to fifty pounds, and also be able to lift residents into and out of
vehicles. Job Summ. – Trans. Driver, Mot. Summ. J. Ex. 11. A CNA must be able to lift objects
weighing up to fifty pounds, carry objects weighing up to twenty pounds, and push and pull
objects weighing up to one hundred pounds. Job Summ. – CNA, Mot. Summ. J. Ex. 12. While
conceding the existence of these rules, Crain points out that the van she used as a transportation
aide was equipped with a mechanical lift that lifted residents for her, and that Ethel Logue, who
is alleged later to have fired Crain, admitted that Crain had been able to perform all the

4

It is not clear whether these requirements, or similar ones, existed before the change in ownership of the nursing
home.

3

requirements of the transportation aide job, as did Anderson. Similarly, Crain points to
Livingston’s testimony that as a CNA at Roseville, one was never called upon to carry more than
20 pounds. See Livingston Dep. 41. Livingston further opined that most of the things CNAs had
to push were wheelchairs or lifts on wheels, and stated that she had never seen Crain unable to
perform the duties of the CNA job. Id. at 48. So too, Jacobs stated that the only thing that a
CNA or transportation aide would have to lift over 35 pounds would be a person, but that a lift
would typically be used for that task. Jacobs Dep. 24–25, Resp. Mot. Summ. J. Ex. 2.
Nothing happened to Crain right away. Sometime between August 2013 and February
2014, Anderson asked Crain to work a twelve-hour shift as a CNA. Crain explained that her
doctor had told her that she could not work twelve straight hours because of her shoulder.
Anderson asked Crain “just . . . to write something for her” to support this request. Crain Dep.
66. Crain wrote a note saying she could not work for twelve hours at a stretch, and attached a
doctor’s note explaining her weight restrictions. See Evaluation. Anderson did not read this
note, but put it in a drawer somewhere and scheduled Crain for eight-hour shifts, per her request.
When Anderson was replaced as DON, someone found Crain’s note and gave it to Logue,
an administrator. Logue, Crain, and Nancy Simmons had a meeting on March 18, 2014.
Petersen claims that at the meeting, Logue told Crain that “she would need to provide a doctor’s
note stating that she could perform the physical requirements of the transportation driver position
in order to continue working for Petersen.” Mot. Summ. J. 5. However, Petersen supports the
assertion by relying on Crain’s deposition testimony, which reflects Crain’s rather different
version of events: that at this meeting Crain was “terminated,” Crain Dep. 35, or “let go,” id. at
78, until she could get a doctor’s note indicating that she could work without restrictions

4

“because no one at Petersen homes could work with restrictions,” id. In any event, Crain
stopped working for Petersen, apparently from this day forward.
Crain filed the instant claim on September 4, 2014, Compl., ECF No. 1, alleging
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213 and/or
the Rehabilitation Act, 29 U.S.C. §§ 701–718b, by terminating her employment. Petersen
moved for summary judgment on April 4, 2016.
DISCUSSION
I.

Legal Standard on a Motion for Summary Judgment
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). At the summary judgment stage the 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—that
is, whether there is sufficient evidence favoring the non-moving party for a jury to return a
verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Patel v. Allstate
Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997). The court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson, 477 U.S.
at 255). “A genuine issue for trial exists only when a reasonable jury could find for the party
opposing the motion based on the record as a whole.” Pipitone v. United States, 180 F.3d 859,
861 (7th Cir.1999) (citation omitted).
II.

Analysis
The ADA both proscribes adverse employment treatment of an employee on the
basis of the employee’s physical or mental disability, 42 U.S.C. §§ 12112(b)(1)(4), and imposes an affirmative duty on employers to make reasonable
accommodations for the disabilities of an employee who can perform the essential
5

functions of her job with or without accommodation. 42 U.S.C. §§ 12112(b)(5)(7).
Feldman v. Am. Mem’l Life Ins. Co., 196 F.3d 783, 789 (7th Cir. 1999). The parties agree that
Crain’s complaint alleges claims for both adverse treatment under the ADA, commonly called a
discrimination claim, and failure to make reasonable accommodations under the ADA. For
either claim to be successful, Crain will have to show that she is or was a qualified individual
with a disability. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001) (explaining that
both discrimination and failure to accommodate claims under the ADA must begin by making
this showing). In addition, Crain would have to show that her employer was aware of her
disability. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999) (explaining
that knowledge of the disability is an element of a failure to accommodate claim); Hedberg v.
Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995) (“We think that an employer cannot be
liable under the ADA for firing an employee when it indisputably had no knowledge of the
disability. This is supported both by simple logic and by the conclusions of other courts that have
considered analogous issues.”). Petersen moves for summary judgment on the grounds that
Crain could not show a jury that she was a qualified individual with a disability, Mot. Summ. J.
10–14, and because she cannot show that Petersen knew about her purported disability, id. at 9.
a. Qualified Individual with a Disability
Under the ADA, a qualified individual with a disability 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). In turn, “disability”
means “(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having

6

such an impairment.” Id. § 12102(1). And “essential functions” are determined not just by
looking at an employer’s job description, but by looking to a number of factors:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(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.
Miller v. Illinois Dep’t of Transp., 643 F.3d 190, 197–98 (7th Cir. 2011) (quoting 29 C.F.R.
§ 1630.2(n)(3)). The sixth and seventh of these factors in particular require a determining court
to “look to evidence of the employer’s actual practices in the workplace.” Miller, 643 F.3d at
198.
First, Petersen argues that Crain has failed to put forward evidence of a disability
sufficient to create an issue of material fact as to whether she was disabled. Mot. Summ. J. 9. A
disability includes an impairment that substantially limits one or more major life activities, 42
U.S.C. § 12102(1)(A), and major life activities include lifting, id. § 12102(2)(A). Has Crain put
forward evidence such that a jury could conclude that that her restrictions were a substantial
limitation on lifting?
The ADA was amended in 2008, substantially expanding the Act’s coverage. See ADA
Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553. Prior to this amendment, the
Seventh Circuit had consistently held that lifting restrictions similar to Crain’s did not, in and of
themselves, constitute an ADA disability. See, e.g., Squibb v. Mem’l Med. Ctr., 497 F.3d 775,
7

782 (7th Cir. 2007) (inability to lift twenty-five to thirty pounds not a substantial limitation).
Since the amendment, however, district courts in the Seventh Circuit have consistently held that
such restrictions, in and of themselves, do constitute a showing of impairment of a major life
activity sufficient to survive summary judgment. See Galvin-Stoeff v. St. John’s Hosp. of the
Hosp. Sisters of the Third Order of St. Francis, No. 11-3423, 2014 WL 4056695, at *9 (C.D. Ill.
Aug. 15, 2014) (finding that a factual dispute about disability was sufficient to survive a motion
for summary judgment where a woman who could not lift more than thirty pounds because of
bulging discs); Gatlin v. Vill. of Summit, 150 F. Supp. 3d 984, 991 (N.D. Ill. 2015) (finding that a
plaintiff who was restricted from lifting more than twenty pounds had made a showing of
disability sufficient to survive summary judgment); Dobosz v. Quaker Chem. Corp., No. 2:15CV-203-PRC, 2016 WL 4376528, at *9 (N.D. Ind. Aug. 16, 2016) (“For purposes of this motion
[for summary judgment], Dobosz’s permanent restriction of lifting no more than thirty pounds
constitutes a disability that substantially limits the major life activity of lifting.”). The Seventh
Circuit has not, since 2008, issued a ruling declaring at what point a lifting restriction is to be
considered a substantial impairment. Regulatory guidance, however, suggests that a restriction
of twenty pounds should be considered a substantial impairment. See 29 C.F.R. pt. 1630, app.
§ 1630.2(j)(1)(viii) (2014) (“[S]omeone with an impairment resulting in a 20-pound lifting
restriction . . . is substantially limited in the major life activity of lifting”). In addition, “[t]he
definition of disability in [the ADA] shall be construed in favor of broad coverage of individuals
under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. §
12102(4)(A). A reasonable jury could determine that Crain’s lifting restrictions constitute
impairment substantially limiting a major life activity, and that she is thereby disabled within the
meaning of the ADA.

8

Second, Petersen argues that Crain cannot show that she was able to perform the essential
functions of her job with or without reasonable accommodation. Petersen argues that because
both transportation aide and CNA jobs required employees to be able to lift more than Crain was
able to lift, she could not perform the job with or without accommodation. If the job descriptions
alone were dispositive, perhaps this would be so. Crain was not supposed to lift more than thirty
pounds to shoulder height, or carry more than thirty-five pounds, and the job descriptions for
both CNA and transportation aide require more. But, while the employer’s judgment as to what
a job requires is “an important factor . . . it is not controlling.” Miller, 643 F.3d at 198. 29
C.F.R. § 1630.2(n)(3) directs courts to look to the current work experiences of other employees.
Here, much of that evidence suggests that the official job descriptions upon which Petersen relies
do not tell the whole story.
Crain testified that she was able to perform both the transportation aide and CNA jobs at
Roseville for years, before and after her surgery and before and after the change in ownership.
Crain Dep. 83. Jacobs opined that Crain’s weight restrictions would not have prevented her from
doing the job of either a CNA or transportation aide, and that mechanical lifts were used to move
people, if they had to be lifted. Jacobs Dep. 17–18. Jacobs also stated that, during the period
that Crain had worked for her, Crain had not been unable to perform any part of the job as a
result of her lifting restrictions. Id. at 55. Jacobs also testified that the jobs of CNA and
transportation assistant would not ever require someone to lift more than Crain was able to lift,
except in the instance where a person had to be lifted, in which cases, a lift would be used. Id. at
17–18, 24–25. Anderson, who had also supervised Crain, had never found her unable to do her
job either. Anderson Dep. 34–35. Petersen offers no evidence to rebut this testimony, either in
the form of testimony describing what its CNAs and transportation aides actually do, or in the

9

form of evidence suggesting that Crain, who had been under lifting restrictions for roughly five
years before her firing, was ever unable to meet Petersen’s expectations as a transportation aide
or CNA. Additionally, Petersen makes no representation as to what reasonable accommodation
might be accorded to an employee with a lifting restriction, even though “[e]mployers must, at a
minimum, consider possible modifications of jobs, processes, or tasks so as to allow an
employee with a disability to work, even where established practices or methods seem to be the
most efficient or serve otherwise legitimate purposes in the workplace.” Miller, 643 F.3d at 199.
Crain has made a sufficient showing, for purposes of summary judgment, that she could perform
the jobs of transportation aide and CNA with or without reasonable accommodation.
Petersen suggests, relying on Gratzl v. Office of Chief Judges of 12th, 18th, 19th, & 22nd
Judicial Circuits, 601 F.3d 674, 679 (7th Cir. 2010), that Crain has failed to overcome the
presumption that an employer’s understanding of the essential functions of a job are correct.
Reply 25, ECF No. 27. The argument confuses a requirement with a function. In Gratzl, the
Seventh Circuit determined that an in-court reporter had not rebutted the presumption, created by
her employer’s understanding, that an essential function of her job was rotating through
courtrooms. Gratzl, 601 F.3d at 679–80. But Crain has not disputed any of Petersen’s views
about what the functions of her job were. Rather, she has contested Petersen’s estimation of the
physical lifting capacity it took to perform those functions. And, as explained above, she has
done so sufficiently to create a jury question about whether or not she possessed the capacity to
perform the functions the job actually required, with or without reasonable accommodation.
b. Knowledge of Crain’s Disability
Petersen argues that Crain did not provide it with notice of her lifting restrictions, and
thus, that it could not have had knowledge of those restrictions. Mot. Summ. J. 9. Petersen

10

states that this is so because “Crain provided a doctor’s note issued to her former employer,
American Health, prior to Petersen’s purchase of Roseville . . . .” Id. However, both Crain’s and
Logue’s deposition testimony is that at the meeting where Crain says she was fired, Logue told
Crain that Crain had been violating her lifting restrictions by lifting more than she had been
permitted to by her doctor. Logue Dep. 63–68; Crain Dep. 78 (“[Logue] told me that I was let go
until I went to a doctor and got a note lifting my restrictions because no one at Petersen homes
could work with restrictions.”). Logue was a Petersen administrator. Add to this the fact that
Crain submitted the doctor’s note containing her lifting restrictions along with her note to
Anderson, and that her application for employment, filed when Petersen took over the nursing
home, clearly and repeatedly describes the nature of her lifting restrictions, with reference to
doctor’s diagnoses and recommendations. The record thus contains evidence from which a jury
could infer that Petersen knew of Crain’s lifting restrictions.
Petersen is splitting hairs by arguing that, while it may have known of a “lifting issue,”
this was not the same as Crain’s “purported disability.” Reply 23. As explained above, Crain’s
“lifting issue,” understood as her inability to lift certain amounts of weight in certain ways,
constituted her disability; there was nothing more for Petersen to know. Wells v. Winnebago
Cty., Ill., 820 F.3d 864, 867 (7th Cir. 2016), upon which Petersen seeks to rely, is thus
inapposite. In Wells, the Seventh Circuit held that an employee who suffered from chronic
fatigue syndrome had inadequately notified her employer of her disability by simply asserting
that she needed an accommodation because she suffered from chronic fatigue syndrome, without
providing any kind of doctor’s diagnosis in support, and by stating that she suffered from
anxiety. Id. at 867. Here, Crain related in detail, and with support by reference to surgeries and
a doctor’s diagnosis, and by providing a copy of that diagnosis, that she was under weight

11

restrictions which, as explained, a jury could construe as themselves constituting a disability. Cf.
Ekstrand v. School District of Somerset, 583 F.3d 972, 976 (7th Cir. 2009) (“[D]isabled
employees must make their employers aware of any nonobvious, medically necessary
accommodations with corroborating evidence such as a doctor’s note or at least orally relaying a
statement from a doctor, before an employer may be required under the ADA’s reasonableness
standard to provide a specific modest accommodation.”). Crain has made a showing sufficient
for the purposes of summary judgment that Petersen was aware she suffered from a disability.
CONCLUSION
Accordingly, Defendant Petersen’s motion for summary judgment, ECF No. 25, is
DENIED. The final pretrial conference and jury trial in this case, which were vacated, are reset
as follows: the final pretrial conference is to be held on June 28, 2017 at 1:30 p.m. at the Rock
Island courthouse, and the jury trial on July 24, 2017 at 9:00 a.m., also at the Rock Island
courthouse. The parties are directed to submit a proposed pretrial order by June 21, 2017 that
shall conform in form and content to the requirements of Central District of Illinois Local Rule
16.1(F).

Entered this 21st day of March, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

12