Ransom v. Levy Security Corporation

Filing 40

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 6/17/2013: As stated in this decision, the Court grants defendant's motion for summary judgment 26 as to count 4 of plaintiff's complaint but denies the motion as to counts 1, 2, and 3. A status hearing is set for June 25, 2013 at 9:30 a.m. for the purpose of setting a trial date and discussing the possibility of settlement. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CARLA RANSOM,
Plaintiff,
vs.
LEVY SECURITY CORP.,
Defendant.

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No. 11 C 7979

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Carla Ransom, a forty-four-year-old African-American woman, has sued her
former employer, Levy Security Corporation, alleging retaliation for complaining about
discrimination and for filing worker’s compensation claims. Levy has moved for
summary judgment. In considering the motion, the Court views the record in the light
most favorable to Ransom and draws reasonable inferences in her favor. See, e.g.,
Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir. 2010).
Ransom worked for Levy as a public safety officer starting in 2005. She suffered
two knee injuries on the job and went on medical leave beginning July 2008. She also
filed two worker’s compensation claims. Ransom was cleared to return to work in
January 2009 with certain restrictions. These restrictions remained in place throughout
the remainder of her employment.
After she returned to work, Ransom filed a number of grievances as a result of a
number of workplace incidents, several of which she contended amounted to

discriminatory treatment. In July 2009, Ransom filed a charge with the EEOC, claiming
discrimination based on race, sex, age, and disability.
Ransom contends that in retaliation for her worker’s compensation claim and her
grievances and EEOC charge, Levy directed her to undergo a fitness-for-duty
evaluation in September 2009. Ransom says, and a reasonable jury could find, that
she complied with Levy’s directions and was given a positive fitness evaluation. Levy
rejected this evaluation and directed another evaluation by a psychologist of its
choosing. A reasonable jury could find that this was a departure from Levy’s usual
practice. The psychologist concluded that Ransom was unfit for duty. As a result, Levy
put Ransom on unpaid FMLA leave pending a third evaluation.
Ransom then obtained an evaluation by a psychiatrist, who concluded that she
was “stable” and did not present a danger to herself or others. Levy rejected this
conclusion and directed an evaluation by a psychologist whom it had chosen. This
psychologist found Ransom unfit for duty. On December 22, 2009, Ransom’s FMLA
leave expired, and Levy terminated her employment.
Discussion
A.

Federal retaliation claims
Ransom alleges that she suffered adverse employment actions when she was

required to undergo fitness-for-duty examinations; placed on involuntary, unpaid leave;
and terminated. Levy argues that the first two of these are not actionable. A plaintiff in
a retaliation case must show that a reasonable employee would have found the
challenged action is such that “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington Northern Santa Fe Ry. Co.

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v. White, 548 U.S. 53, 68 (2006). Viewing the evidence in the light most favorable to
Ransom, a jury reasonably could find that a reasonable employee might be dissuaded
from complaining about discrimination by the threat of being forced into a mental health
evaluation as well as by what amounts to an extended suspension without pay. See,
e.g., Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 704 (7th Cir. 2012) (forced
unpaid leave of absence constitutes adverse action).
Levy also challenges Ransom’s ability to prove a causal connection between her
complaints and the claimed adverse actions. There is sufficient direct (including
circumstantial) evidence of retaliation to permit a reasonable jury to find causation. But
Levy’s summary judgment memorandum contains a virtual admission that it imposed
the fitness for duty requirement because of Levy’s grievances, at least some of which
alleged discrimination. Specifically, Levy says that Ransom engaged in “erratic
behavior [that] included filing numerous grievances and complaints . . ., including two
sexual harassment claims” and that “[a]s a result of her erratic and threatening
behavior, [Ransom] was asked to take a fitness for duty evaluation.” Def.’s Mem. at 2.
This same connection is drawn in the “to whom it may concern” memo that Levy sent to
Ransom as part of the direction to undergo a fitness examination. In short, Levy itself
indicates a connection between Ransom’s complaints and the requirement to undergo a
fitness for duty exam. To be sure, Levy claims this was entirely justified based on
factors other than legitimate complaints by Ransom about prohibited discrimination, but
that involves genuinely disputed fact issues that a jury must decide.
A reasonable jury could find that the fitness for duty exam requirement led
inexorably to Ransom’s termination and that this is what Levy intended. In particular, a

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reasonable jury could find that Levy rigged the exam requirement by changing the rules
after the fact, to make sure that it came up with a basis to terminate Ransom. More
specifically, a reasonable jury could find that Ransom’s first evaluator, chosen in the
manner Levy directed and in accordance with its written policies, deemed her fit for
duty, but that Levy, in a variation from those same policies, required a second
evaluation. Levy says this because the first evaluator, Phillips, was not a psychologist
and did not unequivocally state that Ransom was fit for duty. But Levy’s letter to
Ransom directing her to undergo a fitness evaluation did not require her to see a
psychologist but instead required only that she see a “mental health specialist of her
choice,” which is what Phillips was. And a reasonable jury could conclude that Phillips’
statement that Ransom’s “prognosis to return to work appears favorable” meant that
she was fit for duty and that by requiring a second examination, Levy made it clear that
it was going to keep trying until it got a finding of unfitness. Levy can explain all of this
with evidence a reasonable jury might well accept, but on summary judgment,
inferences are drawn in in Ransom’s favor, and a jury reasonably could find for Ransom
on her federal retaliation claims.
B.

Workers’ compensation retaliation claim
The Court reaches a different conclusion regarding Ransom’s claim that Levy

terminated her because she filed workers’ compensation claims. To prevail on this
claim, Ransom must show that: she was employed by Levy before being injured; she
exercised a right under the IWCA; and her discharge was causally connected to the
exercise of her right. Gordon v. FedEx Freight, Inc., 674 F.3d 769, 773 (7th Cir. 2012).
Ransom relies on the same circumstantial evidence for this retaliation claim as

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she did for her federal retaliation claims. But unlike those claims, there is no direct or
even circumstantial evidence of a causal connection between Ransom’s filing or
prosecution of worker’s compensation claims and the adverse action that Levy took
against her. To be more specific, although there is evidence suggestive of a causal
connection between Ransom’s complaints about discrimination and the fitness-for-duty
examination and Levy’s ensuing actions, there is no evidence from which a reasonable
jury could find such a connection with her earlier filing of worker’s compensation claims.
And assuming, for purposes of discussion, that the indirect, burden-shifting approach
applies to a common law retaliation claim, Ransom has offered no evidence of any
other employees who did not file worker’s compensation claims, were otherwise
similarly situated to Ransom, but were treated better. Levy is entitled to summary
judgment on this claim.
Conclusion
For the foregoing reasons, the Court grants Levy’s motion for summary judgment
[docket no. 26] as to count 4 of plaintiff’s complaint but denies the motion as to counts
1, 2, and 3. A status hearing is set for June 25, 2013 at 9:30 a.m. for the purpose of
setting a trial date and discussing the possibility of settlement.

MATTHEW F. KENNELLY
United States District Judge
Date: June 17, 2013

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