Mashni v. Board Of Education Of The City Of Chicago
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's summary judgment motion 41 is granted in part and denied in part. The parties shall begin settlement negotiations as soon as practicable. Status hearing of 09/14/2017 remains as scheduled.Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
BOARD OF EDUCATION OF THE
CITY OF CHICAGO,
No. 15 C 10951
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Anthony Mashni brings this lawsuit against his employer, the Board of
Education of the City of Chicago, for discrimination and retaliation in violation of
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the “ADA,”
for short) and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and for
intentional infliction of emotional distress.1 R. 1, Compl.2 Mashni claims that the
principal and assistant principal at the Norman A. Bridge School (which is a
Chicago public school) mocked, insulted, and harassed him because of his
generalized anxiety disorder. Id. Mashni also claims that the Board failed to
accommodate his disability and retaliated against him for requesting the
accommodation. Id. The Board seeks summary judgment on all of Mashni’s claims.
R. 41, Mot. Summ. J. For the reasons discussed below, the motion is granted in part
and denied in part.
Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. §
to the docket are indicated by “R.” followed by the docket number and,
where appropriate, a page or paragraph number.
In deciding the Board’s motion for summary judgment, the Court views the
evidence in the light most favorable to Mashni, because he is the non-movant. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Before summarizing the facts of this case, the Court first addresses two arguments
raised by the Board: (1) that Mashni’s statement of additional facts violates Local
Rule 56.1, and (2) that several statements in Mashni’s declaration should not be
considered. See R. 59, Def.’s Reply Br. at 2-3.
A. Local Rule 56.1
The Board argues that a number of statements in Mashni’s Local Rule 56.1
Statement of Additional Facts, R. 49, should be disregarded. Def.’s Reply Br. at 2.
The Board generally alleges that PSOF3 ¶¶ 6-16, 18, 19, 25, 26, 31, 33, 34, 41, 46,
and 49 are “opinion/argumentative, conclusory, vague, immaterial, speculative,
and/or hearsay” are therefore improperly asserted—but fails to elucidate each
individual statement’s shortcomings. Id. This scattershot approach does not
warrant striking those statements in their entirety.
First of all, the Board has not cited “specific references to the affidavits, parts
of the record, and other supporting materials relied upon …” in its responses to
PSOF ¶¶ 6-11, 14, and 33, as required by Local Rule 56.1. See L.R. 56.1(a), (b)(3)(B)
to the parties’ Local Rule 56.1 Statements of Fact are identified as follows:
“DSOF” for the Board’s Statement of Facts [R. 42], “PSOF” for Mashni’s Statement of
Additional Facts [R. 49], “Pl.’s Resp. DSOF” for Mashni’s response to the Board’s Statement
of Facts [R. 48], and “Def.’s Resp. PSOF” for the Board’s response to Mashni’s Statement of
Additional Facts [R. 60]. Where a fact is undisputed, only the asserting party’s statement of
facts is cited; where an assertion is made by one party and is otherwise challenged, it is so
(emphasis added). So far from precluding Mashni’s reliance on those statements, it
is the Board that actually has conceded them as admitted. See Ammons v. Aramark
Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (“[A] district court is entitled to
expect strict compliance with Rule 56.1.”)
In its responses to the remaining statements, the Board at least refers to the
record. But even with those references, the Board neglects to explain exactly what
about the statements is improper. PSOF ¶¶ 12-13, 15-16, 18, 19, 25, 26, 31, 34, 41,
46, and 49 state facts and cite to supporting material in compliance with Local Rule
56.1(b)(3)(C). Without any insight into the Board’s specific reasons for asking to
exclude the statements, the Court finds no reason to strike them out entirely. But
because the Board’s responses to those statements comply with Local Rule 56.1,
properly disputed statements will be treated as such.
Two of these statements require additional comment. The Court will not
strike PSOF ¶¶ 6 and 46, but Mashni must reduce their substance to admissible
form before trial. See Payne v. Pauley, 337 F.3d 767, 775 n.3 (7th Cir. 2003)
(“Evidence presented to defeat a summary judgment motion need not be in
admissible form, but it must be admissible in content.”). PSOF ¶ 6 relies on hearsay
statements from Mashni’s psychiatrist, Theodore Handrup. Because the statements
were made for the purpose of supporting Mashni’s request for a reasonable
accommodation of his alleged disability, they are not records of a regularly
conducted activity. See Fed. R. Evid. 803(6). So Dr. Handrup must testify to the
substance of PSOF ¶ 6 if it is to be allowed at trial. PSOF ¶ 46 relies partly on
documents that were produced in discovery and discussed in Mashni’s declaration,
but were not included in the record. See R. 50-1, Mashni Dec. ¶ 3 (discussing third
parties’ applications to the Marine Leadership Academy position). At trial, Mashni
must offer the actual documents, and then they may be allowed for a nonhearsay
purpose or under Federal Rule of Evidence 803(6) (with the proper foundation laid).
Additionally, although Mashni did not raise this issue in a sur-reply (at some
point the back and forth must cease), the Court will strike the first sentence of
DSOF ¶ 29 on its own initiative, because that statement is not supported by the
record. DSOF ¶ 29 states that Christopher Brake closed Mashni’s position at the
Bridge School on April 18, 2015, citing Brake’s declaration. DSOF ¶ 29; R. 42-6,
Brake Dec. ¶ 12.4 But Brake testified in his deposition that he did not remember
when he closed the position. Pl.’s Resp. DSOF ¶ 29; R. 50-6, Brake Dep. at 35:16-20.
The Board “may not raise a disputed material fact by submitting an affidavit
containing conclusory allegations which contradict plain admissions in a prior
deposition.” See Adusumilli v. City of Chi., 164 F.3d 353, 360 (7th Cir. 1998).
Without an explanation as where the April 18 date came from, the Board cannot
assert that Brake closed Mashni’s position on that date.
record contains two Brake declarations, at R. 42-6 and R. 60-5. This Opinion
will identify the cited declaration by the appropriate docket number. The same will apply to
depositions that were filed in multiple versions, with each version containing different
excerpts from the deposition transcript. See Mashni Dep. [R. 42-7, R. 50-2, R. 60-6], Brake
Dep. [R. 42-5, R. 50-6, R. 60-3], Cutler Dep. [R. 50-5, R. 60-8].
B. Mashni Declaration
Next, the Board argues that paragraphs 2-7, 9, 11, 16, 18, and 19 of the
Mashni Declaration should be stricken, adopting the same kitchen-sink arguments
it deployed against the PSOF statements discussed above. For the same reasons
discussed in the previous section, the Court leaves those paragraphs in place.
But the Court will strike paragraphs 12-14 of the Declaration. In these
paragraphs, Mashni attempts to supplement his deposition testimony with
additional instances of alleged harassment—even though he repeatedly attested to
the completeness of his answers during the deposition itself. See, e.g., R. 50-2,
Mashni Dep. at 355:21-356:8 (“Q: Have we talked about all the facts that support
your claims that you raised in the lawsuit? … A: I believe we covered most of the
facts. Q: Are there additional facts that support your claims that we have not
discussed? A: I don’t believe so.”) This inconsistency between affidavit and
deposition testimony is not permitted, at least without a reasonable explanation.
“Where a deposition and affidavit are in conflict, the affidavit is to be disregarded
and the court should only consider the deposition unless it is demonstrated that the
statement in the deposition was mistaken.” Kaplan v. City of Chi., 2004 WL
2496462, at *2 (N.D. Ill. Nov. 4, 2004) (quoting Amadio v. Ford Motor Co., 238 F.3d
919, 926 (7th Cir. 2001)) (quotations omitted). Mashni attempts to explain his
earlier omission by arguing that his anxiety medication, Klonopin, “caused [him] to
feel foggy[,] making it difficult to retriev[e] information.” Mashni Dec. ¶ 12. But
Mashni does not offer any evidence that Klonopin has that side effect, or any details
about what would aggravate or mitigate the memory problems (such as dosage, time
passage since taking the medication, whether time of day affects the purported
problem, and so on). At that level of generality, the Board cannot begin to test
Mashni’s conclusory assertion about how memory problems would impair the recall
of the facts concerning Brake’s alleged harassment. And even if the medication had
that effect, there was nothing preventing his attorney from trying to refresh
Mashni’s memory on redirect examination over the course of his three-day-long
deposition. At least if Mashni’s attorney had done that, then the defense could have
asked Mashni questions during the deposition (or, at worst, sought to re-open the
deposition during the fact discovery period). What’s more, there is no suggestion in
the record that Mashni attempted to correct his deposition answers after reviewing
the transcript, under Federal Rule of Civil Procedure 30(e)(1). If he had done that,
the Board again would have had a chance to follow-up on the newly averred facts.
The omitted facts are central to Mashni’s hostile work environment claim, so his
failure to disclose them earlier is not reasonable. So the paragraphs will be
disregarded, as will any PSOF statements that rely on them. With these issues now
addressed, the Court turns to a description of the facts.
C. Factual Background
Mashni is an employee of the Board of Education of the City of Chicago,
which operates the Chicago public-school system. DSOF ¶¶ 1-2. He has worked for
the Board as a Technology Coordinator since 2008. Pl.’s Resp. DSOF ¶ 7. In 2011,
he began working in that role at Norman A. Bridge School, where the pertinent
events took place. DSOF ¶¶ 7-8; Pl.’s Resp. DSOF ¶ 7. The Bridge School consists of
two campuses (a junior high school and an elementary school) and serves students
from pre-kindergarten through the eighth grade. DSOF ¶ 9. Its principal,
Christopher Brake, manages the School’s operations and supervises the Board
employees staffed at the School. Id. ¶¶ 10-11.
In August 2011, Brake hired Mashni to oversee the School’s technological
equipment and assist staff with technology-related issues. DSOF ¶ 11. Mashni’s
responsibilities extended to both campuses—he had an office at both the elementary
school and the junior high and worked at both locations on a daily basis. Id. ¶ 15.
At first, Mashni worked well under Brake, receiving good reviews for his
performance. PSOF ¶ 1; 11. But their relationship started to sour in the summer of
2014, when Mashni began experiencing the symptoms of what was later diagnosed
as generalized anxiety disorder. Id. ¶¶ 11-12. Although Mashni believes that he has
suffered from anxiety for his entire life, the condition did not become “debilitating”
(in his words) until June 2014, id. ¶ 9, and was not formally diagnosed until
November of that year, R. 50-1, Mashni Dec. at Exh. 1, FMLA Health Cert. Mashni
estimates that he suffered episodic flare-ups of anxiety about three times a week—
and sometimes as often as every day—from June to November 2014, and about
thirty times total between mid-November 2014 and mid-January 2015. PSOF ¶ 7.
During these flare-ups, Mashni feels like he is in “flight and fear mode”—his
thoughts race, his body shakes, he cries and he vomits. Id. Mashni treats his
anxiety with a combination of prescription medication and regular sessions with a
psychologist and psychiatrist. Id. ¶ 10.
Mashni asserts that he told Brake about his anxiety disorder in August or
September 2014. PSOF ¶ 13. During this conversation, Mashni described his
disorder and its attendant symptoms in detail. Id. From this moment onward,
Mashni claims, Brake’s attitude towards him became “extremely hostile.” Id. Brake
would ignore Mashni, swear at him, and belittle him in front of other Bridge School
staff—calling him an “asshole” and “incompetent idiot” to other staff members and
telling other employees that he “really need[ed] to hire a new technology
coordinator,” all while Mashni was in earshot. Id. ¶¶ 14-15, 18. Brake, for his part,
denies that he was ever told about Mashni’s anxiety, much less that he responded
with such hostility. Def.’s Resp. PSOF ¶ 13; R. 60-5, Brake Dec. ¶ 7.
Over the next couple of months, Mashni alleges (and the Board disputes) that
Brake regularly subjected Mashni to harassment and verbal abuse, questioning his
competency and mental capabilities and often driving him to tears. PSOF ¶¶ 16-24.
After technical problems interfered with a staff presentation, Brake blamed Mashni
and cursed at him, “You fucking should ha[ve] check[ed] that everything was
working[,] you dumb idiot. I now have the fucking whole staff waiting and I look
like the idiot, you asshole.” Id. ¶ 16. In another incident, Brake attempted to
dissuade a teacher from working with Mashni by telling her to “leave [Mashni]
alone because he cannot multi-task for shit.” Id. ¶ 17. Brake then warned Mashni to
“focus on one thing[,] asshole[,] before I gut you like a pig.” Id. ¶ 17.
Brake was not the only one who allegedly harassed Mashni because of his
anxiety disorder. Mashni contends that Assistant Principal Juan Cardona caused
him discomfort by prying into his personal life—asking Mashni what medications
he was taking, telling him to see a psychiatrist and therapist, and advising him to
deal with his stress by “go[ing] crazy on your wife.” PSOF ¶ 19.
Partly because of this harassment, Mashni’s anxiety grew progressively
worse. Between June 2014 and January 2015, Mashni suffered three panic attacks
at work. PSOF ¶ 9. Mashni characterizes these panic attacks as inducing “seizurelike symptoms”: he cannot walk, talk, or control his breathing, and when the
attacks are at their severest, he may involuntarily soil himself. Id. ¶ 8. Mashni
claims that Brake and Cardona witnessed these panic attacks (they deny it). Id. ¶
12; Def.’s Resp. PSOF ¶12.
In October 2014, Mashni’s anxiety caused him to start missing work,
culminating in a week of full disability leave in early November. PSOF ¶¶ 20, 23.
When Mashni told Brake that he needed to go on leave, Brake stated—according to
Mashni—“[W]e always knew you were a little mental, but I wanted to keep you
around because you are like the [three-legged] family dog.” Id. ¶ 21. Meanwhile,
Cardona responded to Mashni’s request for leave by telling him, “[Y]ou’re going to
have to see a psychiatrist, and you should tell the psychiatrist you’re hearing voices
but you don’t understand what the voices are telling you to do.” Id. ¶ 22.
With Mashni out of the office, Brake hired an hourly employee to help cover
Mashni’s responsibilities. DSOF ¶ 18. Despite this, Mashni received work-related
questions nearly every day of his November leave. PSOF ¶ 23. A month later, in
December 2014—after Mashni had come back to work—Brake hired a second hourly
technology employee. DSOF ¶ 18.
Upon his return, Mashni confronted Brake. PSOF ¶ 24. He told Brake that
Brake’s and Cardona’s harassment was triggering panic attacks. Id. ¶ 24. When the
school clerk interrupted the meeting, Brake remarked to her, “[C]an you believe this
guy is trying to blame his mental problems on me[?]” Id. ¶ 24. Mashni burst into
tears and ran out. Id. ¶ 24. Brake does not remember this encounter. Def.’s Resp.
PSOF ¶ 24; R. 60-3, Brake Dep. at 88:9-11.
Mashni claims that, in another incident, Brake walked in on Mashni while
Mashni was having a panic attack in the bathroom. PSOF ¶ 25. According to
Mashni, Brake watched him throw up and told him, “This is bullshit. You just need
to die already.” Id. ¶ 25. Brake does not remember ever seeing Mashni throw up at
the School and flatly denies ever telling him to “just die already.” Def.’s Resp. PSOF
¶ 25; R. 60-3, Brake Dep. at 90:12-19.
Mashni alleges a litany of other instances where Brake and Cardona mocked
his condition. PSOF ¶¶ 26-32. He claims that Cardona called him a “pussy” for
crying at work, asked him if someone should call an ambulance in case Mashni
passed out, and joked that other Bridge School staff should light candles to calm
Mashni. Id. ¶ 26-29. Brake allegedly ridiculed Mashni by pretending to cry and
taunting, “Oh, my life is terrible. I want to kill myself. I can’t go on anymore.” Id. ¶
26. Whenever Brake or Cardona heard an ambulance go by, they would mock
Mashni by asking him, “[W]e hear an ambulance, are you okay?” Id. ¶ 27. Brake
also insulted Mashni in front of other Bridge School employees, telling a teacher
working with Mashni, “[D]on’t even bother with him, he will just end up crying, he’s
useless.” Id. ¶ 28. Brake and Cardona categorically deny making any of these
remarks. Def.’s Resp. PSOF ¶¶ 26-32; R. 60-4, Cardona Dec.; R. 60-5, Brake Dec.
On January 13, 2015, Mashni suffered a panic attack at work. DSOF ¶ 19.
An ambulance was needed to transport him from the School to the hospital. PSOF ¶
32. Mashni did not return to work the next day; instead, he went on an indefinite5
leave of absence. DSOF ¶ 19. He was told that, pursuant to the terms of the Chicago
Teachers’ Union collective bargaining agreement,6 the Board would hold his
position for him for twelve weeks. Id. ¶ 23. If he did not return to work by the end of
those twelve weeks—March 27, 2015, his so-called “Job Protection Date”—then the
Board would not guarantee that he would have a job to return to. Id. ¶¶ 23-24.
On March 11, Mashni reached out to Brake. PSOF ¶ 34. Over text message,
Mashni requested to speak with Brake before he returned to work, “preferably in
person.” Id. ¶ 34. Brake replied that he was busy; he later followed up and
suggested a meeting date. Def.’s Resp. PSOF ¶ 34. When Mashni then asked that
argues that the leave was not “indefinite” because his psychiatrist
estimated that he would be able to return to work by April 6, 2015. Pl.’s Resp. DSOF ¶ 19;
R. 50-1, FMLA Health Cert. But that estimate was made on February 24, FMLA Health
Cert., more than a month into Mashni’s leave, and the return-to-work date was not
communicated to the Board until March 27, 2015, R. 50-1, Mashni Dec. at Exh. 1, Ltr. to
EOCO. So on January 14, Mashni started his disability leave with no known return-to-work
6Mashni claims that he is not a member of the Chicago Teachers’ Union, so the
terms of their collective bargaining agreement “may” not apply to him. Pl.’s Resp. DSOF ¶
23; Mashni Dec. ¶ 2. But whether or not the collective bargaining agreement controls is
immaterial to this lawsuit because Mashni does not allege that his status as a non-union
member entitles him to more than twelve weeks of job protection.
they meet “offsite … not at the school,” Brake cut him off: “Forget it,” he retorted,
“See you when you return. Stop bothering me already.” PSOF ¶ 34; Def.’s Resp.
PSOF ¶ 34. Also on March 11, Brake instructed his staff to deactivate Mashni’s door
access to the Bridge School and delete Mashni’s computer passwords. PSOF ¶ 35.
In late March, Mashni submitted a letter to the Board’s Equal Opportunity
Compliance Office (“EOCO,” for short) Administrator through his attorney. DSOF ¶
25. The letter described the hostile work environment at the Bridge School and
requested reasonable accommodation for Mashni’s anxiety disorder, pursuant to the
Americans with Disabilities Act. R. 50-1, Mashni Dec. at Exh. 1, Ltr. to EOCO.
Mashni asked “[t]o be placed as a Technology Coordinator II at a different school,
preferably on the Northwest side of Chicago.” R. 50-1, Mashni Dec. at Exh. 1, Reas.
Accomm. Form. In support of the request, Mashni’s psychiatrist, Dr. Handrup,
submitted two forms describing Mashni’s condition, which he diagnosed as
“generalized anxiety disorder w/ panic attacks & OCD features.” See FMLA Health
Cert.; R. 50-1, Mashni Dec. at Exh. 2, CPS Health Cert. Dr. Handrup gave the
condition’s commencement date as November 3, 2014, and stated that he had been
seeing Mashni on a weekly basis since then. FMLA Health Cert. Mashni’s
symptoms were listed as “severe panic attacks, depression, [and] suicidal thoughts,”
and inability “to perform any function that may require focus, concentration, or task
application until further notice.” Id. (emphasis in original). As for Mashni’s future
prognosis, Dr. Handrup opined that “[patient]’s illness will be ongoing indefinitely,
however removing or [reducing] stressors will improve [patient]’s condition (i.e.[,]
hostile work environment).” CPS Health Cert.
EOCO assigned Alan Cutler to investigate Mashni’s accommodation request.
DSOF ¶ 31. Cutler met with Mashni and his attorney on April 27, 2015. Id. ¶ 32.
They discussed a number of accommodation options, including allowing Mashni to
remain in his current position but work only7 at the Bridge School’s junior high
accommodation request was resolved. Id. Mashni and Cutler also determined that
the Board had no vacant technology positions at that time. Id. In response to the
harassment allegations, Cutler advised Mashni that he could file a formal EOCO
complaint against Brake and Cardona, but Mashni did not do so. PSOF ¶ 40. The
next day, April 28, Cutler interviewed Brake and learned that Brake had already
closed Mashni’s position at the Bridge School. DSOF ¶ 35.
About a week after the Cutler meeting, Mashni identified an open job posting
for a STEM Technology Specialist and informed EOCO that he would accept
the PSOF, Mashni claims that he asked only to “mov[e] his … office to the Junior
High building to reduce his daily contact with Brake and Cardona.” PSOF ¶ 39; see also
Mashni Dec. ¶ 8 (“I ... offered … [to] mov[e] my work location to the Bridge Junior High …
.” (emphasis added)); Pl.’s Resp. Br. at 17 (asserting that Mashni suggested “working
primarily at the Junior High Building” (emphasis added)). But in his deposition, Mashni
went further than that: he asked to work only in the junior high school. R. 42-7, Mashni
Dep. at 327:18-328:5 (“Q: … [I]s it fair to state that you were looking for a position outside
of or away from Bridge at another school? A: Yes and no. Part of my accommodation was to
not be removed from the whole entity of Bridge because most of the harassment was, you
know, happening with what—at a certain time, certain place. So I asked if there was
availability to just work at the junior high, you know, accommodate me that way and I
could only work at the junior high.” (emphasis added)); 328:14-18 (“A: So if [the junior high]
would have been my designated work location and my only designated work location, I felt
that would greatly help with my anxiety and take away the harassment.” (emphasis
added)). Where an affidavit and deposition conflict, the Court will consider only the
deposition testimony. Kaplan, 2004 WL 2496462, at *2 (quoting Amadio, 238 F.3d at 926).
reassignment to that role. DSOF ¶ 36. But EOCO denied that request. Id. ¶ 37; R.
42-4, Cutler Dec. at Exh. 11, EOCO Resp. Ltr. In a letter dated May 19, EOCO
stated that it was “unable to provide a directed reassignment to another school”
because, pursuant to the Chicago Teacher’s Union collective bargaining agreement,
“[s]eniority will be considered in the selection of computer technicians and
technology coordinators I, II and III seeking transfer to an announced vacancy.”8
EOCO Resp. Ltr. The letter did not, however, claim that there were other
candidates for the STEM position more senior to Mashni. Id.
The letter went on to inform Mashni that his position at the Bridge School
had been closed on April 18, 2015 “due to budgetary concerns and the changing
needs of the instructional program.” EOCO Resp. Ltr. To compensate, EOCO
retroactively extended Mashni Job Protection Date by three weeks, from March 27
to April 18, 2015. Id. Finally, EOCO advised Mashni of his right to appeal its
decision and explained the appeal process. Id. No appeal was submitted, and EOCO
closed Mashni’s file. DSOF ¶ 40; PSOF ¶ 47.
Mashni continued to apply for vacant positions on his own, and was hired in
August 2015 as a Technology Coordinator at Marine Leadership Academy, another
Chicago public school, where he continues to work until this day. DSOF ¶ 41; Pl.’s
Resp. DSOF ¶ 41; PSOF ¶ 50. The parties disagree as to Mashni’s employment
status between his Job Protection Date and his hiring at the Marine Leadership
Academy. Id. The Board contends that Mashni remained employed through the
its summary judgment briefs, the Board does not assert that seniority is the
reason it denied Mashni the STEM position. R. 43, Def.’s Br.; Def.’s Reply Br. at 18.
summer. DSOF ¶ 41. According to the Board, Mashni was released from medical
leave on August 20, 2015, and immediately staffed in his new position at Marine
Leadership Academy. Id.; R. 42-11, DSOF at Exh. 9, Frank Dec. ¶¶ 14, 16. Mashni
disputes this, arguing that, because he did not return to work before the end of the
2014-15 school year, the Board’s policies called for him to receive a termination
letter on June 30. PSOF ¶ 48. Mashni stops short, however, of asserting that he
actually received a termination letter. Id.
Although he was hired at Marine Leadership Academy, Mashni filed suit
against the Board for disability discrimination under the ADA and the
Rehabilitation Act, and for intentional infliction of emotional distress. The Board
now moves for summary judgment against all of Mashni’s claims.
II. Legal Standard
Summary judgment must be granted “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). A genuine issue 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). In evaluating
summary judgment motions, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make
credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,
704 (7th Cir. 2011), and must consider only evidence that can “be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The party
seeking summary judgment has the initial burden of showing that there is no
genuine dispute and that they are entitled to judgment as a matter of law.
Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
Mashni raises four claims in the Complaint: discrimination in violation of the
ADA, 42 U.S.C. § 12112 (Count 1); retaliation in violation of the ADA, § 12203
(Count 2); discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 794
(Count 3); and a state-law claim for intentional infliction of emotional distress
(Count 4). The Board moves for summary judgment on all four claims. Mot. Summ.
J. Because Mashni concedes that summary judgment is appropriate against the
retaliation claim, R. 47, Pl.’s Resp. Br. at 1, that leaves Counts 1, 3, and 4.
A. “Disability” Under the ADA
The ADA protects “qualified individual[s]” from employment discrimination
“on the basis of disability.” 42 U.S.C. § 12112(a). As a threshold matter, then, it is
necessary to determine whether Mashni has shown (to a reasonable factfinder’s
satisfaction) that he is “disabled” within the meaning of the ADA.9 See Kotwica v.
Rose Packing Co., 637 F.3d 744, 748 (7th Cir. 2011) (plaintiff “bears the burden of
Rehabilitation Act borrows the ADA’s definition of disability. See Garg v.
Potter, 521 F.3d 731, 736 (7th Cir. 2008).
showing that [he] falls within the scope of the ADA’s anti-discrimination provisions”
(citation omitted)). An individual can be disabled in three ways: (1) by having a
“physical or mental impairment that substantially limits one or more major life
activities,” 42 U.S.C. § 12102(1)(A) & (2); (2) by having “a record of such an
impairment,” § 12102(1)(B); or (3) by “being regarded as having such an
impairment,” § 12102(1)(C) & (3). Mashni argues that he is disabled under all three
But first, a note on the ADA Amendments Act of 2008, Pub. L. No. 110-325,
122 Stat. 3553 (codified as amended in various sections of Title 42).10 Congress
enacted these amendments to correct the “inappropriately high level of limitation”
on ADA claims created by Supreme Court precedent and, in doing so, stressed that
“the primary object of attention in cases brought under the ADA should be whether
[employers] have complied with their obligations,” not whether an employee is
disabled. Horgan v. Simmons, 704 F. Supp. 2d 814, 818 (N.D. Ill. 2010) (citing
§ 2(b)(5), 122 Stat. at 3554). So “the question of whether an individual’s impairment
is a disability under the ADA should not demand extensive analysis.” Id. That said,
“though the [2008 amendments] make it easier to prove a disability, it does not
absolve a party from proving one.” Neely v. PSEG Tex., Ltd., 735 F.3d 242, 245 (5th
Cir. 2013) (emphasis in original). And, of course, the statutory definition is, above
all else, what Mashni must satisfy.
the facts giving rise to this case occurred in 2014 and 2015, Mashni’s
claims are governed by the post-amendment ADA.
Mashni argues that he is disabled under the ADA because his anxiety
disorder represents a “mental impairment” that “substantially limits [the] major life
activities” of speaking, breathing, concentrating, thinking, and communicating. See
PSOF ¶¶ 6-10; 42 U.S.C. § 12102(2)(A) (definition “major life activities”). According
to his own testimony, his disorder manifests through bouts of racing thoughts,
uncontrolled breathing, uncontrollable crying and shaking, and sometimes
vomiting, multiple times a week. PSOF ¶ 7. Less frequently, Mashni experiences
full-blown panic attacks that render him completely incapacitated and at times
cause him to soil himself. Id. ¶ 8. In order to manage his anxiety disorder, Mashni
takes two prescription medications and sees a therapist regularly. Id. ¶ 10. These
symptoms are corroborated by two health certificates completed by Mashni’s
psychiatrist, Dr. Handrup, who formally diagnosed Mashni as having “generalized
anxiety disorder w/ panic attacks & OCD features.” See FMLA Health Cert.; CPS
Health Cert. Moreover, Mashni’s disorder prompted him to take two disability
leaves in as many months. PSOF ¶¶ 23, 33. Indeed, the condition’s seriousness can
be inferred from the intensity of Mashni’s treatment: during his second disability
leave, he received roughly three sessions of out-patient treatment per week, on top
psychotherapy. FMLA Health Cert.
The Board, meanwhile, has produced no record evidence that contravenes
this portrayal of Mashni’s anxiety disorder. See Williams v. AT & T Mobility Servs.,
LLC, 186 F. Supp. 3d 816, 824-25 (W.D. Tenn. 2016) (holding that plaintiff had an
“actual impairment” as a matter of law, where she testified that her depression and
anxiety affected her cognitive skills and corroborated that testimony with medical
records, and where defendant failed to refute plaintiff’s testimony). Mashni has
provided more than enough evidence to allow a reasonable jury to find that his
anxiety disorder substantially limited his speaking, breathing, concentrating,
thinking, or communicating.11 See Dentice v. Farmers Ins. Exch., 2012 WL 2504046,
at *11 (E.D. Wis. June 28, 2012) (plaintiff had presented a triable issue of material
fact with respect to whether he was disabled where he provided evidence that he
received medical treatment for his generalized anxiety disorder, panic disorder, and
depression, and took a nine-month leave of absence from work to deal with his
symptoms); Monroe v. Cnty. of Orange, 2016 WL 5394745, at *7 (S.D.N.Y. Sept. 27,
Mashni is “disabled” based on the anxiety disorder’s effects on his
breathing, thinking, and other bodily functions, the Court need not consider whether his
symptoms constitute a significant impairment on the major life activity of working. That is
a more complicated analysis, because the plaintiff must carefully thread a needle. On the
one hand, he must show that his disability limited his ability to work a broad range of jobs,
not just one particular job or under one particular supervisor. Schneiker v. Fortis Ins. Co.,
200 F.3d 1055, 1060 (7th Cir. 2000) (plaintiff’s impairments must “substantially limit
employment generally”); Cassimy v. Bd. of Educ. of Rockford Pub. Sch., Dist. No. 205, 461
F.3d 932, 936 (7th Cir. 2006) (same); Weiler v. Household Fin. Corp., 101 F.3d 519, 525-26
(7th Cir. 1996) (inability to work with specific supervisor is not a substantial impairment on
ability to work); see also Chi. Reg’l Council of Carpenters v. Thorne Assocs., Inc., 893 F.
Supp. 2d 952, 962 (N.D. Ill. 2012) (“The few cases analyzing this issue after the enactment
of the [ADA Amendments Act of 2008] reflect that the ‘broad range of jobs’ requirement
survives the [amendments to the ADA].” (citations omitted)). On the other hand, he must
still be a “qualified individual,” such that he can perform all the essential functions of his
job. 42 U.S.C. §12111(8).
The Court need not undertake this analysis in full, but does make one note: the fact
that Mashni is able to work at Marine Leadership Academy does not, by itself, disqualify
him from claiming disability based on a substantial impairment of his ability to work. “The
determination of whether an impairment substantially limits a major life activity shall be
made without regard to the ameliorative effects of mitigating measures such as medication
[or] learned behavioral or adaptive neurological modifications.” 42 U.S.C. § 12102(4)(E)(i)(I)
& (IV). Mashni currently manages his condition with the aid of two prescription
medications and regular psychiatric care, PSOF ¶ 10—he could very well be unable to
perform his job if it were not for these mitigation measures.
2016) (no reasonable jury would conclude that plaintiff’s breathing was not
substantially limited by his agoraphobia and “history of anxiety and panic,” the
symptoms of which included panic attacks).
The Board argues that, if Mashni’s disorder renders him “incapacitated” as
he claims, he is not a “qualified individual” and so has pled himself out of court.
Def.’s Reply Br. at 6-7. The ADA protects only those who are “qualified,” meaning
they “can perform the essential functions” of their jobs “with or without reasonable
accommodation.” 42 U.S.C. § 12111(8). And if Mashni cannot function at all with his
disability, the Board reasons, he certainly cannot perform the tasks required of a
Technology Coordinator. Def.’s Reply Br. at 7.
But Mashni does not allege that he is incapacitated all the time. His most
severe symptoms emerge only when he is suffering from “flare-ups” or panic
attacks—or when he is subjected to harassment by coworkers. PSOF ¶¶ 8-9. An
episodic impairment qualifies as a disability so long as it “substantially limit[s] a
major life activity when active.” Horgan, 704 F. Supp. 2d at 818 (emphasis added)
(citing 42 U.S.C. § 12102(4)(D)). When Mashni’s anxiety disorder is “active,” such as
in the middle of a panic attack, he cannot control his breath, body, thoughts, or
emotions. PSOF ¶ 7. But when his condition is not active, or when it is being
managed through medication and therapy, he is able to work as normal—as
evidenced by the fact that he is doing fine at Marine Leadership Academy, DSOF ¶
Because Mashni has sufficiently established his disability as a mental
impairment that substantially limits major life activities, there is no need to reach
the issue of whether Mashni is disabled under the “record of disability” or “regarded
as disabled” definitions.12
B. ADA Claims
As an individual with a disability, Mashni may avail himself of the ADA’s
employment discrimination protections. He alleges that the Board discriminated
against him in three ways: (1) by subjecting him to a hostile work environment on
the basis of his disability; (2) by failing to accommodate his disability; and (3) by
effectively terminating him because of his disability. The Court will address each of
these theories in turn.
1. Hostile Work Environment
As a threshold question, it is necessary to address whether hostile work
environment is cognizable under the ADA. The Seventh Circuit has yet to decide
this issue, although it has assumed (in both published and unpublished decisions)
the theory’s availability where the facts did not present a viable claim. See, e.g.,
Shott v. Rush Univ. Med. Ctr., 652 F. App’x 455, 458 (7th Cir.), cert denied, 137 S.
there is no case law preventing Mashni from establishing disability under
all three definitions, however, see Sutton v. United Air Lines, Inc., 527 U.S. 471, 497 (1999)
(Stevens, J., dissenting), superseded by statute, ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553, as recognized in Young v. United Parcel Service, Inc., 135 S. Ct.
1338 (2015) (“The three parts of th[e] definition [of disability] do not identify mutually
exclusive, discrete categories.”), Mashni will have to decide if he intends to present multiple
definitions of disability to the jury. As a practical matter, it might unnecessarily confuse
and burden the jury to pursue all three definitions. In any event, if Mashni wishes to argue
that he is disabled in more than one way, then he must propose appropriate jury
Ct. 592 (2016); Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 603 (7th Cir. 2009);
Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005). In the absence of Seventh
Circuit authority, “courts in this district have generally assumed that the claim
does exist.” Suvada v. Gordon Flesch Co., 2013 WL 5166213, at *8 (N.D. Ill. Sept.
13, 2013) (citation omitted); but see Sibert v. Des Plaines Sch. Dist. 62, 2017 WL
3219268, at *2 (N.D. Ill. July 28, 2017) (“The Seventh Circuit has not recognized
such a cause of action, and this court declines to recognize such a novel legal
In recent years, more and more circuits have explicitly recognized hostile
work environment claims under the ADA. See Fox v. Gen. Motors Corp., 247 F.3d
169, 176 (4th Cir. 2001); Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229,
234–35 (5th Cir. 2001); Lanman v. Johnson Cnty., Kan., 393 F.3d 1151, 1155-56
(10th Cir. 2004); Shaver v. Indep. Stave Co., 350 F.3d 716, 719-20 (8th Cir. 2003).
The circuits that have yet to affirmatively recognize the claim nonetheless assume
that it is a viable theory of recovery when analyzing and ultimately rejecting hostile
work environment claims that fail to survive summary judgment on other grounds.
See, e.g., McDonough v. Donahoe, 673 F.3d 41, 46 (1st Cir. 2012); Flieger v. E.
Suffolk BOCES, 2017 WL 2377853, at *3 (2d Cir. June 1, 2017) (summary order);
Walton v. Mental Health Ass'n. of Se. Penn., 168 F.3d 661, 667 (3d Cir.1999); Keever
v. City of Middletown, 145 F.3d 809, 812 (6th Cir. 1998); Brown v. City of Tucson,
336 F.3d 1181, 1190 (9th Cir. 2003); Cooper v. CLP Corp., 679 F. App’x 851, 852–53
n.6 (11th Cir. 2017) (not precedential); Baloch v. Kempthorne, 550 F.3d 1191, 1201
(D.C. Cir. 2008). No circuit has held that these claims are not available under the
ADA. And because the statutory text from which Title VII hostile work environment
claims spring is the same as the ADA’s, Fox, 247 F.3d at 175 (comparing § 2000e2(a)(1) (Title VII): “terms, conditions, or privileges of employment” with § 12112(a)
(ADA): “terms, conditions, and privileges of employment”), the Court agrees that the
ADA permits recovery for hostile work environment based on disability
When analyzing hostile work environment claims under the ADA, the
Seventh Circuit has “assumed that the standards for proving such a claim would
mirror those … established for claims of hostile work environment under Title VII.”
Mannie, 394 F.3d at 982 (citations omitted). This requires proof that (1) the
plaintiff’s “workplace was both subjectively and objectively hostile”; (2) plaintiff was
harassed because of his disability; and (3) the harassment was “so severe or
pervasive as to alter the conditions of employment [or] create an abusive working
environment.” Id. (citations omitted)
Mashni has presented enough evidence in support of each element to survive
summary judgment. First, a jury could reasonably find that Mashni’s work
environment was both objectively and subjectively hostile. See Mannie, 394 F.3d at
982. Although the complained-of conduct must go beyond “simple teasing, offhand
comments, and isolated incidents (unless extremely serious),” Silk v. City of Chi.,
194 F.3d 788, 807 (7th Cir. 1999), the “working environment [need not] be ‘hellish’
before a [hostile work environment] suit can succeed,” Jackson v. Cnty. of Racine,
474 F.3d 493, 500 (7th Cir. 2007)). Mashni readily meets this standard (if his
version of the facts is believed). The subjective element is satisfied because not only
did Brake’s and Cardona’s conduct frequently leave Mashni in tears, it ultimately
triggered a panic attack so serious that he was rushed to the hospital in an
ambulance. DSOF ¶ 19; PSOF ¶ 32; see also Harris v. Forklift Sys., Inc., 510 U.S.
17, 22 (1993) (“Title VII comes into play before the harassing conduct leads to a
On whether the hostility was objectively serious enough, relevant
considerations include the “frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.”
Harris, 510 U.S. at 23. Mashni alleges that, over the course of about five months
(between August 2014 and January 2015), Brake and Cardona harassed him more
than two dozen times. PSOF ¶¶ 14-32. Many of the comments were directed at
Mashni; all were made within his earshot. See Algarin v. Loretto Hosp., 2012 WL
710177, at *11 (N.D. Ill. Mar. 5, 2012) (offensive comments more likely to be
objectively hostile if “made in the presence of the plaintiff and directed at the
plaintiff”) (citing McPhaul v. Bd. of Comm’rs of Madison Cnty., 226 F.3d 558, 567
(7th Cir. 2000)). Several comments specifically mocked his disability. See, e.g.,
PSOF ¶¶ 21, 26, 27, 29. At other times, Brake and Cardona insulted or mocked
Mashni to his coworkers in Mashni’s presence, humiliating him in front of others.
See, e.g., PSOF ¶¶ 15-18, 24, 28-29, 32. In aggregate, this conduct could be deemed
objectively hostile.13 Of course, Brake and Cardona deny making any of these
comments. Def.’s Resp. PSOF ¶¶ 14-32. But a jury, not this Court, must decide who
Next, Mashni must show that the harassment “alter[ed] the conditions of
[his] employment.” See Mannie, 394 F.3d at 982. He may do this by “demonstrating
either a tangible employment action, such as discharge or demotion, or a nontangible action, such as discriminatory conduct so severe or pervasive as to create
an abusive working environment.” Id. (citing Silk, 194 F.3d at 804-05). Mashni
alleges that Brake’s and Cardona’s harassment drove him to take an indefinite
leave of absence. See DSOF ¶ 19. He was so unwilling to return to the Bridge School
that he remained on leave past both his original Job Protection Date and the
extension provided by EOCO—putting his job in jeopardy. Id. ¶¶ 23-24, 37; PSOF ¶
48. Based on these facts, Mashni can establish that he suffered a change in his
working conditions. See Bell v. City of Chi., 2004 WL 3119014, at *11 (N.D. Ill. Dec.
20, 2004) (rejecting defendant’s argument that plaintiff “cannot demonstrate that
the conditions of her employment were altered,” where plaintiff “was moved to
another office and ultimately took a medical leave of absence because of [her
also argues that Brake and Cardona harassed him by sending him text
messages with work-related questions while Mashni was on disability leave. But this does
not constitute offensive, much less harassing, behavior. See Sibert, 2017 WL 3219268, at *2
(N.D. Ill. 2017) (“It is difficult to conceive how [plaintiff] could have been working in a
hostile work environment when he was on leave and not at work.”); Echevarria v.
AstraZeneca, LP, 133 F. Supp. 3d 372, 405 (D. Puerto Rico 2015) (“Leaves of absence do not
erect barriers against communication between employers and employees on leave.”
Finally, the record includes enough facts that, if credited by a jury, prove a
causal relationship between Brake’s and Cardona’s harassment and Mashni’s
anxiety disorder. “[W]hen a harasser uses such [disability]-specific and derogatory
terms as to make it clear that he is motivated by a general hostility to the presence
of [disabled persons] in the workplace,” that creates an “inference of discrimination
on the basis of [disability].” Lord v. High Voltage Software, Inc., 839 F.3d 556, 562
(7th Cir. 2016) (evaluating Title VII claim) (citing Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998)) (internal quotation marks omitted). Many of the
harassing comments that Mashni attributes to Brake and Cardona refer to his
anxiety disorder or to the symptoms of that disorder (namely, depression, crying,
and reduced cognitive function). See, e.g., PSOF ¶¶ 17 (“[L]eave [Mashni] alone
because he cannot multi-task for shit.”), 21 (“[W]e always knew you were a little
mental.”), 26 (“Oh, my life is terrible. I want to kill myself. I can’t go on anymore.”),
27 (“[W]e hear an ambulance, are you okay?”). Based on this, and the fact that
Mashni claims the harassment began only after he told Brake about his disability,
id. ¶ 31, a jury could infer that more content-neutral insults were also motivated by
antipathy towards Mashni’s disability.
Although Mashni has enough evidence to show a hostile work environment,
he still must establish employer liability for it. The standard for employer liability
differs depending on whether the harasser is a supervisor or merely a coworker:
“[a]n employer may be strictly liable for harassment by supervisors [subject to the
possibility of an affirmative defense], but a negligence standard applies for
harassment by coworkers.” Jajeh v. Cnty. of Cook, 678 F.3d 560, 568 (7th Cir. 2012).
The parties agree that Brake supervised Mashni, DSOF ¶ 13; Pl.’s Resp. DSOF ¶
13, but dispute whether Cardona did also, PSOF ¶ 5; Def.’s Resp. PSOF ¶ 5. Mashni
argues that Cardona qualifies as a supervisor because he “ha[d] authority to give
[Mashni] instructions or directions” Mashni, R. 50-6, Brake Dep. at 39:17-22, and
“would give [Mashni] instructions on [his] daily tasks,” R. 50-2, Mashni Dep. at
181:9-17. PSOF ¶ 5. But “supervisor is a term of art that denotes more than an
individual with a higher rank, a superior title, or some oversight duties.” Jajeh, 678
F.3d at 568 (internal quotation marks and citation omitted). “Rather, a supervisor
… will generally have the authority to hire, fire, promote, demote, discipline or
transfer a plaintiff.” Id. Mashni does not assert that Cardona had these powers and
indeed the record reflects that he did not, see R. 50-6, Brake Dep. at 39:14-16 (“Q:
Did Mr. Cardona have authority to discipline Mr. Mashni? A: No.”). So, for the
purposes of the hostile work environment claim, Cardona counts as a coworker. The
Court will therefore assess the Board’s liability for Cardona’s conduct under the
negligence standard, while liability for Brake’s conduct is analyzed under the
affirmative-defense framework set out in Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 765 (1998).
First, Cardona. An employer is liable for a coworker’s harassment if it was
“negligent in either discovering or remedying the harassment.” Jajeh, 678 F.3d at
569. Here, there is no dispute as to whether the Board knew of Cardona’s alleged
harassment; Mashni complained of his behavior directly to EOCO. See PSOF ¶ 39;
Def.’s Resp. PSOF ¶ 39. “Once an employer is aware of workplace harassment, it
can avoid liability by taking prompt and appropriate corrective action reasonably
likely to prevent the harassment from recurring.” Jajeh, 678 F.3d at 569 (citations
and quotation marks omitted). “[P]rompt investigation is the hallmark of
reasonable corrective action.” Vance v. Ball State Univ., 646 F.3d 461, 473 (7th Cir.
2011) (citation omitted). But the Board, by its own admission, made no attempt to
investigate the harassment claims through EOCO. Def.’s Resp. PSOF ¶ 43. Nor did
the Board attempt to separate Mashni and Cardona by, for example, transferring
one of them to a different workplace, see Tutman v. WBBM-TV, Inc./CBS, Inc., 209
F.3d 1044, 1048-49 (7th Cir. 2000), or even temporarily separating them within the
same workplace to undertake an investigation. A jury could reasonably interpret
these omissions as a failure by the Board to fulfill its legal duty to rectify workplace
Next, Brake. Because he is a supervisor, the Board is strictly liable for
Brake’s alleged harassment unless it successfully asserts the Ellerth affirmative
defense. See Ellerth, 524 U.S. at 765. The defense is available only if Brake did not
institute a tangible employment action against Mashni. See id. In that case, the
Board may avoid liability by establishing that (1) it exercised “reasonable care to
prevent and correct promptly any harassing behavior”; and (2) Mashni
“unreasonably failed to take advantage of any preventative or corrective
opportunities provided by [the Board] or to avoid harm otherwise.” See id.
Here, Mashni argues that Brake took a tangible employment action against
Mashni when he closed Mashni’s position at the Bridge School.14 As a result, he
reasons, the Board cannot assert the Ellerth defense at all. The Court disagrees. “A
tangible employment decision requires an official act of the enterprise, a company
act.” Ellerth, 524 U.S. at 762. Often, the decision is “documented in official company
records, and may be subject to review by higher level supervisors.” Id. In most
cases, the action “inflicts direct economic harm.” Id.
The power to close Mashni’s position certainly “fall[s] within the special
province of the supervisor.” See Ellerth, 524 U.S. at 762. But Mashni has not shown
also argues that “Brake’s … actions were tantamount to a termination
under [the Board’s] policy.” Pl.’s Resp. Br. at 14. The policy in question requires workers on
disability leave to return by their Job Protection Date or be subject to termination. PSOF ¶
48; R. 50-5, Cutler Dep. at 68:19-69:9. But even assuming that Mashni was actually
terminated, that would not constitute a “tangible employment action” in this context. An
employer is only cut off from the Ellerth defense if the tangible action was “taken by the
harassing supervisor.” Johnson v. West, 218 F.3d 725, 731 (7th Cir. 2000) (emphasis in
original) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998)).
In Johnson v. West, the Seventh Circuit held an employer not liable for firing the
plaintiff where the plaintiff’s termination was partly caused by her harasser but did not
result from his harassment. 218 F.3d at 731. In that case, the plaintiff filed a complaint
with her employer’s EEO office, alleging that her supervisor had sexually harassed her. Id.
at 729. Her employer transferred her to another position so she would not have to work
with her supervisor while the EEO office investigated her complaint. Id. While the
investigation was still pending, however, the plaintiff encountered her (now former)
supervisor in a hallway and hit him in the face. Id. at 729. The supervisor reported her to
their employer and, even though the EEO investigation ultimately concluded that the
plaintiff had been sexually harassed, the plaintiff was fired for the assault. Id. The Seventh
Circuit held that, even though the supervisor’s “actions created a hostile working
environment for” the plaintiff and “his report of her actions resulted in her being fired,”
there was no causal link between the harassment and her firing. Id. at 731. The supervisor
“played no role in the decision to fire [the plaintiff], and the decision to fire her was made
…. [through] the proper administrative channels.” Id.
If Mashni was indeed terminated after his Job Protection Date, that termination
resulted from the application of the Board’s general policies, not from Brake’s harassment.
In fact, Mashni admits as much. See PSOF ¶ 48 (stating not that Mashni was terminated,
but that he “would receive a termination letter due to the loss of his job protection” “[u]nder
the Board’s policies”).
that this caused “economic” harm to him, id.: nowhere does he allege that he
experienced a change in status, pay, or benefits as a result. Brake closed Mashni’s
position sometime before April 28, 2015 (the Board claims that the specific date was
April 18, 2015). DSOF ¶ 35; R. 42-4, DSOF at Exh. 3, Cutler Dec. ¶ 17; Cutler Dec.
at Exh. 8, Case Record Log; EOCO Resp. Ltr. But Mashni’s job protection had
already expired on March 27, 2015 (it was retroactively extended by EOCO to April
18, EOCO Resp. Ltr.), yet he remained employed until at least June 30.15. DSOF ¶
24; PSOF ¶ 48; see Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir. 2009) (no tangible
employment action where plaintiff understood that she was on leave, remained on
the employer’s weekly schedule despite her absence, and was listed as “active” on
employer’s payroll system). So Mashni has not established that the act of closing his
position caused him tangible economic harm. In fact, around the time Brake closed
Mashni’s position, Mashni had already asked EOCO to be transferred away from
the Bridge School and was in the process of discussing that accommodation. DSOF
¶ 24, 32, 35-36; Reas. Accomm. Form; see also Stutler v. Ill. Dep’t of Corrs., 263 F.3d
698, 702-03 (7th Cir. 2001) (lateral transfer without loss of benefits was not an
adverse employment action).
Mashni and the Board dispute whether there was ever a break in his
employment status. The Board contends that he remained on employed and on a leave of
absence until his hiring at Marine Leadership Academy, DSOF ¶ 41; Mashni argues that,
under Board policy, he should have received a termination letter, PSOF ¶ 48. But Mashni
never contends that he was actually terminated. He states only that the Board’s policies
called for him to “receive a termination letter … on June 30” if he was not released to
return to work by the end of the school year, PSOF ¶ 48, (and there is no indication that he
was released). Because the Court must take all inferences in the light most favorable to
Mashni, it is assumed that the Board’s policies were followed and Mashni received this
letter on June 30.
What’s more, Mashni has not established a causal relationship between
Brake’s harassment and his decision to close Mashni’s position. See Seventh Circuit
Pattern Jury Instruction 3.05B; Johnson v. West, 218 F.3d 725, 731 (7th Cir. 2000);
cf. Ellerth, 524 U.S. at 765 (employer may not raise an affirmative defense if
plaintiff “can demonstrate that a supervisor’s harassment culminated in a tangible
employment action” (emphasis added)). The Board contends that Brake closed the
position for a nondiscriminatory reason; namely, that he thought it would save
money to eliminate the salaried Technology Coordinator position and replace it with
two hourly employees. DSOF ¶ 30. Mashni offers nothing to discredit the
genuineness of Brake’s intention.16 See Pl.’s Resp. DSOF ¶ 30. Therefore, the Board
may raise an affirmative defense.
But even though the Ellerth defense is available, the Board has not produced
enough undisputed evidence of the defense to prevail at summary judgment. The
Board points to (1) its promulgation of a comprehensive nondiscrimination policy
and (2) its establishment of an equal employment opportunity office tasked with
investigating employee complaints, DSOF ¶¶ 5-6, as proof that it has “exercised
reasonable care to prevent and correct promptly any … harassing behavior,”
Ellerth, 524 U.S. at 765. But “[t]he mere existence of such a policy … does not
necessarily establish that the employer acted reasonably in remedying the
harassment after it has occurred or in preventing future misconduct.” Cerros v.
Steel Techs., Inc., 398 F.3d 944, 953 (7th Cir. 2005). And the Board has not shown
disputes that Brake’s decision actually saved money. Pl.’s Resp. DSOF ¶
30. But that is not the point; Mashni must rebut the sincerity of the motive, not whether,
down the road, the school actually ended up saving money.
that it took any steps to correct Brake’s harassing behavior; in fact, it admits that it
did not even investigate the alleged harassment. Def.’s Resp. PSOF ¶ 43; see also
Cerros, 398 F.3d at 954 (“[T]he absence of [an investigation] may signal a failure to
meet this standard of ‘prompt and appropriate corrective action.’”).
The Board contends that Mashni, not the Board, bears responsibility for the
absence of an investigation into Brake’s conduct. When Mashni met with EOCO
representatives in April 2015, he was given the option of filing a formal complaint
against Brake and Cardona, but declined to do so. PSOF ¶ 40. The EOCO
representatives did their part, the Board argues, but Mashni “unreasonably failed
to take advantage of [the] preventative or corrective opportunities provided by the
employer.” See Ellerth, 524 U.S. at 745 (showing that plaintiff “unreasonabl[y]
fail[ed] to use any complaint procedure provided by the employer … will normally
suffice to satisfy” the second element of the Ellerth defense).
Mashni argues that he did not understand the implications of his decision to
not file a formal complaint, because the EOCO representatives “never said that
such a complaint was required for the EOCO to investigate … [or] take remedial
action.” PSOF ¶ 40. It is not the Board’s responsibility to explain its policies to
Mashni, so long as the policies are available to him “without undue risk or expense.”
See Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). Nevertheless, the
Board has not established that Mashni behaved unreasonably. “The relevant
inquiry is … whether [Mashni] adequately alerted [the Board] to the harassment,
thereby satisfying [his] obligation to avoid the harm, not whether [he] followed the
letter of the reporting procedures set out in the employer’s harassment policy.”
Cerros, 398 F.3d at 952. Even though Mashni declined to file a formal complaint, he
complained of Brake’s harassment to EOCO through a letter from his lawyer and at
an in-person meeting.17 PSOF ¶ 37, 39; Ltr. to EOCO.; see also Passananti v. Cook
Cnty., 689 F.3d 655, 674 (7th Cir. 2012) (“The jury  could reasonably find that
[plaintiff] acted quite reasonably in complaining through her letter to” the
employer’s outside counsel “which reached the office that was responsible for
investigating the claims of sexual harassment,” even though she did not follow the
employer’s formal policy). Having failed to prove its affirmative defense, Board is
not entitled to summary judgment on the hostile work environment claim. This
claim can proceed based on both Brake’s and Cardona’s harassment.
more, the Board does not point to any policies that actually require
complainants to file a formal document before EOCO can investigate alleged harassment.
The Board has introduced two policies to the record, R. 42-4. The Combined Americans with
Disabilities Act and 504 Policy, which provides “complaint … procedures … [for] allegations
of disability discrimination,” requires only that “[c]omplaints … be submitted in writing …
[to] the EOCO.” R. 42-4, Cutler Dec. at Exh. 2, Board Policy 501.1 at V.A.2.a. It is not clear
why the March 27 letter from Mashni’s counsel to EOCO, which details Brake’s
harassment, does not qualify as a written complaint. See Ltr. to EOCO. The Comprehensive
Non-Discrimination Title IX and Sexual Harassment Policy, on the other hand, has a
“Formal Complaint” section that states, “[w]hen an individual seeks resolution of a
discrimination, sexual harassment or retaliation complaint, the EOCO will request a signed
complaint from the Complainant.” R. 42-4, Cutler Dec. at Exh. 1, Board Policy 102.8 at V.
B.1. But the next paragraph down lists an exception: “The EOCO Administrator may act on
allegations of discrimination [including “discrimination on the basis of … disability,” id. at
III.A.1] … or other violations of this policy even if there is no signed complaint or a
Complainant chooses not to pursue the matter.” Id. at V.B.3 (emphasis added). The parties
do not state what policy the EOCO representatives were referring to at the April 27
meeting, but neither of the policies in the record require a formal complaint before an
investigation into harassment can commence.
2. Failure to Accommodate
Next, Mashni argues that the Board failed to accommodate his disability.
Under the ADA, employers engage in disability discrimination when they do not
“mak[e] 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).
The duty to provide “accommodation” is not synonymous, however, with a duty to
provide “a perfect cure for the problem,” Stewart v. Cnty. of Brown, 86 F.3d 107, 112
(7th Cir. 1996); the statute “does not require an employer to provide literally
everything the disabled employee requests.” Schmidt v. Methodist Hosp. of Ind. Inc.,
89 F.3d 342, 344 (7th Cir. 1996) (citation omitted).
Mashni asked to be accommodated by being transferred away from the
Bridge School’s elementary school campus. DSOF ¶ 32; PSOF ¶¶ 37, 39; Reas.
Accomm. Form.; EOCO Resp. Ltr. He proposed two options: either he could stay in
his current job, but work only at the junior high school campus—this would allow
him to avoid Brake, whose office was located at in the elementary school, R. 42-7,
Mashni Dep. at 33:4-5—or, in the alternative, he could be reassigned to a vacant
position as a STEM Technology Specialist.18 PSOF ¶ 39.
The Board argues that neither of these proposed accommodations was
reasonable. The Court agrees, at least as to the first proposal. “Under the ADA, an
also discussed moving to a Technology Coordinator I or II position at
another Board school or at Board’s Central Office. PSOF ¶ 8; DSOF ¶ 32; EOCO Resp. Ltr.
But “the employer’s reassignment obligation is … limited to vacant positions,” and “an
employer [is not] obligated to create a new position for the disabled employee.” Stern v. St.
Anthony’s Health Ctr., 788 F.3d 276, 291 (7th Cir. 2015) (citations omitted and emphasis in
original). The Board did not have any vacant Technology Coordinator I or II positions at the
time, DSOF ¶ 38, so the court does not discuss these options.
employer is not required to modify, reduce, or reallocate the essential functions of a
job to accommodate an employee.” Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d
479, 484 (7th Cir. 2002) (citation omitted). “The employer, not a court, determines
what functions are essential, and [the court] will not second-guess that decision.”
Lloyd, 552 F.3d at 601. The Board contends that Mashni would not have been able
to complete his job duties if he worked only in the junior high school building. Def.’s
Reply Br. at 17. The record supports this: Mashni himself testified that he “was in
charge [of technology] in both [the elementary and junior high] buildings.” R. 50-2,
Mashni Dep. at 28:18-22. That meant that he “worked at both locations, meaning
there wasn’t a day where [he] wasn’t in both buildings because there needed to be
work [done] in both buildings.” R. 42-7, Mashni Dep. at 33:18-23. Mashni’s job was
to “make sure that every … piece of technology was active and working and working
to its functionality.” Id. at 36:20-22. But if Mashni could only work at the junior
high school, someone else would presumably have to manage the elementary
school’s technological needs. And “[t]o have another employee perform a position’s
essential function, and to a certain extent perform the job for the employee, is not a
reasonable accommodation.” Majors v. Gen. Elec. Co., 714 F.3d 527, 534 (7th Cir.
Moving on to the second requested accommodation: reassigning Mashni to
the vacant STEM Technology Specialist position. “[T]he ADA affirmatively compels
consideration of job reassignment to a vacant position, but also allows an employer
to consider legitimate nondiscriminatory prerequisites to jobs, such as the
requirement of prior experience … .” Hendricks-Robinson v. Excel Corp., 154 F.3d
685, 694 (7th Cir. 1998) (quoting DePaoli v. Abbott Labs., 140 F.3d 668, 675 (7th
Cir. 1998)). “It is the plaintiff’s burden to show that a vacant position exists for
which he was qualified.” Ozlowski v. Henderson, 237 F.3d 837, 841 (7th Cir. 2001)
On this issue, the record is so thin that the Court cannot assess the
reasonableness of the proposed accommodation. On the one hand, Mashni presents
only his own Declaration as evidence that he was qualified for the STEM position.
PSOF ¶ 41; Mashni Dec. ¶ 11 (“I believe I was qualified for the position because of
my extensive experience as a technology coordinator.”). But that bare averment is
just a conclusory allegation. See Ozlowski, 237 F.3d at 841. Mashni does not
actually explain how his experience specifically matched him with the STEM
position. Indeed, he does not offer evidence from the viewpoint of decision-makers,
either direct (like interrogatory answers or deposition testimony from decisionmakers) or circumstantial (like employees filling the STEM position based on
similar experience as his). Really, Mashni is just “challeng[ing] the judgment of his
superiors,” see Weihaupt v. Am. Med. Ass’n, 874 F.2d 419, 428 (7th Cir. 1989)
(citation omitted), without sufficient personal knowledge or some other evidentiary
On the other hand, the so-called “legitimate prerequisites” that the Board
claims Mashni failed to meet are also unsupported by the record. The Board claims
that the STEM position required a teaching certificate and as well three years of
teaching experience. Def.’s Br. at 11-12; DSOF ¶ 38; Def.’s Resp. PSOF ¶ 41. But
although “the employer is entitled to define the job in question, in terms of both its
essential functions and the qualifications required for it,” Webster v. Methodist
Occupational Health Ctrs., Inc., 141 F.3d 1236, 1238 (7th Cir. 1998), “[t]here is, on
this record, a jury question as to whether … [these were] genuine requirement[s] for
the position,” see Lawson v. CSX Transp., Inc., 245 F.3d 916, 929 (7th Cir. 2001).
The only entry in the record that provides any information about the STEM position
is a two-page Job Description.19 R. 42-13, DSOF at Exh. 11, STEM Job Description.
The Job Description contains no mention of a teaching certificate. Id. Nor does it
expressly require three years of teaching experience. Id. There is a bullet point
reading, “Taught at least 3 years and have a strong proficiency in the use of
educational technology” under the heading “Qualifications, Skills, Experience.” Id.
But “qualifications, skills, and experience” does not have the hard-edged
connotations of “requirements” or “prerequisites.” This distinction sharpens after
looking at the other bullet points under “Qualifications, Skills, Experience”: the list
includes amorphous qualities such as “[p]redisposition to be proactive and a selfstarter; comfort with ambiguity … ,” and “[w]illingness to be a life-long learner,” as
well as forward-looking expectations such as “[c]ollaborate with teachers to support
their use of technology … .” Id. The Board might have cleared all this up with actual
evidence from a decision-maker who fills STEM positions—rather than just the
are actually two Job Descriptions, and the parties have not explained the
difference between them. They appear substantively identical but for their headings—one is
titled “Job Description Internal” and the other “Job Description External,” presumably
because they were posted internally and externally, respectively.
written Job Description—but there is no such evidence in the record. So viewing
this evidence in the light most favorable to Mashni, Matsushita Elec., 475 U.S. at
587, there is a genuine issue as to what the STEM position actually required and
whether it constituted a reasonable accommodation for Mashni.20
Of course, the Board “is not obligated to provide an employee the
accommodation he or she requests or prefers; [it] need only provide some reasonable
accommodation.” Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998)
(citation omitted). But the Board is obligated to “engage in an interactive process
[with Mashni] to determine a reasonable accommodation.” Id. (citation omitted).
There is a genuine issue, however, as to whether the Board met that obligation.
EOCO denied Mashni’s request to be reassigned to the STEM position without
offering any alternative options. EOCO Resp. Ltr. Instead of adding to the
conversation, EOCO left the ball in Mashni’s court, informing him that he would
need to appeal its decision or secure a new position on his own. Id; cf. EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005) (“[I]f the employee has
requested an appropriate accommodation, the employer may not simply reject it
without offering other suggestions or expressing a willingness to continue
Board argues that any reassignment is unreasonable because it has no
obligation to transfer Mashni just because he wishes to avoid interaction with his
supervisor. Def.’s Reply Br. at 15 (citing Bradford v. City of Chi., 121 Fed. App’x 137, 140
(7th Cir. 2005)). But Bradford is not precedential and, in any case, it and the precedential
decision it follows, Weiler v. Household Financial Corp., 101 F.3d 519 (7th Cir. 1996), are
distinguishable. In both of those cases, the plaintiffs experienced stress as a result of
conflict with their supervisors. But Mashni does not seek reassignment because he does not
get along with Brake, he seeks reassignment in order to avoid discriminatory harassment.
The fact that the employer holds the general power to decide an employee’s supervisor, see
id. at 528, does not give the employer the freedom to forcibly subject that employee to a
hostile work environment.
discussing possible accommodations.”). Although EOCO extended Mashni’s Job
Protection Date, EOCO Resp. Ltr., the effect was retroactive and did not help move
the interactive process forward. Indeed, there is nothing in the record suggesting
that the Board made any attempt to identify the “full range of alternative positions
available [for which Mashni was qualified,] … including those that would represent
a demotion.” Cf. Hendricks-Robinson, 154 F.3d at 695. Taking all reasonable
inferences in Mashni’s favor, there is a genuine dispute as to whether a reasonable
accommodation was possible, and whether the Board then failed to engage in an
interactive process to figure out the appropriate accommodation. The claim for
failure to accommodate therefore survives summary judgment.
3. Employment Termination
Finally, Mashni attempts to establish an ADA discrimination claim for the
closing of the Bridge School position, and he relies on the prima facie method of
proof. Pl.’s Resp. Br. at 18-19. This requires a showing that “(1) he was disabled
under the ADA; (2) he was meeting his employer’s legitimate employment
expectations; (3) he suffered an adverse employment action; and (4) similarly
situated employees without a disability were treated more favorably.” Dickerson v.
Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (citations
omitted). The burden then shifts to the employer to produce a “legitimate, nondiscriminatory reason for its employment decision.” Id. “If the defendant satisfies
this requirement, the plaintiff must then prove by a preponderance of the evidence
that the defendant’s reasons are pretextual.” Id.
Mashni claims that he suffered an adverse employment action “when the
[Board] effectively terminated his employment.” Pl.’s Resp. Br. at 19. But although
he argues that he “was the only person to have his position closed,” he does not
identify any similarly-situated employees against whom he should be compared. Id.
at 19. As a result, he has failed to make a prima facie showing.
What’s more, Mashi offers nothing suggesting that the Board’s legitimate,
nondiscriminatory reason for firing him—that is, that Brake believed it would be
cheaper to have Mashni’s role performed by two hourly employees, DSOF ¶ 30—was
pretextual. Mashni attempts to rebut Brake’s assertion by denying that the Bridge
School actually saved money. Pl.’s Resp. DSOF ¶ 30. But it is not enough to argue
that the Board’s nondiscriminatory reason for firing Mashni was not sound from a
business perspective, or that it was not reasonable.21 Mashni must show that the
reason was pretextual—that is, that it could not have been Brake’s true reason for
acting as he did. See Green v. Nat’l Steel Corp., Midwest Div., 197 F.3d 894, 899 (7th
Cir. 1999) (“To survive a motion for summary judgment, [plaintiff] had to counter
the company’s affidavits with materials of evidentiary quality (such as affidavits or
depositions) that created an issue of fact as to whether the reasons offered by the
company were sincere—in ADA lingo, not pretextual … .” (cleaned up)). He has not
can Mashni support the assertion that he does make. As evidence that
replacing him with the hourly employees would not save money, Mashni points to
deposition testimony in which Brake attests that he does not recall whether Mashni was
still being paid while on disability leave in early 2015. See Pl.’s Resp. DSOF ¶ 30; R. 50-6,
Brake Dep. at 102:20-22; 107:2-108:10. But of course hiring the hourly employees would not
cut down on the budget while Mashni was still on the payroll, and this is not what the
Board alleges. The question is whether the hourly employees cost less compared to Mashni
when he was the sole person performing his duties.
done so, so summary judgment is appropriate on the claim that the termination
itself was the product of disability discrimination.
C. Rehabilitation Act
Mashni next brings a claim under the Rehabilitation Act, which protects
“qualified individual[s] with a disability” from being subjected to discrimination
“solely by reason of his or her disability … under any program or activity receiving
Federal financial assistance … .” See 29 U.S.C. § 794(a). The Seventh Circuit “looks
to the standards applied under the [ADA] to determine whether a violation of the
Rehab[ilitation] Act occurs in the employment context.” Peters v. City of Mauston,
311 F.3d 835, 842 (7th Cir. 2002) (citations omitted). The Rehabilitation Act
imposes only one added requirement, that the employer be the beneficiary of federal
financial assistance.22 The Board admits that it receives federal funding, R. 14, Ans.
¶ 11, so that requirement is met.23
this is the only difference under existing Seventh Circuit case law, the
ADA Amendments Act of 2008 may have introduced an additional divergence. The
Rehabilitation Act offers relief only to those discriminated against “solely by reason of
[their] disability,” 29 U.S.C. § 794(a); until recently, the ADA (as interpreted by the Seventh
Circuit) did the same. In Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 959 (7th Cir.
2010), the Seventh Circuit held that, because the ADA lacked language “akin to Title VII’s
mixed-motive provision,” “a plaintiff complaining of discriminatory discharge under the
ADA must show that his or her employer would not have fired him but for his actual or
perceived disability; proof of mixed motives will not suffice.” (emphasis added) (applying
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)); see also Silk v. Bd. of Trs., Moraine
Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 705-706 (7th Cir. 2015). But in 2008,
Congress amended “the language prohibiting discrimination ‘because of’ a disability … to
prohibit discrimination ‘on the basis of’ a disability.” Silk, 795 F.3d at 705 (citing 42 U.S.C.
§ 12112(a)). The Seventh Circuit has acknowledged that “it is an open question whether the
but-for standard  announced in Serwatka survived the amendment to the ADA,” but has
so far declined to provide an answer. Silk, 795 F.3d at 706. So if the Seventh Circuit holds
that the replacement of “because of” with “on the basis of” reflects a substantive rather than
a cosmetic change, the crack between employment discrimination claims under the ADA
Otherwise, because discrimination claims under the Rehabilitation Act adopt
the substantive standards of the ADA, and because Mashni characterizes his
Rehabilitation Act claim as identical to his ADA claim with only the addition of the
federal-funding component, Pl.’s Resp. Br. at 19; Compl. ¶ 34, his theories of
recovery under the Rehabilitation Act share the same fate as their ADA
counterparts. So Mashni survives summary judgment as to his hostile work
discrimination for the termination itself.
D. Intentional Infliction of Emotional Distress
Finally, the Court considers Mashni’s common-law claim for intentional
infliction of emotional distress. This requires Mashni to show (1) that Brake’s
conduct was “truly extreme and outrageous”; (2) that he “either intend[ed] that his
conduct inflict severe emotional distress, or [knew] that there [was] at least a high
probability that his conduct [would] cause severe emotional distress”; and (3) “the
conduct must in fact cause severe emotional distress.” Feltmeier v. Feltmeier, 798
and the Rehabilitation Act may widen. See Lewis v. Humboldt Acquisition Corp., 681 F.3d
312, 315 (6th Cir. 2012) (en banc) (recognizing that the ADA and Rehabilitation Act have
“two distinct causation standards”).
23The Board contends that employees can only bring discrimination claims under the
Rehabilitation Act if their specific position is federally-funded. Def.’s Br. at 14; Def.’s Reply
Br. at 19. But there is nothing in the statute that requires this. The Board cites Novak v.
Board of Trustees of Southern Illinois University, 777 F.3d 966, 974 (7th Cir. 2015) as its
only support for this argument. See Def.’s Reply Br. at 19. But Novak only restates the
statutory requirement that the “program in which [the plaintiff] was involved received
federal financial assistance.” 777 F.3d at 974. Indeed, the statute defines “program” broadly
to encompass “all the operations of … a local educational agency … any part of which is
extended Federal financial assistance.” See 29 U.S.C. § 794(b)(2)(B).
24The Seventh Circuit has assumed without deciding that hostile work environment
claims are cognizable under the Rehabilitation Act, as it has done with such claims under
the ADA. Mannie, 394 F.3d at, 982.
N.E.2d 75, 80 (Ill. 2003) (quoting McGrath v. Fahey, 533 N.E.2d 806, 810 (Ill.
The Board argues that this claim is preempted by the Illinois Worker’s
Compensation Act, 820 ILCS 305/1 et seq., which serves as the exclusive remedy to
“workers [who suffered] accidental injuries arising out of and in the course of
employment” and “prohibits common law suits by employees against the employer.”
See Meerbrey v. Marshall Field and Co., 564 N.E.2d 1222, 1225 (Ill. 1990) (citing
820 ILCS 305/5(a)). This exclusivity clause applies only to common-law claims
arising out of “accidental” injuries; suits for intentional injuries are excepted from
preemption. Meerbrey, 564 N.E.2d at 1226.
That does not mean, however, that all intentional infliction of emotional
distress claims fall outside the Act. “[I]njuries inflicted intentionally upon an
employee by a co-employee are ‘accidental’ within the meaning of the Act, since such
injuries are unexpected and unforeseeable from the injured employee’s point of
view.” Meerbrey, 564 N.E.2d at 1226. But if the tort was committed by the
“employer or its alter ego,” or if it was “commanded or expressly authorized by the
employer,” it is no longer “accidental” and is recoverable as a common-law claim. Id.
Mashni does not argue that the Board expressly authorized Brake’s
harassment, Pl.’s Resp. Br. at 19-20, so the issue is whether Brake can be
considered an “alter ego” of the Board.25 A tortfeasor can be the alter ego of his
employer if (1) he had “authority to control the policies and procedures of the
Mashni attempts to establish liability based on Cardona’s conduct as well
as that of Brake, Compl. ¶ 38; Pl.’s Resp. Br. at 19, he does not argue that Cardona was an
alter ego of the Board, Pl.’s Resp. Br. at 20.
corporation as an officer, shareholder, or [general] manager”; (2) he is a manager “in
a position of authority over other employees and the employer knew of or allowed
the injurious conduct or knew there was a substantial likelihood that injurious
conduct would occur”; or (3) he is “give[n] complete authority over the operation of
[a particular portion of the company’s] business but [is] not provide[d] with any
instructions against committing intentional torts and [is] allow[ed] … to use [his]
own judgment in resolving all of the issues that occur in that business.” Toothman
v. Hardee’s Food Sys., Inc., 710 N.E.2d 880, 886-87 (Ill. App. Ct. 1999) (citations
Mashni contends that Brake fits this bill, because he “is the highest ranking
manager at [Bridge], had control over the school’s finances … had final decisionmaking authority over hirings and firings [at the school, and] was also Mashni’s
direct supervisor, thereby asserting his dominance over Mashni.” Pl.’s Resp. Br. at
20 (citing DSOF ¶¶ 10-11, 13). But these allegations do not suffice. Mashni does not
assert that Brake was the equivalent of an officer, shareholder, or general manager
of the Board (as distinct from just Bridge School), nor does he claim that the Board
“knew of or allowed” Brake’s conduct when it was occurring. See Toothman, 710
N.E.2d at 886; see also Hunt-Golliday v. Metro. Water Reclamation Dist., 104 F.3d
1004, 1016-17 (7th Cir. 1997) (“[T]he fact that a supervisor was acting within the
scope of his or her authority does not equal authorization by the employer for the
commission of an intentional tort.”). Nor does Mashni argue that Brake enjoyed
absolute autonomy from the Board’s control, such that he had “complete authority
over the operation of” Bridge Elementary. Cf. Toothman, 710 N.E.2d at 887 (holding
that restaurant manager was alter ego of defendant restaurant chain where she
was personally responsible for all decisions made at the restaurant and did not
know, nor was she ever made aware of, the defendant’s corporate policies).
At the very most, Mashni’s assertions demonstrate that Brake was an alter
ego of the Bridge School—but the Board, not the Bridge School, is the defendant in
this case. See Gaston v. Bd. of Educ., 2017 WL 3234375, at *6 (N.D. Ill. July 31,
2017). And “district courts within this district have repeatedly held that principals
and other school administrators are not the alter egos of school boards, including
the Chicago School Board.” Id. (collecting cases). Because Brake is not an alter ego
of the Board, any tort injury that Mashni suffered at his hands is “accidental” under
the terms of the Illinois Worker’s Compensation Act, and can only be recovered
pursuant to the Act. See Meerbrey, 564 N.E.2d at 1225 (citing 820 ILCS 305/5(a)).
As a result, Mashni’s intentional infliction of emotional distress claim fails as a
matter of law.
For the reasons stated above, the Board’s motion for summary judgment, R.
41, is granted in part and denied in part. The claims for disability discrimination
under both the ADA and the Rehabilitation Act may proceed under the hostile work
environment and failure to accommodate theories of recovery, but the employmenttermination theory is rejected, as is the claim for intentional infliction of emotional
distress. Summary judgment is also granted against the retaliation claim. With this
summary judgment motion now decided, the parties must seriously engage in
settlement discussions in advance of setting a pretrial conference and trial schedule.
The status hearing of September 14, 2017 remains as scheduled.
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 1, 2017
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