Jenkins v. Chicago Transit Authority

Filing 104

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 2/20/2020. Mailed notice(air, )

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

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Plaintiff,
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v.
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No. 15 C 08415
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CHICAGO TRANSIT AUTHORITY,
Judge John J. Tharp, Jr.
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Defendant.
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)
MEMORANDUM OPINION AND ORDER
The plaintiff in this case, Regina Jenkins, was briefly employed by defendant, the Chicago
Transit Authority (CTA), but was terminated when complications arose relating to her fractured
toe. Ms. Jenkins alleges disability discrimination and unlawful retaliation under the Americans
with Disabilities Act (ADA) against CTA. The defendant has filed a motion for summary
judgment. Because the undisputed record shows that CTA did not discriminate against Ms. Jenkins
on the basis of her disability and did not retaliate against her for statutorily protected conduct, the
defendant’s motion for summary judgment is granted.

BACKGROUND
I.

Ms. Jenkins’ Failure to Respond to the Motion for Summary Judgment

Ms. Jenkins has not responded to CTA’s motion for summary judgment or its
accompanying statement of facts. Although a failure to respond at this stage does not yield default
judgment, Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006), it does have
consequences. Namely, the facts material to the dispute are drawn from the moving party’s

statement of facts. Id.
Under the Local Rules for the Northern District of Illinois, “a party filing a motion for
summary judgment . . . must serve and file ‘a statement of material facts as to which the moving
party contends there is no genuine issue and that entitle the moving party to a judgment as a matter
of law.’” Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th
Cir. 2008) (quoting LR 56.1(a)(3)). A party opposing the motion must (1) file a response to each
numbered paragraph in the movant’s statement of material facts including, in the case of
disagreement, a specific reference to the affidavits, parts of the record, or other supporting
materials relied upon and (2) file its own statement, consisting of short, numbered paragraphs, of
any additional facts that would require denial of summary judgment. LR 56.1(b)(3). If the opposing
party’s response “fails to dispute the facts set forth in the moving party’s statement in the manner
dictated by [Local Rule 56.1], those facts are deemed admitted for purposes of the motion” for
summary judgment. Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009).
Although the Court may look beyond the statement of facts and consider “other materials
in the record” in assessing the motion for summary judgment, Fed. R. Civ. P. 56(c)(3), it is not
obligated “to scour the record looking for factual disputes.” Waldridge v. Am. Hoechst Corp., 24
F.3d 918, 922 (7th Cir. 1994); see also Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d
524, 529 (7th Cir. 2000) (holding that the “district court is entitled to limit its analysis of the facts
on summary judgment to evidence that is properly identified and supported in the parties’ [Rule
56.1] statements”). Except where otherwise noted, the Court uses CTA’s “statement of material
facts in determining whether summary judgment is proper, but still view[s] those facts in the light
most favorable to [Ms. Jenkins].” Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006).
Ms. Jenkins’ pro se status does not require a more flexible approach. See Milton v. Slota,

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697 Fed. App’x 462, 464 (7th Cir. 2017) (“[T]he court was entitled to strictly enforce the local
rule, even against a pro se litigant, by deeming uncontroverted statements of material fact admitted
for purposes of deciding summary judgment.”); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.
2006) (stating that “the Supreme Court has made clear that even pro se litigants must follow rules
of civil procedure” in finding no abuse of discretion by district court that adopted defendants’
statement of facts where pro se plaintiff failed to comply with Local Rule 56.1) (citing McNeil v.
United States, 508 U.S. 106, 113 (1993)). Local Rule 56.2, however, does require that parties
provide notice to pro se litigants opposing summary judgment. LR 56.2. CTA has done that here,
ECF No. 93, and the Court finds it appropriate to follow the standards articulated above in view
of Ms. Jenkins’ complete failure to respond to CTA’s motion.
II.

Undisputed Facts

On April 13, 2015, Regina Jenkins accepted an offer of employment to serve as a PartTime Temporary Customer Service Assistant (CSA) with the Chicago Transit Authority (CTA).
Defendant’s Statement of Facts (“DSOF”) Ex. 3, ECF No. 92-2. She was scheduled to start on
May 11, 2015, but eight days prior to her start date, on May 3, she injured her last toe (“pinkie”
toe) on her right foot. Id. ¶¶ 4,13. Her symptoms were “swelling, throbbing, soreness, and a limp.”
Id. ¶ 22. To deal with the injury, Ms. Jenkins began wearing a controlled ankle movement, or
“CAM,” boot that she found at her home. Id. ¶ 14.1
Problems began on May 12, Jenkins’ second day on the job, when she reported for Rail
Safety Training wearing her CAM boot. DSOF ¶ 38. As Ms. Jenkins knew, the CSA position
required a uniform and the CAM boot did not conform with the mandated footwear. Id. ¶¶ 37, 39.

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A CAM boot is a “medical boot that completely surrounds the foot and ankle and comes
up the shin to lock the ankle in place.” DSOF ¶ 21.
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The footwear requirement—black shoes with non-slip soles of a specific width and structure—
was not simply CTA’s aesthetic preference, it was a matter of safety. Id. ¶ 9. Completion of the
Rail Safety Training required navigating the area around the track: trainees had to walk across
elevated ballasts that crossed over the energized third rail. Id. ¶¶ 40. As Ms. Jenkins was aware,
falling on live voltage can lead to serious injury or even death, Id. ¶ 43, and she was unsure whether
she would be able to balance on the boards in her CAM boot. Id. ¶ 25. Nonetheless, Ms. Jenkins
wore the CAM boot because her foot was too swollen for the uniform-compliant shoes she had
worn to earlier training sessions. Id. ¶ 46. As a rule, however, trainees in non-conforming footwear
are not permitted to test on the rails. Id. ¶¶ 41, 42, 44. Accordingly, on May 12, Steven James, the
Rail Instruction Manager, talked with Ms. Jenkins about her non-conforming footwear and asked
her about the nature of her injury. Id. ¶ 35. When Jenkins responded that she did not know because
she had not yet seen a doctor, James asked her to see a doctor to find out what her injury was. Id.
¶¶ 35-36. After her conversation with Mr. James, Ms. Jenkins did not attend the remainder of
training. Id. ¶ 47.
On May 13, Kyleen Giagnoni, the “Coordinator, Administration Support of Rail
Operations,” called Ms. Jenkins and left a message asking Ms. Jenkins to return the call and make
an appointment to turn in her badge. Id. ¶ 50. On the return call, Ms. Giagnoni made an offer: if
Ms. Jenkins resigned, once she was out of the CAM boot and had a doctor’s release, she could
enter the next training session without having to reapply to be a CSA. Id. ¶¶ 50-51. On the same
call, they made an appointment for a face-to-face meeting on May 18. Id. ¶ 50.
Prior to the scheduled meeting, on May 15, Ms. Jenkins visited Dr. Gregory Primus and
was diagnosed with a fractured toe. Id. ¶ 15. Although Ms. Jenkins was capable of walking without
the CAM boot, Dr. Primus advised Ms. Jenkins to limit her walking and wear the boot. Id. ¶¶ 20,

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23. Injuries of this sort generally take six to eight weeks to heal, and Dr. Primus advised Ms.
Jenkins to return in three weeks for re-evaluation. Id. ¶¶ 18-19.
On May 18, Ms. Jenkins attended the meeting with Ms. Giagnoni, but refused to sign the
resignation papers. Id. ¶ 58. Although Ms. Giagnoni informed Ms. Jenkins that she had “a few
days to think about her decision,” Ms. Jenkins was administratively separated from CTA later that
day. Id. ¶ 49. This followed from CTA policy: when, for whatever reason, a CSA is unable to
complete Rail Safety Training, that employee is separated from the CTA. Id. ¶ 48. Although Ms.
Jenkins’ complaint alleges that she was told she would be placed on a “do not hire” list if she
refused to resign, Ms. Giagnoni did not enter any rehire restrictions and Ms. Jenkins’ HR
Separation notification does not show any rehire restrictions. Id. ¶¶ 54-55.
Two days later, on May 20, Ms. Jenkins returned to the CTA office and, again, she refused
to sign the resignation papers. Id. ¶ 52. This time, she requested various accommodations,
including: that her job be put on hold until her injury healed; that she be placed in a different
department (without specifying which department or role); that she be treated analogously to a
CTA bus driver with a suspended license and put temporarily into another area. Id. ¶¶ 29-31. CTA
did not grant these requests, however, and the administrative separation entered on May 18
remained in effect. Ms. Jenkins has not sought employment with CTA since the meeting on May
20, 2015.
Following these events, Ms. Jenkins did not return for a follow-up with Dr. Primus and she
does not recall her symptoms lasting longer than the expected six to eight weeks. Id. ¶¶ 19, 18.

DISCUSSION
Summary judgment is appropriate only if the defendant shows that there is “no genuine
dispute as to any material fact and [that it is] entitled to judgment as a matter of law.” EEOC v.
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CVS Pharmacy, Inc., 809 F.3d 335, 339 (7th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). “A disputed
fact is ‘material’ if it might affect the outcome of the suit under governing law.” Hampton v. Ford
Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). A genuine dispute of material fact exists if “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). When considering a motion for summary
judgment, the Court construes “all facts and makes all reasonable inferences in favor of the nonmoving party.” Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). Nonetheless, to show
that a material fact is disputed, the non-moving party “must support the assertion by . . . citing to
particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1). The moving party “can prevail
just by showing that the other party has no evidence on an issue on which that party has the burden
of proof.” Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993).
I. Disability Discrimination
Ms. Jenkins claims that CTA’s response to her fractured toe violated the ADA, which
proscribes discrimination “against a qualified individual on the basis of disability.” 42 U.S.C.
§ 12112(a). A plaintiff may show discrimination in either of two ways—“by presenting evidence
of disparate treatment or by showing a failure to accommodate”—and Ms. Jenkins has alleged
both. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001). To claim protection under
the ADA, Ms. Jenkins must first establish that she is a qualified individual with a disability. CTA
does not expressly dispute, as a threshold matter,2 whether Ms. Jenkins was a “qualified”

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By arguing that Ms. Jenkins did not identify any reasonable accommodations to
substantiate her accommodation claim, however, CTA has, in effect, argued that Ms. Jenkins is
not a “qualified individual.” See 42 U.S.C § 12111(8) (A “qualified individual” is “an individual
who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”). Nonetheless, the Court chooses to
address the argument in the context it was made. See infra notes 14-20 and accompanying text.
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individual. Therefore, the Court begins with the question of whether Ms. Jenkins had a disability
as defined by the ADA.
A. Disability
The ADA defines disability as “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). With
respect to the first subsection—having an impairment—the statute and associated regulations
provide further definition of the two operative terms, “major life activities” and “substantially
limits.” First, the ADA provides a non-exhaustive list of major life activities that includes, among
others, seeing, hearing, lifting, standing, walking, and working. 42 U.S.C. § 12102(2)(A). Second,
EEOC regulations, which are “entitled to deference,” Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 693 n.7 (7th Cir. 1998), state that “substantially limited” refers to the “condition, manner,
or duration” of an individual’s performance of or ability to perform the major life activity. 29
C.F.R. § 1630.2(j)(4). The regulations also clarify that a qualifying impairment “need not prevent,
or significantly or severely restrict, the individual from performing a major life activity.” 29 C.F.R.
§ 1630.2(j)(1)(ii). This clarification is consistent with Congress’ 2008 amendment to the ADA
which instructed courts to construe the threshold terms “in favor of broad coverage of individuals
. . . to the maximum extent permitted by the terms of this chapter.” 42 U.S.C § 12102(4)(A).
CTA argues that Ms. Jenkins’ fractured toe was not a disability, largely because it was a
“run-of-the-mill short-term injur[y].” Def.’s Mem. at 5, ECF No. 91. As CTA acknowledges,
limited duration is not a categorical bar to disabled status. Id. EEOC regulations state that
impairments “lasting or expected to last fewer than six months can be substantially limiting” for
the purposes of establishing disability. 29 C.F.R. § 1630.2(j)(1)(ix). The Appendix to the

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regulations, however, provides that the length of the impairment is “one factor” in determining
whether an individual is substantially limited and concludes that “[i]mpairments that last only for
a short period of time are typically not covered, although they may be covered if sufficiently
severe.” 29 C.F.R. Pt. 1630, App. According to the Appendix, “if an individual has a back
impairment that results in a 20–pound lifting restriction that lasts for several months, he is
substantially limited in the major life activity of lifting.” Id. Courts assessing short-term injuries
have employed this non-categorical approach, rendering largely fact-bound decisions.3 Compare
Bob-Maunuel v. Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 881-82 (N.D. Ill. 2014) (finding
that plaintiff’s hernia, which required a ten-pound lifting restriction but was repairable through
surgery, and plaintiff’s eye disease, which initially prevented him from seeing out of one eye but
ultimately “improved over the following months,” were disabilities under the ADA), and Summers
v. Altarum Inst., Corp., 740 F.3d 325, 333 (4th Cir. 2014) (finding a disability where plaintiff
alleged “a severe injury that prevented him from walking for at least seven months”), with Shaw
v. Williams, No. 16-CV-1065, 2018 WL 3740665, at *9 (N.D. Ill. Aug. 7, 2018) (collecting cases
and finding that plaintiff’s sprained ankle was not an ADA disability where “the entire period of
Plaintiff’s impairment lasted no more than six months, and for portions within that period, Plaintiff
demonstrated significant improvement and increased mobility”).
Even applying a liberal rule of construction and resolving ambiguity in Ms. Jenkins’ favor,
the facts of record do not provide sufficient evidence to find that Ms. Jenkins’ fractured toe was

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Many decisions, including the majority of cases cited by CTA, continue to rely upon
outdated versions of EEOC guidance. In particular, the statement that “non-chronic impairments
of short duration with little or no long term or permanent impact” such as “broken limbs, sprained
joints, concussions, appendicitis, and influenza” are “usually not disabilities” is from an out-ofdate version of the Appendix to 29 C.F.R § 1630.2. 29 C.F.R. Pt. 1630, App. (effective until May
24, 2011).
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an ADA disability. The evidence shows that her fractured toe healed in, at most, eight weeks, a
shorter timeline than presented in the EEOC’s example or at issue in Bob-Maunuel, Summers, or
Shaw. Length is not dispositive, but EEOC guidance indicates that, to constitute a substantial
limitation, severity must increase as duration decreases. In this case, both duration and severity are
lacking. The first potentially impacted major life activity is “walking.” The only support for a
limitation is that Ms. Jenkins initially experienced “swelling” and a “limp” and that Dr. Primus
instructed her to limit her walking. DSOF ¶¶ 22-23. But ultimately, she “was still able to walk,
even without the CAM boot.” Id. ¶ 23. As the plaintiff, it is Ms. Jenkins’ obligation to put forth
evidence of an impairment: it is not the Court’s role to assume that Ms. Jenkins can prove facts
not before it. Without more evidence chronicling the “condition, manner, or duration” of Ms.
Jenkins’ walking, a reasonable factfinder could not conclude that she was substantially—let alone
severely—limited.
The second potentially impacted major life activity is “working.” To invoke this category,
it is not enough to show “substantial limitation in performing the unique aspects of a single specific
job.” 29 C.F.R. Pt. 1630, App. Rather, a plaintiff must show “that the impairment substantially
limits his or her ability to perform a class of jobs or broad range of jobs in various classes as
compared to most people having comparable training, skills, and abilities.” Id. The class of jobs
may be specified by the “nature of the work” (e.g., “commercial truck driving,” “assembly line
jobs,” or “clerical jobs”) or by reference to “job related requirements” (e.g., jobs requiring
“repeated bending,” “prolonged sitting or standing,” or “extensive walking”). Id. Again, the
evidence is too slim to find that Ms. Jenkins was substantially limited. Although the post-2008
Appendix counsels against “complex and onerous” evidentiary standards, Id. at n.3 (referencing a
pre-Amendment case that found no limitation where plaintiff “did not present evidence of the

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number and types of jobs available to him in the Washington area”), the factual record under
review does not even specify a class of jobs that would be unavailable to Ms. Jenkins. CTA’s
statement of facts does reference a job-related requirement: Ms. Jenkins “believed she would have
had difficulty stooping in the CAM boot.” DSOF ¶ 12. As above, the limitation is brief—it
presumably subsided in less than two months. Further, the factual record under review, which
contains this lone subjective assessment, is too bare to support a finding of a substantial or severe
limitation. Therefore, Ms. Jenkins’ fractured toe does not qualify as a disability under the ADA.
Similarly, the evidence cannot support a finding that Ms. Jenkins had a record of disability
(§ 12102(1)(B)) or was regarded as having a disability (§ 12102(1)(C)). An individual has a record
of a disability if she has “a history of, or has been misclassified as having, a mental or physical
impairment.” 29 C.F.R § 1630.2(k). Here, Ms. Jenkins’ fracture was a one-time, non-chronic
injury. Because there is no evidence that she was classified as impaired in the past, she cannot have
been misclassified. As a result, CTA could not have discriminated on that basis. Id. Subsection (C)
is equally unavailing. The regulations specify a defense to discrimination alleged under the
“regarded as” prong where the claim is based on a “transitory and minor” impairment. 29 C.F.R.
§ 1630.15. To establish the defense, CTA must demonstrate that the impairment was, objectively,
both transitory and minor. The regulation defines transitory as “lasting or expected to last six
months or less.” Id. Here, Ms. Jenkins’ injury was objectively transitory: the evidence indicates it
healed in six to eight weeks. Although the regulation does not elaborate on “minor,” the Court
finds that the injury was objectively minor for the reasons articulated above—namely, that Ms.
Jenkins “was still able to walk, even without the CAM boot.” DSOF ¶ 23.

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Finding that Ms. Jenkins was not disabled within the meaning of the ADA, of course,
dooms her ADA discrimination claims. Nevertheless, the Court reviews the remaining elements
of these claims, which provide additional grounds for dismissal.
B. Disparate Treatment
To survive summary judgment on a disparate treatment claim, Ms. Jenkins must show that
“a reasonable juror could conclude that [she] would have kept [her] job if [she] was not disabled,
and everything else had remained the same.” Graham v. Arctic Zone Iceplex, LLC, 930 F.3d 926,
929 (7th Cir. 2019) (quoting Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764 (7th Cir. 2016)).4
Contrary to past practice, when assessing this question courts are to take a holistic approach to the
evidence. See Ortiz, 834 F.3d at 766 (stating that “all evidence belongs in a single pile and must
be evaluated as a whole”). Nonetheless, courts may still employ frameworks for “organizing,
presenting, and assessing” the evidence before them. David v. Bd. of Trustees of Cmty. Coll. Dist.
No. 508, 846 F.3d 216, 224 (7th Cir. 2017).
Chief among these is the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). McDonnell Douglas burden-shifting kicks off when the
plaintiff makes a prima facie showing of discrimination—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). With the burden

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This articulates a “but for” standard of causation. When Congress amended the ADA in
2008, it changed the causal language from “because of” to “on the basis of” and the Seventh Circuit
has noted that “it is an open question whether the change from ‘because of’ to ‘on the basis of”
changes the ‘but for’ causation standard.” Monroe v. Indiana Dep’t of Transportation, 871 F.3d
495, 504 (7th Cir. 2017). As in Monroe, however, “the parties in this case have not argued that
another causation standard should apply, so [the Court] will continue to apply the ‘but for’
causation standard.” Id.
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shifted, the defendant must respond with a non-discriminatory reason for treating the plaintiff the
way it did. If the defendant does so, the evidentiary burden seesaws back to the plaintiff to show
that the defendant’s explanation was pretextual.
Situated within the post-Ortiz landscape, McDonnell Douglas—or any other framework—
outlines a pattern of evidence that might enable a reasonable juror to find discrimination, but it
does not replace the underlying question of discrimination. As a result, no framework may operate
to the exclusion of other, equally probative patterns of evidence. David, 846 F.3d at 224. Where,
as here, a litigant uses McDonnell Douglas, courts should consider that arrangement of evidence,
but they must also conduct a less structured inquiry into whether “the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s . . . proscribed factor caused the discharge or
other adverse employment action.” Ortiz, 834 F.3d at 765.
Considered within the McDonnell Douglas framework, Ms. Jenkins’ claim does not get off
the ground. More specifically, Ms. Jenkins fails to make a prima facie case and thereby shift the
burden onto CTA because she does not show that she was meeting CTA’s legitimate job
expectations or that similarly situated employees outside of the protected class received more
favorable treatment. As to the first insufficiency, by not wearing proper footwear, Ms. Jenkins
failed to meet two of CTA’s legitimate expectations: that employees comply with the uniform
requirements and that employees are capable of successfully (and safely) completing rail-training.
See, e.g., Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 862 (7th Cir. 2005) (“EGC, as an
employer, is certainly entitled to expect its workers, disabled or otherwise, to use care and caution
in the workplace and to adhere to factory-wide safety policies and requirements, as well as
directives.”). The fact that these failures stemmed directly from Ms. Jenkins’ disability does not
render the decision discriminatory. See id. (An employer can terminate an employee for failure to

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meet legitimate expectations “even if, after further inquiry, [the] employer determines that the
employee’s inability to perform the job ‘is due entirely to a disability.’” (quoting Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir. 1997))).
As to the second shortcoming, Ms. Jenkins has not identified similarly situated employees
who received more favorable treatment. During her termination, Ms. Jenkins requested treatment
on par with CTA’s bus operators with suspended licenses, DSOF ¶ 31, but the bus operators are
not directly comparable because they have different job duties, deal with a different supervisory
chain, and engage in different conduct. See Monroe v. Indiana Dep’t of Transportation, 871 F.3d
495, 507 (7th Cir. 2017). Ms. Jenkins’ failure to identify an alternative set of employees is
“sufficient to end the inquiry” because it is Jenkins’ “responsibility to identify and present
evidence of a comparator at the summary judgment stage.” Hooper v. Proctor Health Care Inc.,
804 F.3d 846, 853 (7th Cir. 2015). As a result, Ms. Jenkins’ claim cannot survive summary
judgment under McDonnell Douglas.
Freed from the structure of McDonnell Douglas, Ms. Jenkins’ claim gets no further. No
configuration of the evidence—direct and/or circumstantial—can support a finding that CTA
terminated Ms. Jenkins’ employment for illegitimate reasons. There is no direct evidence that
supports a finding of discrimination: CTA made no “admission that [it] fired [Ms. Jenkins] on the
basis of [her] disability.” See Monroe, 871 F.3d at 504. The little available direct evidence of intent,
which comes from Ms. Jenkins’ testimony, indicates CTA fired her because she “could not do the
job CTA hired [her] to do.” Jenkins Dep. 128:13-17, ECF No. 92-2. That leaves circumstantial
evidence, which may include:
(1) suspicious timing; (2) ambiguous statements or behavior towards other employees in
the protected group; (3) evidence, statistical or otherwise, that similarly situated employees
outside of the protected group systematically receive better treatment; and (4) evidence that
the employer offered a pretextual reason for an adverse employment action.
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Monroe, 871 F.3d at 504 (quoting Bunn v. Khoury Enter., Inc., 753 F.3d 676, 681 (7th Cir. 2014)).
But nothing points towards a discriminatory motive: the timing was consistent with Ms. Jenkins’
failure to complete the training; there is no evidence of suspicious treatment of other employees
with disabilities; CTA policy delineates a clear, uniform rule—failure to complete Rail Safety
Training “for any reason” results in “separate[ion] from CTA employment,” DSOF ¶ 48; and the
record provides no reason to believe the proffered justification was pretext. In sum, no reasonable
factfinder could conclude that Ms. Jenkins’ disability caused the discharge.
C. Failure to Accommodate
An employer also discriminates on the basis of disability when it fails to provide
“reasonable accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).5 A qualified individual is one 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).
CTA argues that it had no duty to accommodate because Ms. Jenkins did not request
accommodation until it was too late—at the time she made her requests, she had already been
administratively separated. This argument proves too much. The ADA limits the obligation to
“known” disabilities, but the employer’s knowledge need not come through a formal request. Here,

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If the Court had found that, although not actually impaired, Ms. Jenkins had a disability
under the “regarded as” subsection, the failure to accommodate claim would be unavailable. See
Majors v. Gen. Elec. Co., 714 F.3d 527, 535 (7th Cir. 2013) (“The amendments to the ADA
clarified that employers needn’t provide reasonable accommodation to a ‘regarded as’ disabled
individual. 42 U.S.C. § 12201(h).”).

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while Ms. Jenkins did not explicitly inform CTA of her disability or request an accommodation,
her CAM boot made CTA “sufficiently aware” that she “may have a disability that requires
accommodation.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 804 (7th Cir. 2005). Indeed,
the clear relationship between Ms. Jenkins’ inability to perform her job and her impairment led to
CTA’s instruction that she visit the doctor to determine the extent of the impairment. DSOF ¶ 35.
Of course, employers are not obligated to assume all work problems arise from latent or
undisclosed disabilities. In Tate v. Ancell, for example, the Seventh Circuit found that the employer
was not on notice of an employee’s sleep apnea—and therefore had no duty to accommodate—
when he was disciplined for “sleeping on the job.” 551 F. App’x 877, 886 (7th Cir. 2014). And
courts must not encourage claims based on concealment, where “the employee keep[s] his
disability a secret and sue[s] later for failure to accommodate.” Beck v. Univ. of Wisconsin Bd. of
Regents, 75 F.3d 1130, 1134 (7th Cir. 1996). But where the performance issue is self-evidently
intertwined with a disability and there is no evidence of bad-faith, non-verbal notice can suffice.
Importantly, this rule discourages defenses based on manufactured ignorance, the employer’s
equivalent of concealment. See Sears, Roebuck & Co., 417 F.3d at 804 (“[A]n employer cannot
shield itself from liability by choosing not to follow up on an employee’s requests for assistance,
or by intentionally remaining in the dark.”). Viewing the evidence in the light most favorable to
Ms. Jenkins, a reasonable jury could conclude that she had a “known” disability when she was
terminated by CTA.
Awareness of a disability triggers the obligation to “initiate an informal, interactive
process” to identify “potential reasonable accommodations.” 29 C.F.R. § 1630.2(o)(3). A failure
to engage in the required interactive process, however, “is not an independent basis for liability
under the ADA.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014). Rather,

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the failure “need not be considered if the employee fails to present evidence sufficient to reach the
jury on the question of whether she was able to perform the essential functions of her job with an
accommodation”—in other words, whether she was a qualified individual. Basden v. Prof’l
Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013). Ms. Jenkins has identified three potential
accommodations: leave from work to allow her foot to heal, reassignment to a different position,
or temporary participation in a light-duty position.
Before assessing the reasonableness of Ms. Jenkins’ requested accommodations, the Court
considers whether CTA genuinely offered Ms. Jenkins the temporary resignation accommodation
she later requested. It is undisputed that Ms. Giagnoni told Ms. Jenkins that she could resign and
that once she had a doctor’s release, she would be placed in the next available training. DSOF ¶ 51.
It is also undisputed that Ms. Jenkins rejected this accommodation when it was initially offered.
Id. ¶ 52. If that accommodation was genuinely on the table, it would have satisfied CTA’s
obligation under the ADA and Ms. Jenkins’ claim would fail. See Gratzl v. Office of Chief Judges
of 12th, 18th, 19th, & 22nd Judicial Circuits, 601 F.3d 674, 682 (7th Cir. 2010) (“By rejecting the
proposed accommodations, she was responsible for terminating the interactive process and hence
not entitled to relief under the ADA.”). CTA muddies the water, however, by arguing that Ms.
Jenkins’ “employment at CTA would have been at an end regardless of her refusal to sign
resignation papers.” Def.’s Mem. at 14, ECF No. 91. It is not evident—though it is possible—that
CTA’s phrasing includes the above resign-and-rehire scheme. Further, CTA does not argue that
the offer satisfied its obligations under the ADA. Instead, CTA argues that Ms. Jenkins has failed
to identify a reasonable accommodation; therefore, the Court accepts CTA’s framing and turns to
this argument.

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Reasonable accommodations are “[m]odifications or adjustments to the work environment,
or to the manner or circumstances under which the position held or desired is customarily
performed, that enable [a qualified] individual with a disability . . . to perform the essential
functions of that position[.]” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 701
(7th Cir. 2014) (alterations in original) (quoting 29 C.F.R. § 1630.2(o)(1)(ii)). Whether a requested
accommodation is reasonable is “a highly fact-specific inquiry and requires balancing the needs
of the parties.” A.H. by Holzmueller v. Illinois High Sch. Ass’n, 881 F.3d 587, 594 (7th Cir. 2018)
(quoting Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir.
2002)).
Ms. Jenkins’ first suggested accommodation—extended leave from work to allow her
fractured toe to heal—is not a reasonable one under the ADA. The Seventh Circuit recently found
that long-term leave from work generally does not qualify as a reasonable accommodation—the
term is “expressly limited to those measures that will enable the employee to work.” Severson v.
Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017). The court reasoned that because the
ADA is “an antidiscrimination statute, not a medical-leave entitlement,” “[a]n employee who
needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the
ADA.” Id. Not all absence from work falls outside of the ADA’s reasonable accommodation
scheme: “[i]ntermittent time off or a short leave of absence—say, a couple of days or even a couple
of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work
schedule,” two accommodations contemplated by the statute. Id. at 481. See also Haschmann v.
Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir. 1998) (finding request for leave of two to
four weeks reasonable). Given that Doctor Primus instructed Ms. Jenkins to wear the boot for six
to eight weeks, she would not have been able to complete rail training or attend work in compliance

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with CTA’s uniform policy for that amount of time. Even assuming the relevant period was only
six weeks, that constitutes long-term leave under the framework articulated in Severson.6
Further, the record cannot support a finding that, contrary to the general rule, extended
leave was reasonable in this circumstance. Ms. Jenkins provides no evidence that her role with
CTA was one of “a few possible exceptions” to the rule that attendance is an essential function.
See Taylor-Novotny v. Health All. Med. Plans, Inc., 772 F.3d 478, 490 n.47 (7th Cir. 2014) (noting
that regular presence at the job site is an essential function of most jobs but allowing for “a few
possible exceptions to this rule”). Indeed, attendance is plainly necessary for the Customer Service
Assistant position that Ms. Jenkins briefly held. See DSOF Ex. 8, ECF No. 92-2. Nor has Ms.
Jenkins provided any evidence that her absence was not “excessive” in relation to her job
responsibilities. See Haschmann, 151 F.3d at 602. Rather, context indicates the opposite: Ms.
Jenkins sought an extended absence very early in her tenure with CTA, even prior to successful
completion of preliminary job requirements. In sum, the leave sought by Ms. Jenkins was not a
reasonable accommodation under the ADA.
The other two proposed accommodations would have required transferring Ms. Jenkins to
a different position—either permanently or temporarily. As to permanent relocation, it is wellestablished that “the ADA may require an employer to reassign a disabled employee to a different
position as reasonable accommodation where the employee can no longer perform the essential

6

Note that inferences that strengthen Ms. Jenkins claim to be a qualified individual—for
example, that Ms. Jenkins had a shorter duration of impairment or a greater ability to walk without
the CAM boot—weaken her claim to have a disability. Even supposing, contrary to the findings
of the Court, that a reasonable factfinder could deem either requirement satisfied, it would be even
more unreasonable for any single factfinder to conclude that both were satisfied. Because both
classifications are threshold requirements for an ADA discrimination claim, the antagonism
provides further support for the conclusion that Ms. Jenkins’ claims cannot survive summary
judgment.
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functions of their current position.” Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 291 (7th Cir.
2015) (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996)). The employer’s
reassignment obligation, however, is “limited to vacant positions,” Id., and it is the employee’s
“burden to prove that there were, in fact, vacant positions available at the time of [her]
termination.” Severson, 872 F.3d at 482. Here, Ms. Jenkins has put forth no evidence of
contemporaneous vacancies; therefore, no reasonable factfinder could conclude that this
accommodation was reasonably available to CTA.
Ms. Jenkins also requested a temporary reassignment. Again, Ms. Jenkins has not identified
any vacant temporary or light duty positions that she could have filled. As above, “an employer
need not create a light duty position for a non-occupationally injured employee with a disability
as a reasonable accommodation.” Id. (quoting EEOC Enforcement Guidance: Workers’
Compensation & the ADA, 2 EEOC Compliance Manual (CCH) ¶ 6905, at 5394 (Sept. 3, 1996),
1996 WL 33161342, at *12). If, however, the “employer has a policy of creating light-duty
positions for employees who are occupationally injured, then that same benefit ordinarily must be
extended to an employee with a disability who is not occupationally injured unless the company
can show undue hardship.” Id. at 482. But Ms. Jenkins does not argue, and record does not indicate,
that CTA had such a program.
In her termination hearing, Ms. Jenkins did identify a different sort of temporary work
program, requesting that she be treated “like a CTA bus driver with a suspended license.” DSOF
¶ 31. Ms. Jenkins is correct that CTA maintains a program that provides temporary, non-driving
employment for select CTA employees—namely, members of certain unions whose essential
function includes driving. DSOF Ex. 14, ECF No. 92-2. Ms. Jenkins does not fall into this
category, however, and “[n]othing in the ADA requires an employer to abandon its legitimate,

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nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to
intra-company transfers.” Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998).
In sum, no reasonable factfinder could conclude that Ms. Jenkins was a “qualified
individual” and, therefore, her claim fails.
II. Retaliation
To establish a retaliation claim, Ms. Jenkins must show that she engaged in a protected
activity, suffered an adverse action, and that the activity caused the adverse action. Dickerson v.
Bd. of Trs., 657 F.3d 595, 601 (7th Cir. 2011). The relevant protected activity is Ms. Jenkins’
refusal to resign. The question of whether CTA’s proposal—that Ms. Jenkins temporarily resign
and re-enter training after she healed—was genuinely on offer is also relevant to her retaliation
claim. Contrary to the discrimination claim, however, Ms. Jenkins’ retaliation claim is
strengthened by assuming that the offer was genuine. If it was not—if CTA planned to terminate
Ms. Jenkins regardless of her response—there is no possible causal relationship between Ms.
Jenkins’ potentially protected activity and her termination. To allow for a possible causal
relationship, the Court assumes, for the purposes of summary judgment, that CTA intended to
honor the offer.
Nonetheless, Ms. Jenkins’ retaliation claim fails for a separate reason: her bare refusal to
resign cannot reasonably be interpreted as protected activity. To qualify as protected activity, an
employee must communicate that they are opposing discrimination prohibited by the relevant
statute. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663-64 (7th Cir. 2006) (“Merely
complaining in general terms of discrimination or harassment, without indicating a connection to
a protected class or providing facts sufficient to create that inference, is insufficient.”); Miller v.
Am. Fam. Mut. Ins., 203 F.3d 997, 1008 (7th Cir. 2000) (finding no protected activity where

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plaintiff’s complaint “concerned a general displeasure with being paid less than her co-workers
given her longer tenure and the fact that she had trained some of them . . .” and not discrimination
related to a protected class). The facts under review make clear that Ms. Jenkins “refused to sign
the resignation papers,” but they don’t indicate why. DSOF ¶ 52. Even if Ms. Jenkins refused to
resign because she perceived disability discrimination, her reasons for refusal are irrelevant unless
they were communicated to CTA. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir.
1997) (“Gleason claims in her deposition testimony that she ‘feels’ that Novak’s objectionable
behavior ‘encompassed . . . sexual discrimination,’ but unless she made these ‘feelings’ known to
her employer, they are irrelevant.” (alteration in original)); Sitar v. Indiana Dep’t of Transp., 344
F.3d 720, 727-28 (7th Cir. 2003) (“Although an employee need not use the magic words ‘sex’ or
‘gender discrimination’ to bring her speech within Title VII’s retaliation protections, ‘she has to
at least say something to indicate her [gender] is an issue. An employee can honestly believe she
is the object of discrimination, but if she never mentions it, a claim of retaliation is not implicated,
for an employer cannot retaliate when it is unaware of any complaints.’” (alteration in original)
(quoting Miller, 203 F.3d at 1008)). Because there is no evidence that Ms. Jenkins expressed her
refusal in terms implicating disability discrimination, her behavior was not protected under the
ADA.
*****
For the reasons stated above, CTA’s motion for summary judgment is granted.

John J. Tharp, Jr.
United States District Judge

Date: February 20, 2020

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