Knapp v. Evgeros, Inc. et al

Filing 98

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 9/9/2016.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KITTY KNAPP,
Plaintiff,
vs.
EVGEROS, INC., d/b/a Olympic Star Restaurant,
Defendant.

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15 C 754
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Kitty Knapp filed this suit against her former employer, Evgeros, Inc., in Illinois state
court, alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the
Illinois Human Rights Act (“IHRA”), 775 ILCS § 5/1-101 et seq. Doc. 1-1. Evgeros removed
the suit to federal court. Doc. 1. Now before the court are Evgeros’s motion for summary
judgment, Doc. 57; Evgeros’s motion to strike certain exhibits that Knapp submitted in response
to the summary judgment motion, Doc. 80; Knapp’s motion for leave to file instanter a response
to Evgeros’s motion to strike, Doc. 90; and Knapp’s motion for leave to file instanter an
amended response to the summary judgment motion, an amended Local Rule 56.1(b)(3)(B)
response to Evgeros’s Local 56.1(a)(3) statement, and an amended Local Rule 56.1(b)(3)(C)
statement, Doc. 86. Knapp’s motion for leave to file instanter amended summary judgment
responses is denied, Evgeros’s summary judgment motion is granted, Evgeros’s motion to strike
is denied as moot, and Knapp’s motion for leave to file instanter a response to the motion to
strike is denied as moot as well.

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Background
A.

Knapp’s Motions for Leave to File Instanter and Evgeros’s
Motion to Strike

Evgeros moved for summary judgment on March 31, 2016, and the court set a briefing
schedule requiring Knapp to respond by May 13, 2016. Docs. 57, 61. At 11:57 p.m. on May 13,
Knapp moved for an extension of time to file her summary judgment response. Doc. 64. The
court granted the extension and set a new briefing schedule requiring Knapp to respond by June
3, 2016, but it warned that she would “receive no further extensions absent extraordinary
circumstances.” Doc. 66.
June 3 came around, but instead of filing her response, Knapp again moved for an
extension—this time at 11:53 p.m. Doc. 67. Again, the court granted the motion, pushing
Knapp’s deadline back to June 6, 2016, and again it warned that she would “receive no further
extensions absent extraordinary circumstances.” Doc. 69. Knapp missed the June 6 deadline as
well, but this time waited until June 9 even to ask for her third extension. Doc. 72. Even so, the
court granted the extension and set yet another briefing schedule, this time requiring Knapp to
respond by June 14, 2016, and requiring Evgeros to reply by June 28, 2016. Doc. 74. The court
also warned Knapp that “[n]o further extensions for the response papers will be granted.” Ibid.
Knapp filed her summary judgment response on June 14, including a brief opposing
summary judgment, a Local Rule 56.1(b)(3)(B) response to Evgeros’s Local Rule 56.1(a)(3)
statement, and a Local Rule 56.1(b)(3)(C) statement. Docs. 75-76. Those filings were defective
in various ways. For one, Knapp’s Local Rule 56.1(b)(3)(C) statement at times cited whole
deposition transcripts without specifying page or line numbers. Doc. 75 at 3-4 ¶ 13; see Packer
v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 850 (7th Cir. 2015) (“It is not the court’s role or
obligation to read an entire deposition or affidavit in an effort to locate the particular testimony a

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party might be relying on; the court ought to know what portion of a witness’s testimony the
party is invoking so that it can focus its attention on that testimony and assess whether it is
admissible and actually supports the fact or inference for which it is cited.”); Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) (affirming the district
court’s decision to disregard Local Rule 56.1 responses on the ground that they “cited an entire
deposition transcript rather than specific page references”). Knapp also attached materials that
her papers did not cite at all, and her brief contained no citations to the record, to her Local Rule
56.1(b)(3)(B) response, or to her Local Rule 56.1(b)(3)(C) statement. Docs. 76, 79.
The court held a hearing on June 23, 2016, five days before Evgeros’s summary
judgment reply was due. Evgeros had moved to strike five exhibits attached to Knapp’s
response. Doc. 80. The court entered and continued that motion, noting:
I know the defendant’s probably thinking, well, how can I reply [in support of
the summary judgment motion] when I don’t know whether these exhibits are
going to be stricken. And my answer to you is this: There’s no need to
address exhibits that are not referenced in either the brief, the plaintiff’s
56.1(b)(3)(B) response to your 56.1(a)(3) statement, or in the plaintiff’s
56.1(b)(3)(C) statement of additional facts.
And I’ll go further by saying that unless there’s a page number to a deposition
that is referenced in any of those papers, you don’t have to respond to
anything having to do with that deposition. So, if it just says “Smith
deposition,” no pages, you don’t have to respond to that. Because it’s a
party’s obligation—and the Seventh Circuit has been clear time and again on
this—it’s a party’s obligation to not just cite an entire deposition transcript
and make the other party and the judge page through the whole deposition
transcript, you actually have to cite page numbers. So, you don’t have to
respond to anything—any of the matters that I’ve just referenced.
On June 28, 2016, the day that Evgeros’s reply was due, Knapp filed two documents
purporting to be “corrected” versions of her summary judgment response brief, Local Rule
56.1(b)(3)(B) response, and Local Rule 56.1(b)(3)(C) statement. Docs. 83-84. The court
immediately struck both filings on the ground that they were untimely and that Knapp had filed

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them without seeking leave of the court. Doc. 85. Later that day, Knapp moved for leave to file
instanter the same two documents. Doc. 86. That motion is now before the court.
It is best to consider Knapp’s motion for leave to file instanter amended summary
judgment response papers as a request for another extension of time to file her summary
judgment responses. See Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th Cir. 2012)
(treating a late motion for leave to file instanter a summary judgment response as a motion to
extend the deadline for filing the response). Rule 6(b)(1)(B) provides that when a party moves to
extend a deadline that has already passed, the court should deny the motion unless the movant
can show that her failure to meet the deadline was the result of “excusable neglect.” Fed. R. Civ.
P. 6(b)(1)(B); see Hassebrock v. Bernhoft, 815 F.3d 334, 341 (7th Cir. 2016) (“Rule 6 provides
that when a request for extension of time is made after an expired deadline, ‘the court may, for
good cause, extend the time … if the party failed to act because of excusable neglect.’”). The
determination whether a party’s neglect is excusable is “at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co.
v. Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993) (interpreting a parallel provision of the
Federal Rules of Bankruptcy Procedure); see also Flint v. City of Belvidere, 791 F.3d 764, 768
(7th Cir. 2015) (applying Pioneer’s definition of “excusable neglect” to Civil Rule 6(b)(1)(B));
Global Tech. & Trading, Inc. v. Tech Mahindra Ltd., 789 F.3d 730, 732 (7th Cir. 2015) (same);
Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006) (“We have held that Pioneer
applies whenever ‘excusable neglect’ appears in the federal procedural rules.”). Relevant
circumstances include “the danger of prejudice to the [non-movant], the length of the delay and
its potential impact on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good faith.”

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Pioneer, 507 U.S. at 395; see also Peters v. Wal-Mart Stores E., LP, 512 F. App’x 622, 628 (7th
Cir. 2013); Raymond, 442 F.3d at 606. The “[m]ost important” of those factors is “the reason for
the delay”; if the moving party fails to demonstrate “genuine ambiguity or confusion about the
scope or application of the rules or some other good reason for missing the deadline,” she cannot
establish excusable neglect, regardless of how short the delay was or how little it prejudiced the
opposing party. Satkar Hospitality, Inc. v. Fox Television Holdings, 767 F.3d 701, 707 (7th Cir.
2014). A party is “accountable for the acts and omissions of [her] attorneys.” Pioneer, 507 U.S.
at 396-97; see also Moje v. Fed. Hockey League, LLC, 792 F.3d 756, 758 (7th Cir. 2015) (“[A]
lawyer’s errors are imputed to the client for the purpose of [excusable neglect].”).
Knapp has not shown that her delay was the result of excusable neglect; her motion states
only that her attorney, Jason Craddock, “noticed” various errors in the original response papers.
Doc. 86 at ¶¶ 2-4. That Craddock simply took too long to notice the mistakes in her original
filings is a weak enough excuse by itself, but it is actually no excuse at all given that the court
identified the mistakes in open court, with Craddock present, on June 23, five days earlier. Yet
instead of taking immediate action on June 23 or perhaps the next day, Knapp waited a full five
days to clean up the mess, until the very day Evgeros was to file its reply. Because Knapp has
not demonstrated any “genuine ambiguity or confusion about the scope or application of the
rules” or any “other good reason for missing the deadline,” she cannot establish excusable
neglect. Satkar Hospitality, 767 F.3d at 707.
The fact that Knapp offers no excuse by itself establishes that the court should deny her
motion. Still, for the sake of completeness, it is worth pointing out that the other Pioneer factors
do her no help either. The first Pioneer factor is danger of prejudice to the non-movant. Knapp
insists that allowing her late filings will not prejudice Evgeros, and in fact will actually “make it

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easier for [Evgeros] to reply to Plaintiff’s response.” Doc. 86. Maybe that would have been true
if Knapp had filed her motion earlier—say, on June 23, the day that Craddock was warned that
Knapp’s response papers were deficient, or perhaps a day later. Then Evgeros would have had
time to take Knapp’s new filings into account when preparing its reply. But instead, Knapp
waited until the day that the reply was due, with the result that Evgeros wrote a reply to the
filings that she now hopes to amend. Granting Knapp’s motion would force Evgeros to spend
time and money writing yet another reply. Knapp’s delay has prejudiced Evgeros.
The second Pioneer factor—“the length of the delay and its potential impact on judicial
proceedings”—also weighs against Knapp. She inexcusably waited five days to attempt to fix
her deficient response papers, and allowing her to file her amended response on the day
Evgeros’s reply was due would have pushed back the schedule even further than it had already
been pushed. The fourth factor—whether the movant acted in good faith—weighs against
Knapp as well. Inattention is not a new problem for Knapp and her counsel in this case.
Craddock twice failed to appear for status hearings. Docs. 28, 44. Evgeros had to file a motion
to compel discovery when one of Knapp’s designated witnesses, June Miller—who also
happened to be a client of Craddock’s in a related suit against Evgeros—failed to appear for a
noticed deposition. Doc. 36. Evgeros moved under Rule 37(a)(5) for an order requiring Knapp
to pay the expenses it incurred in litigating the motion to compel; Knapp missed the first
deadline to respond to the motion, the magistrate judge granted Knapp’s retroactive motion for
an extension, and then Knapp missed the second deadline as well. Docs. 46, 48, 50, 55, 62. As
noted, the court extended the summary judgment response deadline three times—twice as the
result of requests made at the eleventh hour, and once as the result of a request made three days
after the deadline had passed. Docs. 66, 69, 74. Knapp also blew the deadline to file a response

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to Evgeros’s motion to strike; Knapp’s motion for leave to file the untimely response instanter
asserts that Craddock was unable to file the response on time because he had to “retrieve a lost
wallet.” Docs. 82, 90.
The court is done accommodating Knapp’s disdain for and/or inexcusable inability to
abide by the schedule, particularly given the accommodations she has already received. Knapp’s
motion for leave to amend her response brief and Local Rule 56.1 filings is denied. See Flint,
791 F.3d at 768 (“[C]ase management depends on enforceable deadlines …. In managing their
caseloads, district courts are entitled to—indeed they must—enforce deadlines.”) (internal
quotation marks omitted); Raymond v. Ameritech Corp., 442 F.3d 600, 605 (7th Cir. 2006)
(“Rule 6(b) … clearly gives courts both the authority to establish deadlines and the discretion to
enforce them.”); Reales v. Consol. Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996) (“The district
courts must manage a burgeoning caseload, and they are under pressure to do so as efficiently
and speedily as they can, while still accomplishing just outcomes in every civil action. …
Necessarily, they must have substantial discretion as they manage their dockets.”); Shine v.
Owens-Ill., Inc., 979 F.2d 93, 96 (7th Cir. 1992) (“[J]udges must be able to enforce deadlines.”)
(internal quotation marks omitted). Given this ruling, and the fact that the exhibits that Evgeros
seeks to strike are not cited by Knapp’s response papers or are otherwise immaterial, Evgeros’s
motion to strike is denied as moot, as is Knapp’s motion for leave to file instanter a response to
that motion.
B.

Factual Background

Evgeros filed a Local Rule 56.1(a)(3) statement along with its summary judgment
motion. Doc. 58. Each assertion in the Local Rule 56.1(a)(3) statement cites evidentiary
material in the record and is supported by the cited material. See N.D. Ill. L.R. 56.1(a) (“The

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statement referred to in (3) shall consist of short numbered paragraphs, including within each
paragraph specific references to the affidavits, parts of the record, and other supporting materials
relied upon to support the facts set forth in that paragraph.”). Knapp filed a response brief, a
Local Rule 56.1(b)(3)(B) response to Evgeros’s Local Rule 56.1(a)(3) statement, and a Local
Rule 56.1(b)(3)(C) statement of additional facts. Docs. 75-76. As explained above, she moved
for leave to file instanter amended versions of those filings, but the motion is denied. The facts
are set forth as favorably to Knapp as the record and Local Rule 56.1 permit. See Hanners v.
Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the
truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., LLC, 805
F.3d 278, 281 (7th Cir. 2015).
Knapp worked as a waitress at the Olympic Star Restaurant from 1984 or 1985 until
2013, when she was sixty years old. Doc. 58 at ¶ 2; Doc. 58-1 at 19, p. 121, ll. 18-20; Doc. 75 at
1 ¶ 2. Evgeros acquired the Restaurant in Spring 2012. Doc. 58 at ¶ 3; Doc. 58-5 at ¶ 3; Doc. 75
at 1 ¶ 3. Gerasimos and Evagelina Garbis (“Gerry” and “Eva”) are Evgeros’s shareholders, and
their son, Anastasios Garbis (“Taso”), was a manager at the Restaurant in 2012 and 2013. Doc.
58 at ¶¶ 4-5; Doc. 58-5 at ¶ 4; Doc. 58-6 at ¶ 5; Doc. 75 at 1 ¶¶ 4-5.
At a meeting in April 2012, before the change in ownership, Taso announced to the staff
that they would all have to reapply for their jobs and that not everyone would be rehired. Doc.
58 at ¶ 7; Doc. 75 at 1 ¶ 7. He also explained that employees’ hours would change and that no
employee would have the same schedule week after week. Doc. 58 at ¶ 8. Citing her own
deposition and Taso’s declaration, Knapp denies that Taso said this. Doc. 75 at 1 ¶ 8. But the
deposition plainly supports Evgeros’s assertion, and the declaration says nothing that undermines
it. Doc. 58-1 at 4, p. 27, ll. 18-21 (“I do know as the meeting progressed and he talked about the

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hours wouldn’t be the same”). There is therefore no genuine dispute of fact about whether Taso
announced at the meeting that employees’ hours would not be the same. Cf. Janky v. Lake Cnty.
Convention & Visitors Bureau, 576 F.3d 356, 362 (7th Cir. 2009) (“[L]itigants cannot create
sham issues of fact with affidavits that contradict their prior depositions”—and here, Knapp does
not even have an affidavit) (internal quotation marks omitted). Knapp, who was at the meeting,
stood up and said, “I don’t want to waste your time or my time, if I can’t have a set schedule this
isn’t going to work for me.” Doc. 58 at ¶ 9; Doc. 75 at 1 ¶ 9. Despite her threat, Knapp kept
working at the Restaurant for months, typically on Tuesday and Friday mornings. Doc. 58 at
¶ 23; Doc. 75 at 2 ¶ 23.
Knapp had a pinched nerve in her left elbow that prevented her from carrying large trays
but that otherwise did not interfere with her work or daily activities. Doc. 58 at ¶¶ 15-17; Doc.
75 at 1-2 ¶¶ 15-17, 3 ¶ 5. In February 2013, Eva authorized Knapp to take a leave of absence so
that she could have elbow surgery. Doc. 58 at ¶ 18; Doc. 75 at 2 ¶ 18. While Knapp was on
leave, the Restaurant installed a new computer system. Doc. 58-6 at ¶ 8. In May 2013, Knapp
asked to be put back on the schedule to work, but Christina Thurner, the server responsible for
the schedule, told her that she had to train on the new computer system first. Doc. 58-5 at ¶ 15;
Doc. 58-6 at ¶¶ 3-4, 8.
Knapp trained on the new system and then asked again to be put back to work. Doc. 58
at ¶ 28; Doc. 58-6 at ¶ 9; Doc. 75 at 2 ¶ 28. Knapp told Thurner that she could work only on
Tuesdays and alternating Fridays, because she had agreed to look after her grandchildren on the
other Fridays. Doc. 58-6 at ¶ 10. Thurner relayed Knapp’s scheduling request to Taso, who
instructed Thurner to take Knapp off the schedule and to tell Knapp that she had to speak with
him before she would be put back on the schedule. Doc. 58-5 at ¶¶ 18-20; Doc. 58-6 at ¶ 12.

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Thurner relayed Taso’s message to Knapp. Doc. 58-6 at ¶ 13. Knapp then went to the restaurant
and asked to speak to Gerry; when told that Gerry was unavailable, Knapp said, “I’m done. I’m
going to unemployment.” Doc. 58 at ¶¶ 30-31; Doc. 75 at 2 ¶¶ 30-31. She filed a claim for
unemployment benefits shortly afterwards. Doc. 58 at ¶ 32; Doc. 75 at 2 ¶ 32.
Discussion
Knapp’s complaint lists four counts. Counts I and II allege that Evgeros removed Knapp
from the schedule because she had a disability, in violation of the ADA (Count I) and the
IHRA’s disability discrimination provisions (Count II). Counts III and IV allege that Evgeros
removed Knapp from the schedule because of her age, in violation of the ADEA (Count III) and
the IHRA’s age discrimination provisions (Count IV).
I.

Disability Discrimination Claims
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). An ADA plaintiff must prove
that she has a “disability” in order to prevail. See Silk v. Bd. of Trs., Moraine Valley Comm.
Coll., 795 F.3d 698, 706 (7th Cir. 2015). The ADA defines a “disability” as “(A) a physical or
mental impairment that substantially limits one or more major life activities … ; (B) a record of
such an impairment; or (C) being regarded as having such an impairment (as described in
paragraph (3)).” 42 U.S.C. § 12102(1). Paragraph (3) clarifies that an individual can be
“regarded as” having a disability “whether or not the impairment limits or is perceived to limit a
major life activity.” Id. § 12102(3)(A).

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Evgeros’s initial brief argues that Knapp does not have a “disability” within the meaning
of the ADA because the physical limitations she faced as a result of her pinched nerve were
insufficiently severe and because she was not regarded as disabled. Doc. 57-1 at 6-9. Knapp’s
only argument in response is that a material dispute exists over “whether Defendant
discriminated against Plaintiff because of her disability”; she makes no arguments responsive to
the question whether she in fact has a qualifying disability to begin with. Doc. 76 at 6-7.
Accordingly, Knapp has forfeited any argument that she has a “disability,” and therefore has
forfeited her ADA claim as a whole. See Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d
594, 600 (7th Cir. 2014) (“The non-moving party waives any arguments that were not raised in
its response to the moving party’s motion for summary judgment.”); G & S Holdings LLC v.
Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party
waives an argument by failing to make it before the district court.”); Salas v. Wis. Dep’t of Corr.,
493 F.3d 913, 924 (7th Cir. 2007) (“[A] party forfeits any argument it fails to raise in a brief
opposing summary judgment.”).
In any event, even if Knapp had contested the point and adduced evidence raising a
genuine question about whether she has a “disability” within the meaning of the ADA, summary
judgment would still be appropriate. The ADA prohibits “discriminat[ion] … on the basis of
disability” in making firing decisions; it does not prohibit firing people with disabilities for
reasons not pertaining to the disability. 42 U.S.C. § 12112(a). To survive summary judgment,
Knapp must adduce evidence that would allow a reasonable factfinder to conclude Evgeros “took
an adverse job action against her because of her disability.” Arroyo, 805 F.3d at 286 (emphasis
added) (internal quotation marks omitted). She has not done so.

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Until very recently, Seventh Circuit precedents required district courts to apply two forms
of analysis in discrimination suits, such as this one, where a defendant moves for summary
judgment on the ground that the plaintiff cannot prove that her membership in a protected class
caused the relevant adverse event. See, e.g., Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir.
2016); Carothers v. Cnty. of Cook, 808 F.3d 1140, 1148-49 (7th Cir. 2015). First, a district court
would determine whether the plaintiff had satisfied the so-called “direct method” of proof; that
is, it would look to see whether the plaintiff had “present[ed] sufficient evidence, either direct or
circumstantial, that the employer’s discriminatory animus motivated an adverse employment
action.” Harper v. Fulton Cnty., 748 F.3d 761, 765 (7th Cir. 2014) (internal quotation marks
omitted); see also Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). Second, the district
court would determine whether the plaintiff had satisfied the so-called “indirect method” of
proof. First described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the indirect
method allows the plaintiff to shift the burden of proof on the question of intent to the defendant
once the plaintiff makes certain showings. See id. at 802. Specifically, the plaintiff first has to
make a prima facie case, showing “that (1) she is a member of a protected class; (2) she met her
employer's legitimate job expectations; (3) she suffered an adverse employment action; and (4)
similarly situated employees outside of the protected class received more favorable treatment.”
Kuttner v. Zaruba, 819 F.3d 970, 976 (7th Cir. 2016) (internal quotation marks omitted). If the
plaintiff makes her prima facie case, the burden shifts to the defendant to give a nondiscriminatory reason for treating the plaintiff the way it did, and if the defendant meets its
burden, the burden shifts back to the plaintiff to show that the defendant’s explanation was just a
pretext. McDonnell Douglas, 411 U.S. at 802, 804.

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That was the old way. The Seventh Circuit recently issued Ortiz v. Werner Enterprises,
Inc., __ F.3d __, 2016 WL 4411434 (7th Cir. Aug. 19, 2016), which rejects the distinction
between the direct and indirect methods, stating that “[t]he time has come to jettison these
diversions and refocus analysis on the substantive legal issue.” Id. at *3. The substantive legal
issue in Ortiz was “[w]hether a reasonable juror could conclude that Ortiz would have kept his
job if he had a different ethnicity, and everything else had remained the same.” Ibid. The
district court appeared to have considered some evidence under the “direct method” but not
under the “indirect method,” and vice versa, id. at *2-3, and the Seventh Circuit held that to be
reversible error, id. at *4. In the process, the Seventh Circuit explicitly overruled numerous
decisions “to the extent that these opinions insist on the use of the direct-and-indirect
framework.” Id. at *5 (overruling Andrews v. CBOCS W., Inc., 743 F.3d 230 (2014); Silverman
v. Bd. of Ed. of Chi., 637 F.3d 729 (7th Cir. 2011); Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487 (7th Cir. 2007); Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498 (7th Cir. 2004); Haywood v.
Lucent Techs., Inc., 323 F.3d 524 (7th Cir. 2003); Oest v. Ill. Dep’t of Corrs., 240 F.3d 605 (7th
Cir. 2001); Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000); Chiaramonte v.
Fashion Bed Grp., Inc., 129 F.3d 391 (7th Cir. 1997); Mechnig v. Sears, Roebuck & Co., 864
F.2d 1359 (7th Cir. 1988); and La Montagne v. Am. Convenience Prods., Inc., 750 F.2d 1405
(7th Cir. 1984)). Ortiz also explicitly overruled precedents that instructed district courts to
determine under the direct method whether the plaintiff had presented a “convincing mosaic” of
circumstantial evidence. Id. at *4 (overruling Hatcher v. Bd. of Trs. of S. Ill. Univ., 2016 WL
3770555, at *6 (7th Cir. July 14, 2016); Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir. 2014);
Cloe v. Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013); Smith v. Bray, 681 F.3d 888, 901 (7th
Cir. 2012); Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 674 (7th Cir. 2012); Silverman, 637

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F.3d at 734; Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006); Koszola v. Bd. of Educ.
of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Rhodes, 359 F.3d at 504; Cerutti v. BASF
Corp., 349 F.3d 1055, 1061 (7th Cir. 2003); Robin v. Espo Engineering Corp., 200 F.3d 1081,
1088-89 (7th Cir. 2000)). Ortiz makes clear, though, that it does not undermine “the burdenshifting framework created by McDonnell Douglas,” explaining:
Today’s decision does not concern McDonnell Douglas or any other burdenshifting framework, no matter what it is called as a shorthand. We are instead
concerned about the proposition that evidence must be sorted into different
piles, labeled “direct” and “indirect,” that are evaluated differently. Instead,
all evidence belongs in a single pile and must be evaluated as a whole. That
conclusion is consistent with McDonnell Douglas and its successors.
Id. at *5.
To survive summary judgment, then, a discrimination plaintiff must present evidence
that, considered as a whole, would allow a reasonable juror to conclude that the plaintiff was
discriminated against due to a protected characteristic. McDonnell Douglas identifies one
pattern that the evidence might fit that would enable a reasonable juror to find discrimination—
namely, a pattern of evidence showing that the plaintiff belonged to a protected class, met her
employer’s legitimate expectations, suffered an adverse employment action, and was similarly
situated to other employees who were not members of the protected class who were treated
better, provided that the defendant fails to articulate a reasonable alternative explanation or the
plaintiff shows that the proffered alternative explanation is a pretext. But the pattern identified in
McDonnell Douglas is just one way that the record evidence could enable a reasonable juror to
find discrimination. A district court must not limit its analysis to McDonnell Douglas or treat
some evidence as relevant to the McDonnell Douglas analysis but not to the broader question
whether “a reasonable factfinder [could] conclude that the plaintiff’s race, ethnicity, sex,

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religion, or other proscribed factor caused the discharge or other adverse employment action.”
Id. at *4.
Accordingly, the court will first lay out every piece of (properly of-record) evidence that
weighs either way on the question whether Knapp was fired because she had a disability
(assuming, for the sake of argument, that she had a disability). The court will then see if the
evidence, considered as a whole, fits the McDonnell Douglas pattern; if it does, then Knapp
survives summary judgment. If the evidence does not fit the McDonnell Douglas pattern, then
the court will step back and—again, considering the evidence as a whole—determine whether a
reasonable factfinder could conclude that Knapp was discriminated against; if so, then Knapp
survives summary judgment, and if not, then not.
Here is the evidence weighing in favor of a finding that Knapp was removed from the
schedule because she had a (supposed) disability. First, before Knapp’s surgery, she was not
able to carry large trays without the help of a busboy. Doc. 58 at ¶ 17; Doc. 75 at 2 ¶ 17, 3 ¶ 5.
If carrying trays was a part of her job, then it is possible that the fact that her (supposed)
disability prevented her from performing the task angered her employers, which led them to
remove her from the schedule. Second, Knapp was removed from the schedule after she took a
medical leave of absence to get surgery to fix her elbow. Doc. 58 at ¶¶ 18, 27-29; Doc. 75 at 2 ¶
18, 27-29. It could be argued that the decision’s timing was suspicious. See Morgan v. SVT,
LLC, 724 F.3d 990, 998 (7th Cir. 2013) (explaining that a suspiciously timed adverse
employment action can be evidence of discriminatory animus, although it is rarely sufficient
evidence by itself); Wembi v. Metro Air Serv., __ F. Supp. 3d __, 2016 WL 3878182, at *12-13
(N.D. Ill. July 18, 2016) (denying summary judgment on a retaliatory termination claim where

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the termination followed the protected activity by days and where the defendant offered no
explanation for why the plaintiff was terminated while other employees were not).
Here is the evidence weighing against a finding that Knapp was fired because she was
disabled. Knapp was willing to work only on Tuesday and Friday mornings, even though Taso
told the wait staff that they would have to have flexible schedules. Doc. 58 at ¶¶ 9, 23; Doc. 581 at 4, p. 27, ll. 18-21; Doc. 58-6 at ¶ 10; Doc. 75 at 1 ¶ 9, 2 ¶ 23. Knapp stood up at a staff
meeting in front of management and said that she would not be able to have a flexible schedule.
Doc. 58 at ¶ 9; Doc. 75 at 1 ¶ 9. Shortly before she lost her job, Knapp told Thurner that she
could work only Tuesday mornings and every other Friday morning. Doc. 58-6 at ¶ 10. Taso
told Thurner not to put Knapp back on the schedule—the action that precipitated Knapp’s
conclusion that she had been discharged—right after he heard that Knapp was willing to work
only those mornings. Doc. 58-5 at ¶¶ 18-20; Doc. 58-6 at ¶ 12; Doc. 58-6 at ¶ 10.
As to whether Knapp satisfies her prima facie burden under McDonnell Douglas, the
record shows that she was not meeting Evgeros’s legitimate expectations, as her severe, selfimposed scheduling restrictions were incompatible with its requirement that the wait staff accept
scheduling flexibility. Moreover, the record contains no evidence, one way or the other, about
whether Evgeros treated any similarly situated non-disabled employee better than it treated
Knapp. It is immediately clear, then, that Knapp has not adduced evidence sufficient to satisfy
her prima facie burden under McDonnell Douglas. See Bunn v. Khoury Enters., Inc., 753 F.3d
676, 685 (7th Cir. 2014) (holding that an ADA plaintiff failed to satisfy McDonnell Douglas in
part because he “completely failed to identify, let alone discuss, a similarly situated non-disabled
employee who was treated more favorably”).

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Although Knapp cannot forestall summary judgment under McDonnell Douglas, the
question remains whether, more broadly and stepping outside the McDonnell Douglas
framework, she has adduced evidence otherwise sufficient to allow a reasonable juror to
conclude that she was discriminated against due to her disability. She has not. All she has are
the bare facts that she (supposedly) had a disability and that she lost her job. The timing of
Evgeros’s decision not to put her on the work schedule might appear suspicious at first glance,
but if anything it tends to show that she was not fired because of her elbow; after all, Knapp’s
elbow posed the least risk of interfering with her work in June 2013, right after she had finished
recovering from surgery to fix it. Doc. 58 at ¶ 22; Doc. 75 at 2 ¶ 22. In the meantime, the
evidence amply supports a different and legitimate explanation for Evgeros’s decision not to put
Knapp back on the schedule: Knapp’s insistence on working only six specific days per month.
There is undisputed evidence that it was important to Evgeros that members of its wait staff keep
flexible schedules; Taso announced that fact at the staff meeting in 2012. And there is evidence
that it was Knapp’s limited availability that impelled Taso not to put her back on the work
schedule; Taso ordered Thurner not to put Knapp on the schedule right after he heard that Knapp
was interested in working only Tuesday mornings and every other Friday morning. No
reasonable juror could conclude that Evgeros decided to take Knapp off the work schedule
because Knapp had or appeared to have a disability, rather than because she had limited
scheduling availability. Evgeros is therefore entitled to summary judgment on Knapp’s ADA
claim.
Evgeros’s brief treats Knapp’s IHRA disability claim as identical to her ADA claim, and
Knapp’s response brief does not argue otherwise. Doc. 57-1 at 5-11; Doc. 76 at 6-7.
Accordingly, Knapp has forfeited any argument that her IHRA claim can succeed even if her

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ADA claim fails. See Nichols, 755 F.3d at 600; G & S Holdings, 697 F.3d at 538; Salas, 493
F.3d at 924. Moreover, any such argument would have failed; courts analyze IHRA disability
claims for discriminatory intent the same way that they analyze ADA claims. See Teruggi v. CIT
Grp./Capital Fin., Inc., 709 F.3d 654, 659 (7th Cir. 2013).
II.

Age Discrimination Claims
The complaint also alleges that Evgeros intentionally discriminated against Knapp on the

basis of her age by refusing to put her on the work schedule after she returned from her medical
leave, in violation of the ADEA and the IHRA’s age discrimination provisions. Evgeros first
argues that the ADEA claim is logically inconsistent with Knapp’s age discrimination claims.
Citing Gross v. FBL Financial Services, Inc., 557 U.S. 167, 168 (2009), Evgeros asserts that an
adverse employment action can violate the ADEA only if the plaintiff’s age was “THE REASON
for the discrimination, not A reason.” Doc. 57-1 at 12. So, Evgeros argues, because Knapp
insists that her disability was one reason that she was removed from the master schedule, her age
cannot have been the only reason that she was removed.
That argument misunderstands Gross. Gross addressed whether the ADEA allows a socalled “mixed-motives” instruction. 557 U.S. at 169-70. In a mixed-motives case,
discriminatory animus can be one of several reasons that the plaintiff was fired (or demoted, or
denied a promotion, etc.). See id. at 171. Gross holds that mixed-motives cases fail under the
ADEA; instead, the plaintiff’s age must be a “but-for cause” of her firing (or demotion, or denial
of a promotion, etc.). Id. at 176 (internal quotation marks omitted). In other words, the plaintiff
must prove that she would not have suffered the adverse action if she were younger.
That holding is very different from the one Evgeros imagines Gross to have—that the
plaintiff’s age must be the only but-for cause of the adverse employment action. See Rogers v.

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Bromac Title Servs., LLC, 755 F.3d 347, 352 (5th Cir. 2014) (affirming the district court’s grant
of summary judgment on a discrimination claim because, despite the plaintiff’s assertions to the
contrary, “the district court opinion did not interpret the but-for standard to require [the plaintiff]
to show that any illegal motivation was unaccompanied by a legitimate reason”); Leal v.
McHugh, 731 F.3d 405, 415 (5th Cir. 2013) (“[T]he district court misread Gross, since ‘but-for
cause’ does not mean ‘sole cause.’”); Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th
Cir. 2010) (“Gross does not … plac[e] a heightened evidentiary requirement on ADEA plaintiffs
to prove that age was the sole cause of the adverse employment action.”). Gross says nothing to
endorse Evgeros’s preferred rule, but the rule has another problem—it would undermine every
ADEA claim. Every event (or, at least, every event that is relevant to the ADEA) has multiple
but-for causes. A plaintiff’s hiring is a but-for cause of her firing; if she had never been hired,
she would never have been fired. So is her having been born, and her mother’s having been
born, and her mother’s having been born, and so on. See Howard C. Klemme, The Enterprise
Liability Theory of Torts, 47 U. Colo. L. Rev 153, 162 (1976) (“The problem is: no compensable
tort loss is ever the ‘but for’ result of only one enterprise or activity. It is always the result of an
infinite number of ‘but for’ causes or activities.”). Evgeros’s reading of Gross is not just wrong,
but incoherent.
Still, Knapp has presented no minimally compelling evidence that her age was even one
but-for cause of Evgeros’s decision to take her off the work schedule, and so Evgeros is entitled
to summary judgment. As noted, Ortiz requires the court to consider all of the evidence
weighing one way or the other on the question whether Knapp was taken off the schedule
because of her age, and in light of that evidence must decide whether a reasonable juror could
find that she was. One way that the evidence might allow a reasonable juror to find that Knapp

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was discriminated against because of her age is if it fits the McDonnell Douglas pattern—that is,
if it reveals that Knapp was a member of a protected class (here, people over the age of forty),
that she satisfied Evgeros’s legitimate expectations, that she suffered an adverse employment
action, and that other similarly situated employees under forty were treated better than she was.
Again, though, that is not the only way that the evidence, considered as a whole, could enable a
reasonable juror to find discrimination, and the court must not limit itself to the McDonnell
Douglas framework or otherwise sort the evidence “into different piles, labeled ‘direct’ and
‘indirect,’ that are evaluated differently.” Ortiz, 2016 WL 4411434, at *5.
So, here is all the properly of-record evidence that Evgeros decided to take Knapp off the
schedule because of her age. Knapp was sixty years old in 2013, and she was taken off the
schedule. Doc. 58 at ¶¶ 2, 29; Doc. 58-1 at 19, p. 121, ll. 18-20; Doc. 75 at 1-2 ¶¶ 2, 29.
Knapp’s Local Rule 56.1(b)(3)(C) statement insists that the Restaurant “systematically
eliminated employees over 40,” purports to name three other Evgeros employees who lost their
jobs because of their ages, and alleges that only two of the Restaurant’s current employees are
over forty. Doc. 75 at 3-4 ¶ 13. But the reason that the court is using the words “insists,”
“purports,” and “alleges” is that Knapp does not support any of her assertions with valid citations
to supportive record evidence. Instead, she cites passages in her deposition and Thurner’s
deposition, neither of which remotely support the body of the paragraph, and she cites two other
depositions without specifying page ranges. Ibid. That, as noted above, is as good as no citation
at all. See Packer, 800 F.3d at 850; Ammons, 368 F.3d at 817-18. Accordingly, the court
disregards those assertions.
The evidence that Knapp was not taken off the schedule because of her age, meanwhile,
looks much like the evidence that she was not taken off the schedule because of her purported

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disability. Taso announced that wait staff would have to have flexible schedules, and Knapp told
him that that was unacceptable to her. Doc. 58 at ¶¶ 8-9; Doc. 58-1 at 4, p. 28, ll. 18-21; Doc. 75
at 1 ¶ 9. Knapp later told Thurner that she could work only on Tuesday mornings and every
other Friday morning. Doc. 58-6 at ¶ 10. When Thurner told Taso about Knapp’s scheduling
constraints, Taso had Knapp taken off the master schedule. Doc. 58-5 at ¶¶ 18-20; Doc. 58-6 at
¶ 12. Again, there is undisputed evidence that Knapp, due to her scheduling inflexibility, was
not meeting Evgeros’s legitimate business expectations, and there is no evidence that any
similarly situated younger employee was treated more favorably, as there is no evidence to
indicate that any other employee had availability as restricted as Knapp’s. Again, then, Knapp’s
evidence does not suffice under the McDonnell Douglas framework.
Could a reasonable juror, considering all the evidence, nevertheless conclude that Knapp
was taken off the schedule because of her age? No. There is simply no evidence that could
support anything beyond speculation. All that Knapp can show is that she was over forty and
was taken off of Evgeros’s master schedule, which is insufficient under both the ADEA and the
IHRA’s age discrimination provisions. See Bennington v. Caterpillar Inc., 275 F.3d 654, 660
(7th Cir. 2001) (affirming summary judgment because an age discrimination plaintiff, who could
point only to the adverse employment actions he suffered and to better treatment of a co-worker
who was five years younger, offered no “evidence that [the defendant’s] decisions were
motivated by his age”); Teruggi, 709 F.3d at 659 (applying the same analysis to IHRA and
ADEA claims on summary judgment). Evgeros therefore is entitled to summary judgment on
Knapp’s age discrimination claims.

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Conclusion
For the foregoing reasons, Knapp’s motion for leave to file instanter amended summary
judgment response papers is denied, Evgeros’s summary judgment motion is granted, and
Evgeros’s motion to strike is denied as moot, as is Knapp’s motion for leave to file instanter a
response to the motion to strike. Judgment will be entered in favor of Evgeros and against
Knapp.

September 9, 2016
United States District Judge

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