Andrews v. The City Of Chicago
Filing
51
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 9/30/2011:Mailed notice(mpj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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Frances Andrews
Plaintiff,
v.
The City of Chicago,
Defendant.
No. 10 C 2416
MEMORANDUM OPINION AND ORDER
On
April
complaint
alleging
19,
against
2010,
her
Frances
Andrews
filed
former
employer,
the
and
retaliation
in
discrimination
a
City
three-count
of
violation
Chicago,
of
the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
and a Family Medical Leave Act (“FMLA”), 29 U.S.C.A. § 2601 et
seq., interference claim.
Now before me is defendant’s motion for
summary judgment of all claims, which I grant for the reasons that
follow.
I.
Plaintiff began working for the City of Chicago in December of
1996.
She occupied several positions in various departments over
the years.
Plaintiff uses a wheelchair on a permanent basis and
did so throughout her employment with the City.
Also throughout
her employment, she attended physical therapy, with the City’s
permission, two to three times a week, on a rotating, every-thirdday basis.
In
the
fall
of
2006,
plaintiff
began
working
for
the
Department of Buildings as an at-will, Shakman-exempt employee with
the title of Deputy Commissioner.
In mid-June of 2007, Richard
Rodriguez, who was then the Commissioner of the Department of
Construction and Permits, received a second, concurrent appointment
as the Commissioner of the Department of Buildings. Within days of
his appointment, Rodriguez initiated the merger of the two City
departments he led.
Rodriguez testified that after reviewing
department organizational charts and researching job descriptions
to identify how jobs could be consolidated, he decided to eliminate
certain
positions
to
“create
efficiencies,”
and
to
“decrease
expenses as much as possible.”
Plaintiff states that the first time she met with Rodriguez
after his appointment was on June 18, 2007, and that she told him
at that time about her physical therapy schedule.
plaintiff,
Rodriguez
requested
that
she
According to
provide
him
with
documentation of the schedule, which they agreed she would do by
Friday, June 22, 2007.
Plaintiff did not speak to Rodriguez again
before she and three other Deputy Commissioners were terminated on
Friday, June 22, 2007.
The parties agree that plaintiff’s performance was not a
factor in her termination.
In fact, Rodriguez testified that he
had not worked with plaintiff long enough to gauge her performance
at all before making the decision to terminate her.
He stated,
“[i]t was not her, it was the title that she held. ... I had
already thought about what titles, if we had to replace any, which
titles we would have to replace.”
Rodriguez testified that only
two Deputy Commissioners were retained after the merger: Dennis
Mondero, who had previously been general counsel in the department,
and Kevin Bush, a plumber who “supervised the plumbers and helped
oversee
the
inspectors.”1
The
record
does
not
reveal
the
disability status of either of these individuals.
II.
Summary judgment is appropriate when “the pleadings, discovery
and disclosure materials on file, as well as any affidavits,
demonstrate that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.”
v. Cook County, 563 F.3d 598, 603
(7th Cir. 2009).
Winsley
In determining
whether a genuine factual dispute exists, I must construe all facts
in the light most favorable to plaintiff and draw all justifiable
inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
Still, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment,” id., at 247-48
(original emphasis), nor will the existence of “some metaphysical
1
I note that for its description of Mr. Bush’s
qualifications, the City cites to a portion of Mr. Rodriguez’s
testimony not included in the exhibits the City filed. But since
plaintiff admits that Mr. Rodriguez testified as the City claims,
I assume the citation is accurate.
doubt as to the material facts.”
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Plaintiff must come
forward with more than a mere scintilla of evidence in her favor to
survive defendant’s motion. Anderson, 477 U.S. at 251-52.
The ADA makes it unlawful for employers to discriminate
against an employee on the basis of her disability.
Dickerson v.
Board of Trustees of Community College District No. 522,---F.3d---,
2011 WL 4349395, at *3 (7th Cir. 2011). A plaintiff can prove
disability
discrimination
by
using
either
indirect method of proof. Id. at *4.
the
direct
or
the
The direct method requires
either “an admission by the decision maker that his or her actions
were based on the prohibited animus,” or “circumstantial evidence
that allows a jury to infer intentional discrimination.”
Id.
The indirect method requires a plaintiff first to establish a
prima facie case of discrimination by showing that: 1) she is
disabled
under
the
ADA;
2)
she
was
meeting
her
employer’s
legitimate employment expectations; 3) she suffered an adverse
employment action; and 4) similarly situated employees without a
disability were treated more favorably.
Id.
If a plaintiff
establishes a prima facie case, the burden of production shifts to
the employer to articulate a legitimate, non-discriminatory reason
for its employment decision.
Id.
If the employer does so, the
burden shifts back to the plaintiff to prove by a preponderance of
the evidence that the employer’s stated reasons are pretextual.
Id.
Defendant
first
argues
that
plaintiff
can
point
to
no
evidence, either direct or circumstantial, to prevail under the
direct method.
Defendant further argues that plaintiff cannot
prevail on the indirect method because she fails to establish a
prima facie case, and because even assuming that she could do so,
she points to no evidence that the City’s proffered reasons for
terminating her were pretextual.
Plaintiff’s misguided response to defendant’s motion, which
makes no reference at all to the legal framework or principles
applicable
to
her
ADA
claims,
reveals
a
fundamental
misunderstanding of what is required to withstand summary judgment
of such claims.
Plaintiff rests her entire discrimination case on
the speculation that because the “only” information Rodriguez had
about her at the time he terminated her employment was 1) that she
was
wheelchair
bound,
and
2)
that
she
had
requested
an
accommodation so that she could undergo physical therapy, these
factors must have been what motivated his decision to terminate
her.
record
Even assuming that this theory accurately reflected the
(a
controvert
questionable
evidence
that
assumption,
Rodriguez
since
also
plaintiff
knew
does
not
plaintiff’s
job
title), plaintiff proceeds without reference or regard to the
elements of her claim, much less to the burdens she must carry to
withstand summary judgment. Plaintiff is not entitled to freewheel
her way to trial on arguments that ignore her own evidentiary
burden, and that fail to respond to defendant’s properly supported
motion.
Summary judgment may be appropriate based on this failure
alone.
For the sake of completeness, however, I briefly explain,
with reference to the appropriate legal standards, why plaintiff’s
claims cannot survive defendant’s motion.
Plaintiff has presented no direct evidence that Rodriguez
intentionally discriminated against her.
She does not claim that
Rodriguez admitted his actions were motivated by her disability,
nor has she presented circumstantial evidence of the kind necessary
to survive summary judgment.
See Dickerson, 2011 WL 4349395 at *4
(“The type of circumstantial evidence that a plaintiff may produce
to survive summary judgment includes: (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.”) Indeed, plaintiff does not argue that any of the facts
she asserts amount to direct evidence of discrimination, but
instead builds her case explicitly upon inferences.
Accordingly,
I conclude without difficulty that plaintiff lacks sufficient
direct evidence of discrimination to withstand summary judgment
using the direct method of proof.
To survive summary judgment using the indirect method of
proof, plaintiff would first have to establish a prima facie case
of disability discrimination by showing, among other factors, that
similarly situated employees without a disability were treated more
favorably than she.
See Dickerson, 2011 WL 4349395, at *4.
Plaintiff makes no effort to do so, and indeed, she fails to
identify any evidence in the record from which one could draw this
conclusion.
As noted above, the disability status of only the two
Deputy Commissioners who were not terminated along with plaintiff
is unknown.
Moreover, plaintiff offers no evidence to rebut
defendants’ assertion that these Deputy Commissioners were retained
because of their particular qualifications, which allowed them to
perform functions plaintiff does not claim to be qualified to
perform.2
Accordingly, plaintiff fails to establish a prima facie
case of discrimination, and there is no need to proceed further
with respect to her claim under the indirect method of proof.3
I now proceed to plaintiff’s ADA retaliation claim, which
requires little discussion.
To prevail on such a claim, plaintiff
must prove 1) that she engaged in a statutorily protected activity;
2) that she suffered an adverse action; and 3) a causal connection
2
Plaintiff’s objection that defendant’s evidence should be
disregarded as the testimony of an interested witness is without
merit, and it rings particularly hollow in view of the fact that
it is plaintiff who bears the initial burden of establishing that
similarly situated, non-disabled employees were treated better
than she--a burden she does not endeavor to carry.
3
Again for completeness, however, I note that defendant
articulates a non-discriminatory reason for her termination: to
create efficiencies and reduce expenses post-departmental
consolidation. Plaintiff presents no evidence to suggest that
this reason was a pretext, so her claim could not proceed using
the indirect method of proof, even if she had carried her initial
burden.
between the two.
Dickerson, 2011 WL 4349395, at *5.
Plaintiff’s
claim falters at the gate because she identifies no statutorily
protected activity.
See Durkin v. City of Chicago, 341 F.3d 606,
614-15 (7th Cir. 2003) (“It is axiomatic that a plaintiff engage in
statutorily protected activity before an employer can retaliate
against her for engaging in statutorily protected activity.”)
Moreover, defendant raises this argument in its motion, but
plaintiff
offers
retaliation claim.
no
response,
effectively
abandoning
her
See Andree v. Siemens Energy and Automation,
Inc, 90 Fed. App’x 145, 152 (7th Cir. 2003) (concluding that claim
was abandoned when plaintiff failed to respond to argument raised
in motion for summary judgment, and further noting that “[a] party
opposing a summary judgment motion must inform the trial judge of
the reasons, legal or factual, why summary judgment should not be
entered.” Id., quoting Robyns v. Reliance Std. Life Ins. Co., 130
F.3d 1231, 1237 (7th Cir.1997)).
Finally, plaintiff’s FMLA interference claim borders on the
frivolous.
Even setting aside defendant’s facially colorable
argument that the claim is time-barred, plaintiff does not even
claim to have provided notice of her intent to take leave, or to
have been denied benefits to which she was entitled, both of which
are essential elements of her claim.
F.3d 694, 699 (7th Cir. 2009).
entirely
on
her
testimony
See Smith v. Hope School, 560
Plaintiff’s claim appears to rest
that
8
if
had
defendant
stopped
accommodating her need to attend physical therapy, her “next step”
would have been to request intermittent leave under the FMLA,
coupled with her speculation that defendant would have denied her
hypothetical request.
This theory plainly has no legs in the law,
or in the facts of this case.
III.
For the foregoing reasons, defendant’s motion for summary
judgment is granted.
ENTER ORDER:
________________________
Elaine E. Bucklo
United States District Judge
Dated: September 30, 2011
9
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