Wilson v. Integrated Medical Systems, Inc. et al

Filing 82

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/12/16. Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VIVIAN WILSON,
Plaintiff,
v.
INTEGRATED MEDICAL SYSTEMS,
INC., an Illinois corporation,
INTEGRATED MEDICAL SYSTEMS
INTERNATIONAL, INC., a Delaware
corporation, and UNIVERSITY OF
ILLINOIS HOSPITAL AND HEALTH
SCIENCES SYSTEM, an Illinois
municipal corporation,
Defendants.

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14 CV 5726
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Vivian Wilson has sued Defendants Integrated Medical Systems,
Inc., 1 Integrated Medical Systems International, Inc. (“IMS”), and the University of
Illinois Hospital and Health Sciences System, 2 alleging that Defendants violated
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the
Rehabilitation Act, 29 U.S.C. § 794(a). Specifically, Wilson alleges that Defendants
discriminated and retaliated against her after she suffered injuries that required

Defendant Integrated Medical Systems, Inc. no longer exists. See Pl.’s 56.1
Statement at 12, ECF No. 76.
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The Court acknowledges that the University argues it should have been sued
as the Board of Trustees of the University of Illinois, University’s Mem. Mot.
Summ. J. at 1, ECF No. 70, and treats this case as if the University had been
properly named. See 110 Ill. Comp. Stat. 305/1, 330/1, 330/2.
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her to take a leave of absence from work. Each Defendant has moved for summary
judgment. For the reasons stated herein, the Court grants both motions.
Factual Background
Plaintiff Vivian Wilson was hired by Defendant IMS in May 2012. Pl.’s Resp.
IMS’s SOF ¶¶ 1, 16, ECF No. 76. IMS employs individuals who perform sterile
processing services on operating room equipment, typically in hospitals. Id. ¶ 6.
Although these employees may work in hospitals in various locations around the
country, they are paid by IMS, and IMS controls all benefits and scheduling. Id. ¶¶
8, 14. In the course of her employment with IMS, Wilson was placed at the
University of Illinois Medical Center, located in Chicago, Illinois. Id. ¶ 1.
On September 2, 2012, Wilson was injured outside of work. Id. ¶ 22. She
sustained injuries to both hands, as well as her right thigh, and was hospitalized
until September 4. Id. ¶¶ 23–24. Wilson was away from work throughout the month
of September, but she, her son, and her doctor were in contact with her supervisor
at IMS. Id. ¶¶ 26–32.
On September 26, 2012, Wilson’s doctor informed IMS that Wilson would
undergo surgery on her left hand on September 27. He also noted that Wilson would
be subject to the following restrictions after the procedure: “no use of left hand for
approx. 8 weeks. After 8 weeks, 5 lb limit x 2 weeks.” Id. ¶ 32.
IMS terminated Wilson’s employment effective October 1, 2012, and Wilson
received notice on October 3. Id. ¶¶ 37–38. Despite the termination, Wilson’s doctor

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continued to send updates to IMS about her condition and lifted all work
restrictions on February 20, 2013. Id. ¶¶ 40, 44.
Wilson filed a charge of discrimination with the Equal Employment
Opportunity Commission against Integrated Medical Systems, Inc. on November
16, 2012. Id. ¶ 45. This charge (“first charge”) alleged disability discrimination and
stated the following:
I began my employment with Respondent on or around May 7, 2012.
My most recent position was Sterile Processing Supervisor.
Respondent was aware of my disability. I was denied reasonable
accommodation. Subsequently, I was discharged. I believe that I have
been discriminated against because of my disability, in violation of the
Americans with Disabilities Act of 1990, as amended.
IMS’s SOF, Ex. 27, ECF No. 68. The first charge listed the last date of
discrimination as October 3, 2012—the day Wilson received notice that she had
been terminated.
The EEOC issued Wilson a notice of right to sue on May 20, 2013. Pl.’s Resp.
IMS’s SOF ¶ 48. Subsequently, she filed a second charge of discrimination with the
EEOC on July 29, 2013. Id. ¶ 49. This charge (“second charge”) added the
University of Illinois Hospital and Health Sciences System as an employer. Id. The
second charge stated the following:
I was placed by Respondent Integrated with Respondent University of
Illinois Hospital on or around May 7, 2012, for a contract position as a
Sterile Processing Supervisor. From September 3, 2012, through and
including October 3, 2012, I, and people acting on my behalf, requested
a reasonable accommodation of a medical leave to recover from surgery
and severe injuries I had suffered. I was fired on October 3, 2012. I
believe I have been discriminated against based on my disability
and/or the perception of my disability and/or the record of my disability
and/or retaliated against for having requested a reasonable

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accommodation and/or for otherwise having asserted my rights under
the Americans with Disabilities Act.
IMS’s SOF, Ex. 30. Unlike the first charge, in the second charge Wilson checked the
“retaliation” box on the EEOC form. Id. The charge also listed the last date of
discrimination as October 3, 2012. Pl.’s Resp. IMS’s SOF ¶ 51. The EEOC issued
Wilson a second notice of right to sue based on the second charge on April 25, 2014.
Id. ¶ 52.
Wilson initiated this lawsuit by filing a complaint on July 25, 2014. Id. ¶ 53
The complaint alleges discrimination and retaliation under both the ADA (Counts I
and II) and the Rehabilitation Act (Counts III and IV). Am. Compl. ¶¶ 41–56, ECF
No. 22.
Legal Standard
The Court shall grant summary judgment “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). The Court gives “the non-moving party the
benefit of conflicts in the evidence and reasonable inferences that could be drawn
from it.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th
Cir. 2013). In order to survive summary judgment, the nonmoving party must “do
more than simply show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and “must establish some genuine issue for trial such that a reasonable jury could
return a verdict in her favor,” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73
(7th Cir. 2012).

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Analysis
I.

IMS
A.

ADA Claims

The viability of Wilson’s ADA claims against IMS depends on whether she
filed suit in time after the EEOC had issued the right to sue notice. Under the ADA,
a plaintiff must file a timely charge with the EEOC and receive a notice of right to
sue before she can file suit against an employer. See 42 U.S.C. § 12117(a)
(incorporating 42 U.S.C. § 2000e–5, which outlines Title VII’s procedural
requirements); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n.3 (7th Cir.
1993). The plaintiff must file suit within 90 days from the date the EEOC provides
the right-to-sue notice. See Houston v. Sidley & Austin, 185 F.3d 837, 838–39 (7th
Cir. 1999).
Here, IMS argues that it is entitled to summary judgment on Wilson’s ADA
discrimination and retaliation claims (Counts I and II) because she filed suit more
than 90 days after the EEOC issued the first right-to-sue notice. IMS’s Mem. Supp.
at 5. Wilson, on the other hand, contends that the second EEOC charge contained
additional information, making the second right-to-sue notice the proper starting
point for the 90-day period. See Pl.’s Mem. Opp. at 8, ECF No. 77.
“To allow a plaintiff to re-allege an earlier EEOC charge in a subsequent
EEOC charge would render the 90-day time limit for filing lawsuits ‘meaningless,’
because it would allow the plaintiff to ‘evade [the filing requirement] simply by
seeking additional Notices of Right to Sue whenever [he] pleased.’” Vitello v. Liturgy
Training Publ’ns, 932 F. Supp. 1093, 1098 (N.D. Ill. 1996) (alterations in original).
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Thus, if the 90-day period has expired for a plaintiff’s first EEOC charge, she must
demonstrate that her second EEOC charge is not a “mere re-allegation of the first
EEOC charge, i.e., not reasonably related or similar enough to be within the scope
of the first charge.” Blalock v. Bethesda Lutheran Homes & Servs., Inc., 01 C 9188,
2002 WL 31833693, at *3 (N.D. Ill. Dec. 16, 2002); see also Mason v. United Food &
Commercial Workers Int’l Unions, 04 C 7148, 2006 WL 644028, at *4 (N.D. Ill. Mar.
7, 2006) (a second EEOC charge is time-barred if it is a “mere recantation of [the]
first charge”).
In her first EEOC charge, Wilson alleges that IMS was aware of her
disability, failed to reasonably accommodate her, and discharged her, in violation of
the ADA. IMS’s SOF, Ex. 27. The first charge indicates that the last date of the
discrimination was October 3, 2012. Id. In the second EEOC charge, Wilson alleges
that she was denied the reasonable accommodation of a medical leave for injuries
she suffered and was discharged, in violation of the ADA. IMS’s SOF, Ex. 30. In this
charge, Wilson named the University as an employer and checked the “retaliation
box.” Id. The second charge indicates the same date, October 3, 2012, as the last
date of the discrimination. Id. Neither charge alleges any continuing action by
either IMS or the University.
The Court agrees with IMS that the allegations in Wilson’s second charge are
“like or reasonably related” to the allegations in her first charge because they both
were based on the same facts. See Johnson v. Chi. Bd. of Educ., No. 05 C 4294, 2007
WL 317030, at *5 (N.D. Ill. Jan. 31, 2007) (allegations in a later EEOC charge were

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“like or reasonably related to” those in an earlier, untimely charge because they
were based on the same acts). Although in the second charge she took the additional
step of checking the box for retaliation, the first charge contained all the necessary
factual underpinnings of her retaliation claim—namely, she asked for an
accommodation and was then fired. See id.; see also Jenkins v. Blue Cross Mut.
Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (holding that the substance of the
plaintiff’s EEOC charge trumped the fact that she had not checked the appropriate
box).
In her response, Wilson argues that she should be afforded some flexibility
because she was pursing these charges on a pro se basis. But the law is well-settled
that even pro se claimants are strictly bound by the statutory deadlines. See
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151–52 (1984) (refusing to toll
the 90-day limitation for a pro se plaintiff and noting that “[p]rocedural requirement
established by Congress for gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for particular litigants”). Therefore,
Wilson’s ADA claims against IMS are time-barred. 3
B.

Rehabilitation Act Claims

Based on the same conduct from her ADA claims, Wilson also asserts claims
for discrimination and retaliation under the Rehabilitation Act. To make out a
To the extent that IMS is arguing that the Rehabilitation claims are also
time-barred, the Court disagrees. A plaintiff filing suit under the Rehabilitation
Act, unlike one filing suit under the ADA, is not required to file a charge with the
EEOC before filing a complaint. See Williams v. Milwaukee Health Servs., Inc., 732
F.3d 770, 770–71 (7th Cir. 2013).
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prima facie case of Rehabilitation Act discrimination, a plaintiff must show: “(1)
that [she] is a ‘handicapped individual’ under the Act, (2) that [she] is ‘otherwise
qualified’ for the [benefit] sought, (3) that [she] was [discriminated against] solely
by reason of [her] handicap, and (4) that the program or activity in question receives
federal financial assistance.” Grzan v. Charter Hosp. of Nw. Ind., 104 F.3d 116, 119
(7th Cir. 1997) (alterations in original); see also 29 U.S.C. § 794(a). 4 IMS argues
that summary judgment is appropriate as to Wilson’s Rehabilitation Act claims
because she has failed to show the fourth element: that IMS received federal
financial assistance. See IMS’s Mem. Supp. at 13–15.
The only evidence in the summary judgment record on this point comes from
IMS’s responses to Wilson’s requests for admissions. For each of the relevant years,
Wilson asked IMS to admit that it had received funds from the federal government.
See IMS’s SOF, Ex. 32 at 6–7. In response, IMS explained that it “has a contract
with the federal government to provide [Veterans Affairs] services.” See id. That
response is the extent of the evidence on the issue.
The Rehabilitation Act itself does not define “federal financial assistance.”
§ 794(a). Nevertheless, the regulations from the Department of Health and Human
Services interpreting the Act contain the following definition:

The fourth requirement—that the defendant receive federal financial
assistance—applies with equal force to the retaliation claim.
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Federal financial assistance means any grant, loan, contract (other
than a procurement contract or a contract for insurance or guaranty),
or any other arrangement by which the Department provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such
property. . . .
45 C.F.R. § 84.3(h). This definition has been understood to equate federal financial
assistance to a subsidy—that is, payments or transfers for less than fair market
value. See Degutis v. Consol. Rail Corp., No. 93 C 5171, 1994 WL 484525, at *3
(N.D. Ill. Sept. 2, 1994) (Williams, J.); see also DeVargas v. Mason & Hanger-Silas
Mason Co., 911 F.2d 1377, 1382 (10th Cir. 1990); Jacobson v. Delta Airlines, Inc.,
742 F.2d 1202, 1209 (9th Cir. 1984). The mere fact that an entity may have a
contract with the federal government “does not make it amenable to suit under
section 504.” Degutis, 1994 WL 484525, at *3.
With that definition in mind, IMS’s contract to provide VA services qualifies
as federal financial assistance only if IMS is being compensated at above-market
rates. But the summary judgment record before the Court is devoid of any facts to
support such a supposition. All Wilson has pointed to is the admission by IMS that
it has a contract with the federal government to provide Veterans Affairs services.
As noted, this alone is not enough. Thus, because the evidence before the Court is
not sufficient to show that IMS received any federal financial assistance, Wilson has
not met her burden of establishing a prima facie case for her claims under the
Rehabilitation Act.

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Accordingly, the Court grants IMS’s motion for summary judgment on all
counts.
II.

The University
Wilson relies on a joint-employer theory to assert the same claims against the

University as she does against IMS. In turn, the University argues that it is
entitled to summary judgment because it was not Wilson’s employer or, in the
alternative, because it had no knowledge of Wilson’s injuries or alleged requests for
accommodation. University’s Mem. Supp. at 13–15, ECF No. 70.
The Court need not reach the issue of joint employers here because it is clear
that the University had no knowledge of the discrimination and retaliation Wilson
allegedly suffered. In Whitaker v. Milwaukee County, the Seventh Circuit adopted
the position taken by several other circuit courts that “establishing a ‘joint
employer’ relationship does not create liability in the co-employer for actions taken
by the other employer.” 772 F.3d 802, 810–11 (7th Cir. 2014). The court relied in
part on the EEOC’s Compliance Manual, which states that in a joint employer
relationship, a co-employer is liable “if it participates in the . . . discrimination” or
“if it knew or should have known about the . . . discrimination and failed to
undertake prompt corrective measures within its control.” Id. at 812.
Here, there is no dispute that the University “was never informed of
Plaintiff’s injury, her alleged requests for accommodation, her absence from work,
or her doctor’s restrictions.” Pl.’s Resp. University’s SOF ¶ 54, ECF No. 76.
Furthermore, there is no dispute that it was IMS, not the University, that
terminated Wilson’s employment. Id. ¶ 56. There is nothing in the record to suggest
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that the University either participated in the discrimination and retaliation—since,
as is undisputed by the parties, it was unaware of Wilson’s injury—or knew about
the discrimination and retaliation and failed to act. Likewise, Wilson has presented
no evidence and makes no argument that the University should have known about
IMS’s alleged wrongful actions. Therefore, summary judgment is granted in favor of
the University on all counts.
Conclusion
For the reasons stated herein, the Court grants both motions for summary
judgment [65] [69]. Civil case terminated.

IT IS SO ORDERED.

ENTERED

9/12/16

__________________________________
John Z. Lee
United States District Judge

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