Green v. Teddie Kossof Salon and Day Spa

Filing 154

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 7/26/2017. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JENNIFER GREEN,
Plaintiff,
v.
TEDDIE KOSSOF SALON & DAY SPA,
Defendant.

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Case No. 13-cv-6709
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff Jennifer Green’s motion for partial summary judgment
[144] and Defendant Teddie Kossof Salon & Day Spa’s motion for summary judgment [145].
For the reasons set forth below, both motions [144; 145] are denied. This case is set for further
status on August 22, 2016 at 9:30 a.m. to set a schedule for pre-trial filings and to discuss the
possibility of settlement.
I.

Background
The Court takes the relevant facts from the parties’ Local Rule 56.1 statements [144-2;

147; 148; 151-1] and the summary judgment opinion by Judge Gottschall, who previously
presided over this case [114].

Defendant Teddie Kossof Salon & Day Spa is located in

Northfield, Illinois, and provides facials, massages, and body treatments for customers. In 2012
and 2013, Defendant employed five massage therapists, including Plaintiff Jennifer Green.
Message therapists are paid a commission plus tips for their services and are scheduled to work
in advance. Defendant requires its massage therapists to be physically at work during their
scheduled shifts. [148, ¶¶ 8–10; 151, ¶¶ 8–10.] Defendant did not have a written sick leave
policy. The customary practice was that an employee would call her manager if she needed a
day off due to illness, and then staff would be reallocated if available.

Plaintiff suffers from lumbar radiculopathy—a chronic condition causing episodic back
pain. When this condition flares, Plaintiff has difficulty sleeping as well as walking, standing, or
sitting for extended periods of time.

These flare ups are unpredictable.

And when she

experienced the symptoms related to this condition, Plaintiff sometimes could not perform her
duties as a massage therapist. [148, ¶ 22; 151, ¶ 22 (stating that she would not work when the
pain was four or more on a scale of ten).]1 When Plaintiff showed up for work, however,
Defendant concedes that Plaintiff provided the expected level of service to its employees. [148,
¶ 18.] She was never disciplined for performance-related issues and there was never any
problem with her actual performance as a massage therapist when she came to work. Id.
Nevertheless, Defendant contends that Plaintiff had a “habit of calling in sick to work
shortly before her scheduled appointments were to begin.” [148, ¶ 24.] The only support
Defendant cites for that proposition is an affidavit from Plaintiff’s direct supervisor, Dorota
Jedrzejek, which contains the identical statement without any further elaboration. [148-2, ¶ 16.]
Not surprisingly, Plaintiff disputes that characterization. [151-1, ¶ 24.] She testified at her
deposition that she did not think that she was “sick much at all.” [148-3, at 20 (77:23).] When
she had to cancel appointments, it was often when she was “overbooked with sessions and [her]
back would [become] aggravated,” such as when she would have six sessions in a day and would
be unable to make it past the fifth because of back pain. Id. at 77:24–78:3. When Plaintiff called
in sick, another massage therapist would need to substitute in for her, and if no one was
available, the appointment would be cancelled.
Plaintiff was admitted to the emergency room on January 29, 2013, for complications
related to an ovarian cyst. Plaintiff was prescribed medication for symptoms related to the cyst
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The parties do not direct the Court to any evidence in the record regarding how often Plaintiff’s pain met
or exceeded a four on her subjective pain scale.

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and was unable to predict the onset of those symptoms for the next few weeks. On February 18,
2013, Plaintiff was scheduled to work but informed Defendant that the cyst was causing her pain
and exacerbating her lumbar radiculopathy. Plaintiff requested the day off, but Alan Kossof,
who operates the spa, informed her that she either needed to come into work or apply for leave
under the Family Medical Leave Act. Plaintiff asked if she could skip her morning appointment
and perform her afternoon sessions, but Plaintiff ultimately performed all three of her scheduled
massages that day. The next day, Plaintiff called in sick. On February 20, Kossof terminated
Plaintiff. Plaintiff alleges that Kossof told her that he was terminating her because she had “too
many medical problems.” [8, at 18.]
Plaintiff filed suit against Defendant, asserting claims for gender discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”), and for
disability discrimination and failure to accommodate under the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. (“ADA”). Plaintiff was originally litigating this case pro se, and filed
two motions for summary judgment in 2014 [40; 51], both of which were denied as premature
[62]. In 2015, both parties moved for summary judgment [80; 86], with each side contending it
was entitled to summary judgment on Plaintiff’s claims [82; 98].
On September 24, 2015, Judge Gottschall granted Defendant’s summary judgment
motion with respect to the Title VII claim, but otherwise denied the remainder of Defendant’s
motion and denied Plaintiff’s motion in its entirety. [114.] As part of that decision, Judge
Gottschall considered whether there was sufficient evidence in the record to show a triable issue
of fact regarding each element of Plaintiff’s ADA claim. Of relevance here, Defendant argued
that Plaintiff “cannot prove she was qualified for the position of massage therapist because she
was absent from work too often.” Id. at 8. Judge Gottschall concluded:

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Here, however, there is insufficient evidence in the summary judgment record for
the court to conclude that Green’s absences prevented her from performing the
essential functions of her job. The evidence the Spa submits to prove Green’s
absenteeism consists of an affidavit from Green’s supervisor, Jedrzejek.
Jedrzejek avers that Green “developed a habit of calling in sick to work shortly
before her scheduled appointments were to begin.” Jedrzejek Aff. ¶ 16. Green, a
pro se plaintiff, denies that she developed such a habit, but she did not depose
Jedrzejek to test her averments. Nonetheless, Jedrzejek’s affidavit provides no
insight into how many times Green actually cancelled her appointments “shortly
before” they were scheduled to begin. Id. The court cannot find Green’s claim
deficient as a matter of law solely based on Jedrzejek’s conclusory and
unsubstantiated averment.
Id. at 8–9. Judge Gottschall further noted that Plaintiff had submitted employment records
showing how often she and her co-workers were absent from work, but it was unclear if these
records were accurate or admissible business records. In any event, she concluded that these
records “raise a fact issue as to whether [Plaintiff’s] absences prevented her from performing her
job duties.” Id. at 9. She then cited the Seventh Circuit’s decision in Haschmann v. Time
Warner Entertainment Co., 151 F.3d 591(7th Cir. 1998), for the point that “[i]t is not the absence
itself but rather the excessive frequency of an employee’s absences in relation to that employee’s
job responsibilities that may lead to a finding that an employee is unable to perform the duties of
his job.”

[114, at 10.]

She ended this section of her opinion with the statement that

“[c]onsideration of the degree of excessiveness is a factual issue well suited to a jury
determination.” [114, at 10 (quoting Haschmann, 151 F.3d at 602).]
In January 2016, Plaintiff moved for reconsideration of Judge Gottschall’s summary
judgment decision [129], which was denied [133].

Judge Gottschall recruited counsel for

Plaintiff [116; 120; 128] and set the parties on a path for trial [138]. Shortly thereafter, this case
was reassigned from Judge Gottschall to this Court. [139.] At the second status hearing
following this reassignment, the parties proposed filing new summary judgment briefs. [143.]
Without fully appreciating the extent of the water under the bridge in the litigation to date, the

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Court accepted the parties’ proposal and struck the trial date. Both parties then moved for
summary judgment [144; 145].
II.

Legal Standard
Summary judgment is proper where “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). To establish that a material fact is undisputed, the movant “must support the assertion by
* * * citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations * * *, admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). In determining whether
summary judgment is appropriate, the court should construe all facts and reasonable inferences
in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d
540, 543 (7th Cir. 2014). Rule 56(a) “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against any party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party would
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Put
another way, the moving party may meet its burden by pointing out to the court that “there is an
absence of evidence to support the nonmoving party’s case.” Id. at 325.
To avoid summary judgment, the opposing party then must go beyond the pleadings and
“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). For this
reason, the Seventh Circuit has called summary judgment 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 fact to
accept its version of events.” See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.
2003) (citation omitted). The “mere existence of a scintilla of evidence in support of the
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[nonmovant’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
III.

Analysis
“The ADA prohibits employers from taking adverse employment actions against their

employees because of a disability.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 606 (7th Cir.
2012); see 42 U.S.C. § 12112(a). An employee may state a claim for discrimination under the
ADA by advancing either (1) a failure to accommodate theory—that is, the employer failed to
provide a reasonable accommodation for the employee’s disability—or (2) a “disparate
treatment” theory—that is, the employer treated the employee differently because of her
disability. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997). To establish
an ADA violation, the employee must prove “1) that she is disabled; 2) that she is otherwise
qualified to perform the essential functions of the job with or without reasonable
accommodation; and 3) that the employer took an adverse job action against her because of her
disability or failed to make a reasonable accommodation.” Winsley v. Cook Cnty., 563 F.3d 598,
603 (7th Cir. 2009) (citation omitted). “No matter the type of discrimination alleged—either
disparate treatment or failure to provide a reasonable accommodation—a plaintiff must establish
first that [s]he was ‘a qualified individual with a disability.’” Sieberns, 125 F.3d at 1022.
Under the ADA, a “qualified individual with a disability” is “an individual with a
disability 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). The
employee must “pass a two-step test” to be a “qualified individual.” Weiler v. Household Fin.
Corp., 101 F.3d 519, 524 (7th Cir. 1996). “First, the individual must satisfy ‘the prerequisites
for the position, such as possessing the appropriate educational background, employment
experience, skills, licenses, etc.’” Id. (quoting 29 C.F.R. app. § 1630.2(m)). “Second, the
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individual must be able to ‘perform the essential functions of the position held or desired, with or
without reasonable accommodation.’” Id. (quoting 29 C.F.R. app. § 1630.2(m)).
A.

Plaintiff’s Partial Summary Judgment Motion

Plaintiff has moved for what she characterizes as “partial summary judgment” “on the
issue of whether she is a ‘qualified individual.’” [144.] Her memorandum states that she seeks
“summary judgment on the grounds that (A) throughout her employment, [Defendant] never
took issue with her job performance or her attendance; (B) [Defendant] admits that it did not
have a written attendance policy; and (C) [Defendant’s] records – the sole source of information
documenting [absences – are] untrustworthy to be admissible under [Federal Rule of Evidence]
803(6)(E).” [144-3, at 1–7.] This is not a proper summary judgment motion.
Plaintiff essentially seeks a directed finding in advance of the jury trial that she has
satisfied the “qualified individual” element of her ADA claim. Even assuming she was entitled
to such a finding, that would not entitle her to “judgment as a matter of law” because she would
still need to prove all of the other elements of her two ADA claims to prevail. Fed. R. Civ. P.
56(a). That fact that Judge Gottschall concluded that factual issues precluded granting summary
judgment for Defendant on whether Plaintiff was a qualified individual in no way entitles
Plaintiff to summary judgment on the same issue when she bears the burden of proof.
Regardless, Plaintiff’s first two “grounds” misunderstand Defendant’s argument for why
she is not a qualified individual. Defendant contends that Plaintiff’s “erratic absences, lastminute cancellations, and unreliable attendance at work” means that she cannot perform the
essential functions of her job. [150, at 3]; accord Preddie v. Bartholomew Consol. Sch. Corp.,
799 F.3d 806, 814 (7th Cir. 2015); Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003);
Amadio v. Ford Motor Co., 238 F.3d 919, 927–28 (7th Cir. 2001); Jovanovic v. In-Sink-Erator

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Div. of Emerson Elec. Co., 201 F.3d 894, 899–900 (7th Cir. 2000); Waggoner v. Olin Corp., 169
F.3d 481, 483 (7th Cir. 1999). The fact that Plaintiff met her employer’s expectations when she
came to work does not foreclose a finding by the jury that she not qualified. “An employer is
generally permitted to treat regular attendance as an essential job requirement and need not
accommodate erratic or unreliable attendance.” Basden v. Prof’l Transp., Inc., 714 F.3d 1034,
1037 (7th Cir. 2013). Plaintiff does not cite any law showing that generally good performance at
work or the absence of a sick leave policy forecloses such a conclusion. Judge Gottschall
already concluded that this issue is one for the jury.

Plaintiff offers no reason that this

conclusion is wrong, and this Court will not disturb it.
Plaintiff’s third ground is a motion in limine in disguise. Plaintiff criticizes Defendant for
not yet having filed a certification under Federal Rule of Evidence 902(11) and contends that
these employee time records are untrustworthy. [144-3, at 5–7.] Of course, Plaintiff submitted
and relied on these records when opposing summary judgment in 2015, so it makes little sense
for her to now claim these records are unreliable. [See 114, at 9 (“Green, not the Spa, produced
employment records to show when Green and her coworkers were absent from work.”).]
Moreover, a 902(11) certification is only one way to satisfy the business records exception. If
Defendant wants to admit these records, it could use a records custodian or other qualified
witness pursuant to Federal Rule of Evidence 803(6)(D). In any event, no witnesses have been
disclosed and no trial date is set. Federal Rule of Evidence 902(11) requires only “reasonable
written notice” of a party’s intent to rely on such a certification, and Plaintiff does not offer any
reason to believe this deadline has passed. The parties are free to brief these employment
records’ admissibility when the time comes. But Plaintiff fails to show that this one evidentiary
issue entitles her to summary judgment on her ADA claim in light of Defendant’s opposing

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evidence, including Jedrzejek’s affidavit [148-2, ¶ 16]. Plaintiff’s partial summary judgment
motion [144] is denied.
B.

Defendant’s Summary Judgment Motion

Defendant’s motion seeks summary judgment on whether Plaintiff is a qualified
individual as well. [146, at 1.] This motion is almost entirely a rehash of the same arguments
rejected by Judge Gottschall.

Defendant contends that Plaintiff’s “regular or predictable

attendance” was an essential function of her job, she could not attend work when she had a “flare
up” of her lumbar radiculopathy symptoms, those flare ups occurred at unpredictable times, and
her appointments would need to be cancelled when was no substitute was available for her. Id.
at 3–5. According to Defendant, these “unplanned absences” were the reason for her termination
and was not a pretextual reason to terminate her. Id. at 5–6.
As before, Defendant’s argument is totally underdeveloped. Defendant still offers no
record evidence as to when or how frequently these “flare ups” occurred, when or how often they
resulted in Plaintiff missing work, specifically how much advance notice Defendant received of
Plaintiff’s absences, or when or how often Defendant had to cancel appointments because no
massage therapist could step in for Plaintiff. The record is bare on these subjects and Defendant,
as the movant, has failed to satisfy its initial burden under Rule 56.
To be sure, Ms. Jedrzejek avers that Plaintiff had a “habit” of calling in sick “shortly”
before appointments were to begin. [148, ¶ 24.] Judge Gottschall described this same assertion
as “conclusory and unsubstantiated” back in 2015 [114, at 9], and it did not become less
conclusory or more substantiated with age.

Likewise, Defendant vaguely states that

“[s]ometimes the other massage therapists could not cover for Plaintiff,” but offers no supporting
evidence. [146, at 4.] “Sometimes” is not undisputed record evidence that could sustain entry of

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summary judgment. As Defendant notes in responding to Plaintiff’s motion, “[w]hether the
erratic or unreliable absences disqualify an individual from a particular job is a fact-specific
inquiry.” [150, at 7.] The dearth of facts offered by Defendant precludes a finding that it is
entitled to judgment as a matter of law.
Furthermore, “[a]n individual with a disability falls within the definition of a ‘qualified
individual with a disability’ if she can perform the essential functions of the desired position with
reasonable accommodation.”

Jackson v. City of Chi., 414 F.3d 806, 812 (7th Cir. 2005)

(emphasis added); see also Dunderdale v. United Airlines, Inc., 807 F.3d 849, 854 (7th Cir.
2015) (“However, [plaintiff] could perform the essential functions of the ramp serviceman
position with a reasonable accommodation.”). The Seventh Circuit has expressly declined to
hold that “an individual with erratic attendance can never be a qualified individual with a
disability under the ADA.” Jovanovic, 201 F.3d at 900. As the Seventh Circuit explained,
We are not establishing a hard-and-fast rule that no absences from work need be
tolerated. We have indicated our willingness to look to the reasonableness of an
accommodation of a requested medical leave. In some cases, even working parttime is an accommodation which can and often should be made. In some jobs—
though almost certainly not in production jobs such as [plaintiffs]—working at
home for a time might be an option. However, in evaluating any requested
accommodation, the issue will be whether the hardship imposed on the employer
by it is ‘undue.’”
Waggoner, 169 F.3d at 485.
None of Defendant’s “evidence” shows that Plaintiff could not have performed the
essential functions of her job even if she had been provided a reasonable accommodation.
Plaintiff testified that her flare ups mainly occurred when she was overbooked and she would
need to cancel her last session of the day. [148-3, at 20 (77:23–78:4.).] She requested a
modified work schedule as an accommodation. See [114, at 4]; 42 U.S.C. § 12111 (defining
“reasonable accommodation” to include “modified work schedules”).

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Whether a modified

schedule would have allowed Plaintiff to meet the attendance needs of Defendant and still
perform the essential functions of her job is a factual question that cannot be resolved on this
record. Accordingly, there is and remains a genuine dispute of material fact concerning whether
Plaintiff could perform her essential job duties at the spa with or without a reasonable
accommodation. Defendant’s motion for summary judgment [145] is denied.
IV.

Conclusion
For the foregoing reasons, the Court denies Plaintiff’s motion to partial summary

judgment [144] and Defendant’s motion for summary judgment [145]. This case is set for
further status on August 22, 2016 at 9:30 a.m. to set a schedule for pre-trial filings and to discuss
the possibility of settlement.

Dated: July 26, 2017

_________________________________
Robert M. Dow, Jr.
United States District Judge

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