Kaitschuck v. Doc's Drugs, Ltd. et al
Filing
53
MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 4/15/2014: Mailed notice (mw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHLENE KAITSCHUCK,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DOC’S DRUGS, LTD., et al.,
Defendants.
No. 13 C 1985
MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Kathlene Kaitschuck’s (Kaitschuck)
motion for summary judgment, and on Defendants’ motion for summary judgment.
For the reasons stated below, Kaitschuck’s motion for summary judgment is denied,
Defendants’ motion for summary judgment is granted in part, and denied in part, and
the remaining state law claims are dismissed without prejudice.
BACKGROUND
Kaitschuck allegedly was working for Defendant Doc’s Drugs, LTD, (DDL)
as a Pharmacy Technician for many years and continued to work at DDL until the
termination of her employment in 2012. In 2010, DDL implemented a Pharmacy
Technician Program (Program) under which a Pharmacy Technician was required to
obtain certification by the Pharmacy Technician Certification Board (Certification)
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as a condition of employment for DDL. Under the Program, any Pharmacy
Technician licensed before January 1, 2008 had to obtain the Certification before
January 1, 2012. Kaitschuck claims that in the summer of 2011, she requested
medical leave for foot surgery from her supervisor Defendant Jeff Haran (Haran) and
the request was approved from May 17, 2011 to September 26, 2011. Kaitschuck
allegedly returned to work and on November 30, 2011, she requested medical leave
from Haran for neck surgery. Haran allegedly approved the leave starting on
December 12, 2011. At the end of 2011, Kaitschuck had failed to obtain the
Certification and had failed to even attempt to take the exam for the Certification
(Exam). On January 10, 2012, Kaitschuck’s husband allegedly went to DDL
corporate office to submit Kaitschuck’s disability insurance program and was asked
whether Kaitschuck had obtained the Certification. Kaitschuck’s husband allegedly
indicated that Kaitschuck had not obtained the Certification and that same day Haran
allegedly sent a letter to Kaitschuck informing her that her employment had been
terminated. Kaitschuck includes in her amended complaint intentional infliction of
emotional distress (IIED) claims (Count I), a claim alleging discrimination based on
Kaitschuck’s perceived and actual disability in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (Count II), an ADA retaliation
claim (Compl. Par. 113), (Count II), an ADA failure to accommodate claim (Count
III), and a claim alleging retaliation in violation of the Family Medical Leave Act
(FMLA), 29 U.S.C. § 2601 et seq. (Count IV). Kaitschuck now moves for summary
judgment and Defendants have filed a cross-motion for summary judgment.
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LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A “genuine
issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a
motion for summary judgment, the court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for
summary judgment, the court should “construe the evidence and all reasonable
inferences in favor of the party against whom the motion under consideration is
made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27
(7th Cir. 2005).
DISCUSSION
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I. Kaitschuck’s Motion For Summary Judgment
Kaitschuck moves for summary judgment in her favor on all claims.
Kaitschuck argues that she can proceed on her motion for summary judgment under
the direct or indirect methods of proof. (P SJ Mem. 8). However, the direct and
indirect methods of proof are options available to a plaintiff trying to defeat a
defendant’s motion for summary judgment, and not to a plaintiff seeking to have
judgment entered in the plaintiff’s favor at the summary judgment stage. See, e.g.,
Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006)(explaining how a
plaintiff can “prove discrimination” and “may prevail in an employment
discrimination lawsuit,” when explaining how a plaintiff can defeat a defendant’s
motion for summary judgment); Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir.
2013)(explaining that in responding to an employer’s motion for summary judgment,
the plaintiff must initially identify whether he is making arguments under the direct
or indirect method of proof or both); Hall v. Forest River, Inc., 536 F.3d 615, 621
(7th Cir. 2008)(stating that at the trial stage “the burden-shifting of the McDonnell
Douglas method falls away, and the question is simply whether that evidence is
sufficient to allow a reasonable jury to find in favor of the plaintiff”); Dewitt v.
Proctor Hosp., 517 F.3d 944, 950 (7th Cir. 2008)(stating that “[t]he standard
understanding is that there are two ways to make out a prima facie case of
discrimination—which is to say, a showing in advance of trial sufficient to defeat the
defendant’s motion for summary judgment”)(Posner, Circuit Judge, concurring);
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Salvadori v. Franklin School Dist., 293 F.3d 989, 996 (7th Cir. 2002)(stating that
“[i]f a plaintiff cannot defeat a summary judgment motion based on the strength of
her proffered direct evidence, she may use the burden-shifting approach outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973)”); Curry v. Menard, Inc., 270 F.3d 473, 481 (7th Cir. 2001)(stating that “the
burden-shifting approach of McDonnell Douglas applies only to pretrial proceedings
and drops out once a case goes past the summary-judgment stage”). Kaitschuck cites
Ley v. Wisconsin Bell, Inc., 819 F.Supp. 2d 864 (E.D. Wis. 2011), in support of her
argument on her motion for summary judgment. However, in Ley, the court
addressed the direct and indirect method of proof in ruling on a motion for summary
judgment filed by the defendant and indicated that the case would proceed further.
Id.
The court has considered the merits of Kaitschuck’s motion for summary
judgment under Federal Rule of Civil Procedure 56. In order to obtain judgment as a
matter of law, she must show that there is no genuine issue as to any material fact
and that she is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
Kaitschuck must establish that no reasonable trier of fact could find in favor of
Defendants on Kaitschuck’s claims. Anderson, 477 U.S. at 248. Defendants have
pointed to ample evidence showing that Kaitschuck’s employment was terminated
due to her failure to obtain her required Certification and not due to any perceived or
actual disability, or due to any exercise of her rights under the ADA or FMLA.
Kaitschuck has failed to explain in her motion why such evidence is not admissible
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or why she believes in light of such evidence that she is entitled to judgment as a
matter of law on any of her claims. Based on the above, Kaitschuck’s motion for
summary judgment is denied.
II. Defendants’ Motion for Summary Judgment
Defendants move for summary judgment on all claims.
A. ADA Discrimination and Failure-to-Accommodate Claims
Defendants move for summary judgment on the ADA discrimination and
failure to accommodate claims, arguing that Kaitschuck is not a qualified individual,
and that Kaitschuck cannot defeat Defendants’ motion under the direct or indirect
method of proof.
1. Qualified Individual
Defendants argue that Kaitschuck has not shown that she is a qualified
individual under the ADA. The ADA provides that “[n]o 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). The ADA also requires an employer to
provide reasonable accommodations to a qualified individual with a disability.
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James v. Hyatt Regency Chicago, 707 F.3d 775, 782-83 (7th Cir. 2013). The ADA
defines a “qualified individual” as “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 contend that an essential function of Kaitschuck’s job required her
to obtain the Certification before January 1, 2012 as a condition of her employment.
(D SF Par. 20, 21, 26). Pursuant to 42 U.S.C. § 12111(8), in determining whether an
individual is a qualified individual, “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.” Id. It
is undisputed that effective January 1, 2010, DDL implemented the Program under
which a Pharmacy Technician was required to obtain the Certification as a condition
of employment for DDL. (R DSF Par. 5). It is also undisputed that under the
Program, any Pharmacy Technician licensed before January 1, 2008 had to obtain the
Certification before January 1, 2012. (R DSF Par. 6). Thus, the Certification was
determined by DDL to be an essential function for a Pharmacy Technician. It is
further undisputed that Kaitschuck was a Pharmacy Technician who was licensed
before January 1, 2008, and that Kaitschuck never obtained the Certification. (R
DSF Par. 10, 27).
Kaitschuck argues that she was able to perform the essential functions of her
job, and that this is shown by her good performance reviews over the years while
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working for DDL. (Ans. DSJ 2, 6); (PSF Par. 15). However, whether or not
Kaitschuck performed certain functions well during her employment is irrelevant if
she was not properly qualified to do all the functions of her job as required by her
employer. DDL determined that such Certification was a requirement for
Kaitschuck’s job and DDL gave a sufficient period of time for employees in
Kaitschuck’s situation who were licensed before January 1, 2008, to obtain the
required certification by January 1, 2012.
Kaitschuck also contends that “the law did not require Pharmacy Technicians
licensed prior to January 1, 2008 to pass the Exam.” (PSF Par. 16). However,
Kaitschuck cites no precedent that provides that if certain requirements are not
present in a law, that an employer cannot determine any requirements for a job. In
fact, the ADA makes such a point clear by providing that “consideration shall be
given to the employer’s judgment as to what functions of a job are essential. . . .” 42
U.S.C. § 12111(8). Defendants have presented ample evidence showing a legitimate
business reason to justify the implementation of the Program that required
Certification.
Kaitschuck also argues that she was on medical leave during some time after
the initiation of the Program and was not able to prepare for or take the Exam. (Ans.
D SJ 6). It is undisputed that the Program was initiated on January 1, 2010, and that
in “January 2010, or a little bit after,” Kaitschuck became aware of the Program. (R
DSF Par. 11). Kaitschuck claims she took leave from May 17, 2011 to September
26, 2011 and leave from December 12, 2011 until her termination in January 2012.
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(PSF Par. 29, 34). Kaitschuck fails however, to point to evidence to explain why in
the ample remaining time, which by her own assertions, was approximately nineteen
months during the two years she was given to obtain the Certification, she failed to
do so. Although Kaitschuck now claims that her termination due to her failure to
obtain the Certification was a reason suddenly manufactured as an excuse to fire her,
there are ample undisputed facts illustrating DDL’s efforts during the two-year
window to provide Kaitschuck ample opportunities to get the Certification and to let
her know that she would not be able to work at DDL if she did not do so by the
deadline.
It is undisputed that in October 2011, Sonia Chugh (Chugh), the Pharmacist in
Charge at DDL asked Kaitschuck if she intended to take the Exam. (R DSF Par. 13).
Defendants contend in statement of facts paragraph 14 (Paragraph 14) that
Kaitschuck responded that she would not be taking the test because she thought she
was “grandfathered” and she had “personal reasons” not to take the Exam. (DSF
Par. 14). Kaitschuck responds to Paragraph 14, by stating “Disputed, but
immaterial.” (R DSF Par. 14). However, Kaitschuck fails to point to evidence to
support her response as required pursuant to Local Rule 56.1. Kaitschuck contends
that she informed Chugh that she would not take the test because of her surgeries. (R
DSF Par. 14). Such a response does not contradict the above-referenced facts in
Paragraph 14. A review of Kaitschuck’s deposition in fact shows that Kaitschuck
testified that she told Chugh that she “probably wouldn’t be” taking the test “because
[she] thought [she] was grandfathered in and [she] had personal reasons for not
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taking it.” (K Dep. 46). Kaitschuck cannot defeat Defendants’ motion by creating a
dispute where none exist, and Kaitschuck improperly seeks to dispute the facts in
Paragraph 14. Pursuant to Local Rule 56.1, such facts are deemed undisputed.
It is also undisputed that Chugh reported to Christy Enz (Enz), DDL’s
Pharmacy Director that Kaitschuck “was refusing” to obtain the Certification and
that Enz reported such facts to Haran who was responsible for matters relating to
human resources at DDL. (R DSF Par. 16). Kaitschuck admits that Haran and Enz
then issued a letter (Warning Letter) reminding employees that if they failed to
obtain the Certification by December 31, 2011, DDL would terminate their
employment. (R DSF Par. 17). Kaitschuck further admits that in October 2011,
Chugh provided Kaitschuck with a warning letter. (R DSF Par. 17-18). Kaitschuck
attempts to avoid the ramifications of the Warning Letter by arguing that the
Certification requirement was not included in the employee handbook. However,
any contents of the handbook in no way negated the clear and unequivocal warning
provided to Kaitschuck in the Warning Letter. Kaitschuck admits that after receiving
the Warning Letter she again informed Chugh that she did not intend to take the
Exam. (R DSF Par. 19). It is further undisputed that even after getting the Warning
Letter in October 2011, Kaitschuck failed to register for the Exam. (R DSF Par. 22).
Kaitschuck contends that she was “on medical leave for most of 2011.” (R DSF Par.
22). However, such a statement is not supported by Kaitschuck’s own admissions.
Kaitschuck has admitted that she was on leave from May 17, 2011 to September 26,
2011, and from December 12, 2011, until her termination in January 2012.
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Therefore, Kaitschuck was not on leave and was available to register for the Exam
from January 2011 to May 17, 2011, a four and a half month period, and from
September 26, 2011 to December 12, 2011, almost a two and a half month period.
This totals a seven month period when she was not on leave in 2011, and thus
Kaitschuck was not on leave for most of 2011 as she claims.
In addition, Kaitschuck admitted at her deposition that she did not even look
into what was required to register for the Exam. (K Dep. 98). Kaitschuck also
indicated at her deposition that she was not intending to take the Exam because
Pharmacy Technicians “had to study for [the Exam] on [their] own time, and [she]
wasn’t very agreeable to that, because ” her “personal time is [her] personal time at
home.” (K Dep. 97). It is also undisputed that DDL offered its employees an online
certification training course (Course) at no charge to employees. (R DSF Par. 23).
Kaitschuck claims that she was unaware of the Course, but she points to no evidence
that the Course was unavailable to her if she made a relevant inquiry, or that DDL
took any efforts to conceal the existence of the Course from Kaitschuck. (R DSF
Par. 23); (R PSAF Par. 62). If Kaitschuck was concerned about impediments to
prepare or take the Exam, she would have made the necessary inquiries. However,
the record clearly shows that Kaitschuck repeatedly refused to take the Exam. It is
undisputed that Kaitschuck was physically able to request additional time to obtain
Certification and her surgery did not prevent her from doing so. (R DSF Par. 24-25).
Kaitschuck admits that, after repeatedly telling DDL that she did not intend to take
the Exam, she at no time prior to the January 1, 2012, deadline stated to anyone at
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DDL that she had changed her mind and intended to take the Exam or that she
needed additional time to do so. (R DSF Par. 24-25). Thus, the undisputed facts
show that Kaitschuck indicated to DDL that she was not going to take the Exam even
after having been given two years to do so, and after being warned in writing that
failure to take the Exam would result in the termination of her employment.
Kaitschuck’s testimony shows that among the reasons for not taking the Exam was
her belief that she was “grandfathered in” and that she did not think it was fair to
make her study for the Exam on her personal time. (K Dep. 46). DDL also points to
further undisputed facts that show that after Kaitschuck’s termination she
subsequently applied for other Pharmacy Technician jobs which required the
Certification and she still has not attempted to obtain the Certification. (R DSF Par.
27). Such facts belie any suggestion that Kaitschuck would have obtained the
Certification at DDL if she had in fact requested such an extension.
The undisputed facts show that DDL reasonably decided that Certification was
an essential function of Kaitschuck’s job. The undisputed facts also show that
regardless of any perceived or actual disability, Kaitschuck was not willing to obtain
the Certification and failed to make reasonable efforts to do so. Kaitschuck also
attempts to make a distinction as to whether DDL asked her to merely take the Exam
or to actually succeed on the Exam and obtain the Certification. Whether certain
individuals asked at one point whether Kaitschuck was going to take the Exam or
whether they asked if she was going to obtain Certification is mere semantics and is
not material. If Kaitschuck was refusing to even take the Exam, then it was a
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foregone conclusion that she also was not intending to obtain the Certification.
Further, Kaitschuck was fully aware of the Program that required the employees in
her position to obtain Certification by a certain date and she was further warned that
failure to obtain Certification would result in termination of her employment.
Kaitschuck also argues that “[r]egardless of whether [Kaitschuck] passed the
Exam, she would not have been a better employee in light of her years of experience
and positive work performance.” (Ans. DSJ 6). Kaitschuck indicates that she
believes that “the Exam was not critical to [her] job duties.” (Ans. DSJ 3).
However, the court is not here to evaluate the wisdom or efficiency of an employer’s
job requirements. The Seventh Circuit has made clear that in ADA cases, the court
does not “sit as a kind of super-personnel department weighing the prudence of
employment decisions made by firms charged with employment discrimination.”
Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 338-39 (7th Cir.
2012)(internal quotations omitted)(quoting O’Regan v. Arbitration Forums, Inc., 246
F.3d 975, 984 (7th Cir. 2001)). Kaitschuck also believes that she should have been
given more time to take the Exam. However, as indicated above, Kaitschuck never
requested an extension and in fact indicated that she would not or should not take the
Exam. The undisputed facts show that Kaitschuck refused to take the Exam and that
she was not capable of performing the essential functions of her job with or without
reasonable accommodations for a perceived or actual disability. Thus, Kaitschuck
has not shown that she is a qualified individual under the ADA.
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2. ADA Discrimination Claim
Defendants argue that even if Kaitschuck’s ADA claims are not foreclosed
since she is not a qualified individual, Kaitschuck cannot defeat Defendants’ motion
as to the ADA discrimination claim under the direct and indirect methods of proof.
A plaintiff who is bringing an ADA discrimination claim who is seeking to defeat a
defendant’s motion for summary judgment can proceed under the direct or indirect
method of proof. Cloe v. City of Indianapolis, 712 F.3d 1171, 1181-82 (7th Cir.
2013). Kaitschuck indicates that she can proceed under the direct and indirect
methods of proof.
a. Direct Method of Proof
A plaintiff proceeding under the direct method of proof can point to direct
evidence or “circumstantial evidence that allows a jury to infer intentional
discrimination. . . . .” Dickerson v. Board of Trustees of Community College Dist.
No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Kaitschuck has not pointed to sufficient
direct or circumstantial evidence to show discrimination based upon her perceived or
actual disability. As explained above, the undisputed facts show that DDL
determined that Kaitschuck needed to obtain Certification by January 2012 to stay
employed at DDL and that DDL acted in a consistent fashion during the two-year
period and properly terminated the employment of Kaitschuck after giving sufficient
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time and a warning. Thus, Kaitschuck cannot proceed under the direct method of
proof.
b. Indirect Method of Proof
A plaintiff proceeding under the indirect method of proof must first establish a
prima facie case by showing: (1) that she “is disabled under the ADA,” (2) that she
“was meeting h[er] employer’s legitimate employment expectations,” (3) that she
“suffered an adverse employment action,” and (4) that “similarly situated employees
without a disability were treated more favorably.” Lloyd v. Swifty Transp., Inc., 552
F.3d 594, 601 (7th Cir. 2009). If the plaintiff meets her burden to establish a prima
facie case, “the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.” Id. If the defendant
provides such a reason, “[t]he plaintiff must then prove by a preponderance of the
evidence that the defendant’s reasons are pretextual.” Id.
As explained above, DDL reasonably required Kaitschuck to obtain the
Certification. Also, as explained above, Kaitschuck refused to even take the Exam at
least in part because she did not believe it was fair for her to take the Exam.
Kaitschuck has not shown she was meeting her employer’s legitimate expectations.
As to similarly-situated individuals outside the protected class who were treated
more favorably, Kaitschuck points to evidence showing that DDL exempted from the
Certification Requirement certain employees such as those in Store Manager
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positions. (Ans. DSJ 3). However, DDL has pointed to ample evidence showing
that a Store Manager’s responsibilities is significantly different from that of a
Pharmacy Technician. (R PSF Par. 53); (DSF Par. 38-45). Kaitschuck has not
shown that she is comparable to Store Managers at DDL. Likewise Kaitschuck has
not shown that she was comparable to other employees exempted from Certification
such as Medicare Billers, Registered Nurses, or students who worked for DDL.
(DSF Par. 8-9, 37-45). Kaitschuck also contends that two Pharmacy Technicians
took the Exam in December 2011, and failed the Exam and were allowed to retake
the Exam after the deadline. (Ans. DSJ 2-3); (PSAF Par. 60). However, such
employees were not similarly-situated with Kaitschuck who admittedly never took
the Exam, indicated she was not intending to take the Exam, and never asked for
additional time to take the Exam. Kaitschuck also contends that it was unfair that
other employees were given more time to take the Exam. However, even if that was
true, the undisputed evidence shows that Kaitschuck indicated she was not going to
take the exam and never requested any extension of the deadline. Had Kaitschuck
taken the Exam and failed the Exam and was not allowed to retake the Exam after the
deadline, she would have been in such a position to make such an argument as to
similarly-situated employees. Also, although Kaitschuck contends that during her
nineteen months when she was not on medical leave and could have prepared for the
Exam, she did not have enough time to do so, it is undisputed that the average time to
complete the course work on the free Course offered to her was only five to eight
hours. (R DSF Par. 23); (PSAF Par. 74). Kaitschuck has thus failed to point to a
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similarly-situated employee outside the protected class who was treated more
favorably than her. Therefore, Kaitschuck has failed to establish a prima facie case.
c. Pretext
Defendants argue that even if Kaitschuck was able to establish a prima facie
case, Kaitschuck has failed to show that Defendants’ reason for termination of
Kaitschuck’s employment was a pretext. To meet the pretext requirement, the
plaintiff must establish that the employer’s reason was “a dishonest explanation, a lie
rather than an oddity or an error.” Bodenstab v. County of Cook, 569 F.3d 651, 657
(7th Cir. 2009)(internal quotations omitted)(quoting Faas v. Sears, Roebuck & Co.,
532 F.3d 633, 642 (7th Cir. 2008))(stating that “[s]howing pretext requires [p]roof
that the defendant’s explanation is unworthy of credence”)(internal quotations
omitted)(quoting Filar v. Bd. of Educ. of City of Chicago., 526 F.3d 1054, 1063 (7th
Cir. 2008)). As explained above, the undisputed evidence shows a consistent
progression of events beginning with the initiation of the Program, the subsequent
Warning Letter, and ultimately the termination when Kaitschuck failed to comply
with the Certification requirement. Such series of events in no way suggests an
ulterior motive on the part of DDL or that DDL manufactured an excuse to cover up
unlawful discrimination. Kaitschuck also argues that she was the only employee
who was terminated because of a failure to obtain the Certification by the deadline.
(PSF Par. 55). However, as explained above, the two employees who were given
extensions were given extensions after taking the Exam prior to the deadline and
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failing and indicating a willingness to obtain the Certification. Kaitschuck argues
that DDL was “strictly applying the” Program requirements “only to” Kaitschuck.
(Ans. DSJ 6). However, such a statement is demonstrably incorrect. The undisputed
facts show that there was only one other Pharmacy Technician, Jennifer Urban
(Urban), who refused to take the Exam or obtain the Certification as Kaitschuck did.
(DSF Par. 29). The undisputed facts show that consistent with the treatment of
Kaitschuck, DDL was prepared to terminate Urban’s employment, but Urban instead
chose to resign. (R DSF Par. 29). Kaitschuck also contends that on one occasion
Haran said to her “you’re having surgery again?” (PSAF Par. 83). However, such
an isolated and, on its face, an innocent comment, even if made and perceived by
Kaitschuck otherwise, is not sufficient to indicate that Kaitschuck’s termination was
part of some plan to fire Kaitschuck based on an actual or perceived disability. Thus,
Kaitschuck has failed to show that the reason given for her termination was a pretext.
Therefore, Defendants’ motion for summary judgment on the ADA discrimination
claim is granted.
3. ADA Failure-To-Accommodate Claim
Defendants move for summary judgment on the ADA failure-to-accommodate
claim. For an ADA failure-to-accommodate claim a plaintiff must establish: (1) that
she “is a qualified individual with a disability,” (2) that “the employer was aware of
h[er] disability,” and (3) that “the employer failed to reasonably accommodate the
disability.” James, 707 F.3d at 782-83 (stating that “the standard rule is that a
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plaintiff must normally request an accommodation before liability under the ADA
attaches”)(internal quotations omitted)(quoting Jovanovic v. Emerson Elec. Co., 201
F.3d 894, 899 (7th Cir. 2000)); Cloe v. City of Indianapolis, 712 F.3d 1171, 1176
(7th Cir. 2013)(stating that “[o]nce the employer has been put on notice, the
employer must take reasonable steps to accommodate the employee’s disability”).
As explained above, the undisputed facts show that Kaitschuck was not a
qualified individual under the ADA. In addition, the undisputed facts show that
Kaitschuck failed to request an extension to obtain the Certification. Thus,
Kaitschuck never requested such an accommodation. Kaitschuck also contends that
DDL failed to engage in the interactive process as required under the ADA. Spurling
v. C & M Fine Pack, Inc., 739 F.3d 1055, 1061 (7th Cir. 2014)(stating that “[a]fter an
employee has disclosed that she has a disability, the ADA requires an employer to
‘engage with the employee in an interactive process to determine the appropriate
accommodation under the circumstances’”)(quoting E.E.O.C. v. Sears, Roebuck &
Co., 417 F.3d 789, 805 (7th Cir. 2005)). However, the undisputed facts show that
DDL repeatedly inquired from Kaitschuck as to whether she even intended to take
the Exam, and she indicated in the negative for reasons such as that she believed she
should have been “grandfathered in” and she did not want to study on her personal
time. (K Dep. 105). Kaitschuck never requested an extension or gave any indication
that if an extension was given she would have taken the Exam and DDL had no
reason to believe that an extension was desired by Kaitschuck. Kaitschuck contends
that in the Fall of 2011, when she asked Haran for leave, he did not inquire as to
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whether she required any accommodations. (P Decl. Par. 36). However, prior to
Kaitschuck’s request for leave, she had already indicated her unwillingness to take
the Exam, and DDL had every reason at that juncture to believe that Kaitschuck
simply did not intend to take the Exam and therefore there was no reason to inquire
as to any possible accommodation relating to Kaitschuck obtaining the Certification.
Kaitschuck has not pointed to sufficient evidence to show that any extension
would have been a reasonable accommodation in view of the undisputed facts
showing that Kaitschuck had ample time to obtain the Certification by the deadline,
she refused to take the Exam, and she had no intention to take the Exam. Although
Kaitschuck argues that other employees had more time to take the Exam, she has not
shown that the nineteen months she admittedly had available were insufficient to take
the Exam. Kaitschuck has thus failed to point to sufficient evidence to show that an
extension of the Certification requirement was a reasonable accommodation in this
case. Therefore, Defendants’ motion for summary judgment on the ADA failure-toaccommodate claim is granted.
B. Retaliation Claims
Defendants move for summary judgment on the ADA and FMLA retaliation
claims. A plaintiff who is bringing an ADA retaliation claim and who is seeking to
defeat a defendant’s motion for summary judgment can proceed under the direct or
indirect method of proof. Dickerson, 657 F.3d at 601-02. Kaitschuck indicates that
she is proceeding under both the direct and indirect methods of proof. A FMLA
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retaliation claim is generally addressed under the same framework as for an ADA
retaliation claim. Burnett v. LFW Inc., 472 F.3d 471, 481 n.5 (7th Cir. 2006)(stating
that a court should “assess a claim of FMLA retaliation in the same manner that [the
court] evaluate[s] a claim of retaliation under other employment statutes, such as the
ADA or Title VII”)(internal quotations omitted)(quoting Buie v. Quad/Graphics,
Inc., 366 F.3d 496, 503 (7th Cir. 2004)); Scruggs v. Carrier Corp., 688 F.3d 821,
826 (7th Cir. 2012)(stating that “[a]n employee who alleges that her employer
retaliated against her for exercising her rights under the FMLA can proceed under the
direct or indirect methods of proof familiar from employment discrimination
litigation”)(internal quotation omitted)(quoting Smith v. Hope Sch., 560 F.3d 694,
702 (7th Cir. 2009)). Kaitschuck cannot proceed under the direct method of proof as
she has not pointed to sufficient direct or circumstantial evidence to create a
convincing mosaic of retaliation. Nor has Kaitschuck pointed to sufficient evidence
of a causal connection between any protected activity and an adverse action taken
against her. See Cloe, 712 F.3d at 1180 (explaining that under the direct method of
proof, a plaintiff must “show that (1) she engaged in a statutorily protected activity;
(2) she suffered an adverse action; and (3) there is a causal connection between the
two”); Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012)(stating the same
requirements for a FMLA retaliation claim); see also Ridings v. Riverside Medical
Center, 537 F.3d 755, 771 (7th Cir. 2008)(stating in regard to FMLA retaliation
claim that “[a] plaintiff can prevail under the direct method by showing an admission
of discrimination or by “constructing a convincing mosaic of circumstantial evidence
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that allows a jury to infer intentional discrimination by the decisionmaker”)(internal
quotations omitted)(quoting Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir.
2006)).
A plaintiff proceeding under the indirect method of proof for an ADA
retaliation claim must first establish a prima facie case by showing: (1) that she
“engaged in protected activity” (2) that she “was performing h[er] job satisfactorily,”
and (3) that she “was singled out for an adverse employment action that similarly
situated employees who did not engage in protected activity did not suffer.”
Dickerson, 657 F.3d at 601-02. If a plaintiff establishes a prima facie case, “the
burden then shifts to the defendant to present a non-invidious reason for the adverse
employment action.” Id. If the defendant offers such a reason, “the plaintiff must
then demonstrate that the defendant’s proffered reason was pretextual.” Id. For a
FMLA retaliation claim prima facie case, the plaintiff must “produce evidence that
she was treated differently from similarly situated employees who did not request
FMLA leave, even though she was performing her job satisfactorily.” Smith, 560
F.3d at 702.
As explained above, the undisputed facts show that at the time in question,
Kaitschuck was not performing her job in a satisfactory manner. Nor has Kaitschuck
shown that she was singled out due to her protected activity under the ADA or
FMLA. The undisputed facts show that the only other employee who refused to take
the Exam was going to be terminated but decided to resign rather than face
termination. Kaitschuck has failed to show that DLL’s reason was a pretext for
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retaliation. The undisputed facts show that DDL repeatedly authorized medical leave
for Kaitschuck. The undisputed facts also show that the Program was put in place on
January 1, 2010 and the deadline for obtaining Certification was set at that time.
Thus, the deadline that formed the basis for the termination of Kaitschuck’s
employment was in place long before Kaitschuck was granted medical leave on two
different occasions in 2011. In terminating Kaitschuck’s employment, DDL acted in
a manner that was entirely consistent with its position pursuant to the institution of
the Program and subsequent Warning Letter. It is also undisputed that prior to the
time that Kaitschuck sought her second medical leave in the Fall of 2011 and was
granted such leave, DDL was anticipating the potential termination of Kaitschuck’s
and Urban’s employment in view of their refusal to take the Exam and obtain the
required Certification. For example, on October 29, 2011, it is undisputed that Enz
wrote an email stating: “Kathy Kaitschuck and Jenny Urban are not testing. Both
stores already have arrangements made for when they are done.” (R DSF Par. 20).
Kaitschuck has failed to show that the actions of DDL were based on her taking
medical leave or any protected activity. To the contrary, the undisputed facts show
that DDL granted Kaitschuck’s requests for leaves, and DDL was acting pursuant to
established business practices in anticipation of the departures of Kaitschuck and
Urban, based on their own refusal to meet DDL’s requirements. Therefore,
Defendants’ motion for summary judgment on the ADA and FMLA retaliation
claims is granted.
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C. Remaining State Law Claims
Once the federal claims in an action no longer remain, a federal court has
discretion to decline to exercise supplemental jurisdiction over any remaining state
law claims. See Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-52 (7th Cir.
1994)(stating that “the general rule is that, when all federal-law claims are dismissed
before trial, the pendent claims should be left to the state courts”). The Seventh
Circuit has indicated that there is no “‘presumption’ in favor of relinquishing
supplemental jurisdiction. . . .” Williams Electronics Games, Inc. v. Garrity, 479
F.3d 904, 906-07 (7th Cir. 2007). The Seventh Circuit has stated that, “in exercising
its discretion, the court should consider a number of factors, including “the nature of
the state law claims at issue, their ease of resolution, and the actual, and avoidable,
expenditure of judicial resources. . . .” Timm v. Mead Corp., 32 F.3d 273, 277 (7th
Cir. 1994). The court has considered all of the pertinent factors and, as a matter of
discretion, the court declines to exercise supplemental jurisdiction over the remaining
state law claims. The instant action is still in the pre-trial stage and there is not
sufficient justification to proceed solely on the remaining state law claims. The
remaining state law claims are therefore dismissed without prejudice.
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CONCLUSION
Based on the foregoing analysis, Kaitschuck’s motion for summary judgment
is denied, Defendants’ motion for summary judgment is granted in part, and denied
in part, and the remaining state law claims are dismissed without prejudice.
___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: April 15, 2014
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