v. New Horizon Center for the Developmentally Disabled, Inc.
Filing
93
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 6/3/2020. Mailed notice(air, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANNIE PEARL HILLIARD,
Plaintiff,
v.
NEW HORIZON CENTER FOR THE
DEVELOPMENTALLY DISABLED,
INC.,
Defendant.
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No. 16 C 6374
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Annie Pearl Hilliard was terminated from her position as a special education
teacher at New Horizon Center for the Developmentally Disabled on July 3, 2012, when she was
81 years old. Ms. Hilliard alleges that she was subjected to a campaign of harassment leading up
to her termination and brings claims of age and disability discrimination and intentional infliction
of emotional distress. New Horizon disputes Ms. Hilliard’s claims and attributes her termination
to voluntary abandonment of her post: after a student was injured in her classroom, Ms. Hilliard
was briefly suspended without pay and was placed on a retraining program, from which she took
an extended period of leave for major depressive disorder. New Horizon has moved for summary
judgment. For the reasons stated below, the defendant’s motion for summary judgment is granted.
BACKGROUND
Plaintiff Annie Pearl Hilliard was hired as a special education teacher at New Horizon in
1973, when she was 42 years old. Ms. Hilliard oversaw a classroom of five students with
disabilities and four other staff members who worked with the students on a one-to-one basis.
DSOF ¶ 34. Beginning in or around 2011, Ms. Hilliard avers, New Horizon began purging older
staff members. She alleges, and the defendant disputes, that she was “constantly hounded” about
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when she was going to retire. Pl.’s Resp. DSOF ¶ 7. In her deposition testimony, however, Ms.
Hilliard recalls New Horizon administration specifically asking about her retirement only once.
See Hilliard Dep. 13:11–14:12, ECF No. 84-2. In addition, New Horizon Principal Patricia Palmer
asked all teachers each year, including Ms. Hilliard, whether they intended to return for the next
school year. Pl.’s Resp. DSOF ¶ 8. Ms. Hilliard also alleges that she was “chastised and rebuffed”
for taking paid time off before a school holiday on January 17, 2012 and “even then was denied
pay for the holiday,” though New Horizon’s payroll records indicate that she was in fact paid for
that time off. Id. ¶ 59.
New Horizon maintained a policy that two adults were required to be in the classroom with
students at all times. If a teacher or staff member had to leave the room, they were expected to call
another teacher or the principal to substitute in. DSOF ¶ 9. Teachers were expected to stagger their
staff’s lunch breaks to support this policy. Id. ¶¶ 11, 25. The parties dispute how rigorously the
policy was enforced prior to the incident in Ms. Hilliard’s classroom. See Pl.’s Resp. DSOF ¶ 9.
Ms. Hilliard correctly asserts that the two-adult guideline states that every student “should, when
feasible, always be in the care of at least two staff members,” id., but the policy uses more
mandatory language with respect to classrooms, stating that there “should always be more than
one employee in a classroom at all times. In the event an employee must leave the room for a
specific reason, the employee must request help from another classroom,” Abuse Prevention
Policy, Ex. 28 at 5, ECF No. 79-7. While the two-adult guideline was not part of the New Horizon
employee handbook,1 it was a written policy and the New Horizon teachers received training on
the policy at staff meetings on April 29, 2011 and November 1, 2011. Pl.’s Resp. DSOF ¶¶ 39-40.
1
While the Abuse Prevention Policy was not included in the employee handbook, the
handbook contains “a list of violations that may warrant discipline or discharge, the first of which
2
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On January 18, 2012, Ms. Hilliard left her classroom for lunch, leaving one staff member
with five students. DSOF ¶ 34. Ms. Hilliard did not request staffing assistance prior to leaving. Id.
While Ms. Hilliard was out of the room, a student fell from a “mat table”2 on to a tile and concrete
floor, driving a tooth through her gums, shattering several teeth, and opening an oral wound that
bled profusely. Id. ¶ 35. Ms. Hilliard felt that she was blamed for the student’s accident. In the
period following the incident, Ms. Hilliard alleges, Principal Palmer “began to criticize Ms.
Annie’s job performance, her staff supervision and accused Ms. Annie of keeping a filthy
classroom.” Pl.’s Am. Statement Add’l Facts ¶ 18, ECF No. 83. Principal Palmer “suddenly began
visiting the classroom on a daily basis” and frequently calling Ms. Hilliard to the office. Id. ¶¶ 1718. Two other staff members “testified that on some of the occasions when Ms. Annie would return
from the office she was visibly upset and teary eyed.” Id. ¶ 18. On January 26, New Horizon
administration began an investigation into the circumstances surrounding the student’s injury, and
the staff member who was present during the accident was terminated on January 27. Pl.’s Resp.
DSOF ¶¶ 36-37. Ms. Hilliard was suspended without pay from January 30 to February 3, 2012. Id.
¶ 41. While Ms. Hilliard was on leave, her classroom was cleaned and some of her personal
belongings were allegedly removed and discarded. Pl.’s Am. Statement Add’l Facts ¶ 22, ECF No.
83.
When she returned from her suspension, Ms. Hilliard was removed from the classroom and
began a period of retraining that included computer training on Illinois Alternate Assessment test
administration, speech-language pathology training, and writing a report on the CCTV recording
is ‘Neglect of duty that threatens the well-being or safety of an adult, student, employee or NHC.’”
Pl.’s Resp. DSOF ¶¶ 27-28.
2
The record does not make clear what a “mat table” is, but the Court infers that it is a
somewhat elevated enclosed platform with a padded bottom surface that enables a caretaker to
have easier access to the child than if the enclosure were at floor level.
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of the student’s accident. Pl.’s Resp. DSOF ¶¶ 42, 46-50. Ms. Hilliard asserts that the retraining
program was “administered in a manner designed to humiliate her and make returning to work
unbearable for her.” Compl. ¶ 30. Ms. Hilliard also alleges that other staff members witnessed her
being berated and criticized by New Horizon administration; when interviewed, no staff member
reported witnessing such conduct.3 Pl.’s Resp. DSOF ¶¶ 52-58.
On February 9, 2012, Ms. Hilliard became ill and left the school; she did not return, and
her retraining was never completed. Id. ¶¶ 51, 60. Her doctor sent New Horizon a letter on
February 14 requesting three months of leave, asserting that being blamed for the accident had
precipitated Ms. Hilliard’s major depressive disorder. PSOF ¶ 26. At that time, Ms. Hilliard’s
doctor said, she could not “perform any job functions.” Pl.’s Resp. DSOF ¶ 61. Ms. Hilliard was
approved for FMLA leave on March 9, 2012. Id. After twelve weeks of FMLA leave had been
exhausted, Ms. Hilliard’s doctor requested another three months of leave. Id. ¶ 64. New Horizon
granted Ms. Hilliard an additional seven weeks of leave. See Mem. Supp. MSJ at 14, ECF No. 793. On July 3, 2012, however, Principal Palmer wrote Ms. Hilliard a letter stating that her “request
for additional leave had to be declined and advising Plaintiff that [New Horizon] could no longer
hold her job open due to the approaching school year.” Pl.’s Resp. DSOF ¶ 67. Ms. Hilliard does
not attribute New Horizon’s refusal to extend her leave to her age (rather to her medical condition).
Id. ¶ 68. New Horizon terminated Ms. Hilliard’s employment in the July 3, 2012 letter on the
grounds that she had voluntarily abandoned her position. Compl. ¶¶ 38-39.
3
While staff member Rosalind Eubanks testified that she saw Ms. Hilliard leaving the
office with tears in her eyes, saying that she was being blamed for the student’s accident, Ms.
Eubanks did not actually witness any interaction between Ms. Hilliard and New Horizon
administration. Eubanks Dep. 48:13–49:9, ECF No. 83-1.
4
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Ms. Hilliard filed a charge of discrimination, Charge No. 2013-CA-1089, with the Illinois
Department of Human Rights in December 2012. The charge was dismissed for lack of substantial
evidence on December 11, 2013. On April 28, 2014, Ms. Hilliard filed a request for review with
the Illinois Human Rights Commission; the matter is still pending and undecided. On April 13,
2016, Ms. Hilliard requested a right-to-sue letter from the EEOC, which she received on April 19,
2016. Pl.’s Resp. DSOF ¶ 4. She brought this suit on June 20, 2016, asserting claims of age
discrimination, disability discrimination, and intentional infliction of emotional distress. New
Horizon has moved for summary judgment on the claims.
DISCUSSION
Summary judgment is appropriate when “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 dispute as to any 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). The moving party has the initial burden of establishing that there is no genuine
dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party meets this burden, “[t]he nonmoving party must point to specific facts showing that there is
a genuine issue for trial.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). Factual disputes
do “not preclude summary judgment when the dispute does not involve a material fact.” Burton v.
Downey, 805 F.3d 776, 783 (7th Cir. 2015). When considering the summary judgment materials,
the Court must “construe all facts and draw all reasonable inferences in favor of the nonmoving
party.” Van den Bosch v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011).
To state a prima facie age discrimination claim under the ADEA, a plaintiff must show that
“(1) she is a member of a protected class; (2) her performance met her employer’s legitimate
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expectations; (3) despite this performance, she was subjected to an adverse employment action;
and (4) her employer treated similarly situated employees outside of the protected class more
favorably.” Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir. 2007). The parties agree that
Ms. Hilliard is a member of a protected class because she is over age 40 and that her suspension
and termination constitute adverse employment action. See Mem. Supp. MSJ at 9-11, ECF No. 793. The parties dispute whether Ms. Hilliard met New Horizon’s legitimate expectations and
whether similarly situated employees were treated more favorably. Ms. Hilliard points to her
glowing performance reviews, see Resp. MSJ at 10, ECF No. 82, while New Horizon highlights
testimony from another staff member asserting that Ms. Hilliard loved her students but was passive
and did not interact with them in the classroom, did not keep lesson plans, and spent much of the
school day sitting in her chair. Reply MSJ at 4, ECF No. 84. This disagreement is not material,
however, because the parties agree that Ms. Hilliard’s suspension was not based on general
dissatisfaction with Ms. Hilliard’s performance but by her failure to meet the employer’s legitimate
expectation of ensuring proper staffing in accordance with the two-adult policy.
In any event, Ms. Hilliard cannot show that similarly situated employees outside the
protected class were treated more favorably. The paraprofessional aide who was present during
the student’s accident was terminated while Ms. Hilliard was suspended and assigned to retraining.
Pl.’s Resp. DSOF ¶ 37. A teacher who was under age 40 was also terminated for voluntary job
abandonment in June 2012. See IDHR Charge at 15, ECF No. 79-5. Another New Horizon teacher,
Pamela Koester, had a student fall from a mat table and sustain an injury in her classroom several
years prior but was not suspended or required to complete a retraining program. Pl.’s Am.
Statement Add’l Facts ¶ 20, ECF No. 83. That incident, however, occurred under adequate staffing
conditions. See Mem. Supp. MSJ at 11, ECF No. 79-3 (“Pamela Koester is not similarly situated
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to Hilliard because she did not mismanage her staff as Plaintiff did, violate work rules, and did not
leave the classroom understaffed on a personal break without securing assistance.”). “To reveal
discriminatory discipline, a plaintiff must produce evidence that he engaged ‘in identical or
comparable misconduct’ but received harsher punishment.” Miller v. Saul, No. 19-2954, 2020 WL
2316062, at *5 (7th Cir. May 11, 2020) (citing Rozumalski v. W.F. Baird & Assocs., 937 F.3d 919,
927 (7th Cir. 2019)). Here, Ms. Hilliard has not shown that the accident in her classroom was
comparable to that in Ms. Koester’s classroom because of the failure to adhere to the two-adult
guideline. Ms. Hilliard’s direct evidence of age discrimination is similarly unavailing: despite her
reference to being “constantly hounded” about when she would retire, in her deposition testimony
she could recall only one such instance. Otherwise, Ms. Hilliard was subject to a common
requirement, along with all other teachers, to report whether she planned to return for each
subsequent school year. These contentions are insufficient to support a jury finding of age
discrimination.
Ms. Hilliard also claims that New Horizon discriminated against her on the basis of her
disability. To establish a prima facie claim of disability discrimination under the ADA, Ms.
Hilliard would have to show that “(1) she is disabled within the meaning of the ADA, (2) she is
qualified to perform the essential functions of her job either with or without reasonable
accommodation, and (3) she has suffered from an adverse employment decision because of her
disability.” Dvorak v. Mostardi Platt Assoc., Inc., 289 F.3d 479, 483 (7th Cir. 2002). While the
parties do not dispute that Ms. Hilliard was disabled within the meaning of the ADA, New Horizon
asserts that Ms. Hilliard was not a qualified individual with a disability and that her termination
was not “because of” her disability. The Court agrees. Ms. Hilliard’s doctor indicated in a letter
requesting leave that Ms. Hilliard could not “perform any job functions.” Pl.’s Resp. DSOF ¶ 61.
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Over the course of her leave, Ms. Hilliard’s condition improved only “somewhat,” and she was
never medically cleared to return to work. See Mem. Supp. MSJ at 2, ECF No. 79-3. “An inability
to do the job’s essential tasks means that one is not ‘qualified’; it does not mean that the employer
must excuse the inability.” Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003); see also
Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999) (“The rather common-sense idea is
that if one is not able to be at work, one cannot be a qualified individual.”). Because she was unable
to perform her essential job functions with or without a reasonable accommodation, Ms. Hilliard
was not a qualified individual with a disability entitled to ADA protection.
Similarly, Ms. Hilliard was not entitled to an extended period of leave as a reasonable
accommodation of her disability:
The ADA is an antidiscrimination statute, not a medical-leave entitlement. The Act
forbids discrimination against a “qualified individual on the basis of disability.” A
“qualified individual” with a disability is a person who, “with or without reasonable
accommodation, can perform the essential functions of the employment position.”
So defined, the term “reasonable accommodation” is expressly limited to those
measures that will enable the employee to work. An employee who needs longterm medical leave cannot work and thus is not a “qualified individual” under the
ADA.
Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017) (citations omitted).
Rather than being terminated because of her disability, the record shows that Ms. Hilliard was
terminated because she took an extended period of medical leave and was unable to commit to
returning for the next school year. “Inability to work for a multi-month period removes a person
from the class protected by the ADA.” Byrne, 328 F.3d at 381. New Horizon was required to fill
her position and did not act in a discriminatory fashion when it terminated Ms. Hilliard.4
4
To the extent that Ms. Hilliard alleges that New Horizon failed to engage in the interactive
process required by the ADA, failure to engage in the interactive process is not an independent
basis for liability. See Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000). That
failure “is actionable only if it prevents identification of an appropriate accommodation for a
qualified individual.” Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013). Here,
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As to Ms. Hilliard’s claim of intentional infliction of emotional distress, New Horizon
asserts that the claim is preempted by the Illinois Human Rights Act. As Ms. Hilliard points out,
the Court addressed that contention at the motion to dismiss stage and ruled that the claim was not
preempted because it was based, at least in part, on conduct separate from Ms. Hilliard’s
discrimination complaints. Mem. Op. & Order at 10, ECF No. 28 (“This foundation for Hilliard’s
IIED claim, as pled, implicates duties that are distinct from those imposed on New Horizon by the
IHRA.”).5 Alternatively, New Horizon suggests that the claim is time-barred. IIED claims have a
two-year statute of limitations from “the last date of injury or when the tortious act ceases”; here,
Ms. Hilliard last had contact with New Horizon on July 3, 2012 and filed this suit in June 2016.
Mem. Supp. MSJ at 6, ECF No. 79-3. Ms. Hilliard argues that because her IIED claim relates back
to her IDHR charge, her claim is not time-barred. While the facts that comprise Ms. Hilliard’s
IIED claim were included in her IDHR charge, such that New Horizon was likely on notice of her
contentions, the Illinois Human Rights Commission has not ruled on Ms. Hilliard’s request for
review, and an EEOC right-to-sue letter is not a substitute for a final order by the IDHR in
exhausting administrative remedies. See, e.g., Jimenez v. Thompson Steel Co., Inc., 264 F. Supp.
2d 693, 695 (N.D. Ill. 2003).
as noted, Ms. Hilliard sought only extended leave and was not a qualified individual during that
period. Moreover, Ms. Hilliard’s doctor reported that New Horizon was in such frequent contact
with Ms. Hilliard during her leave that “the repeated phone calls from NHC was interpreted as
harassment by Ms. Hilliard.” Pl.’s Am. Statement Add’l Facts ¶ 30, ECF No. 83.
5
New Horizon also suggests that Ms. Hilliard’s IIED claim is barred by the Illinois
Workers’ Compensation Act, 820 Ill. Comp. Stat. 305 et seq. There is an intentional tort exception
to workers’ compensation exclusivity when the employee can show that the employer had specific
intent to injure the employee. See, e.g., Copass v. Illinois Power Co., 211 Ill. App. 3d 205, 213,
569 N.E.2d 1211, 1215-16 (Ill. App. Ct. 1991). Because Ms. Hilliard does not present facts
demonstrating extreme and outrageous conduct, however, the Court will not consider this line of
reasoning further.
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Even if her claim were timely, however, Ms. Hilliard has not adduced affirmative evidence
of “extreme and outrageous conduct” sufficient to survive summary judgment. Specifically, she
alleges that she was “chastised and rebuffed” for taking paid time off before a school holiday, that
Principal Palmer harassed her after the student’s accident, “nitpicking Ms. Hilliard’s performance,
classroom duties, supervision of staff and even accus[ing] her of being personally filthy and
keeping a filthy classroom,” that her personal belongings were discarded while she was on
suspension, and that her retraining program was designed to humiliate her. Ms. Hilliard’s affidavit
is the sole support for many of these allegations, but even accepting them as true, they do not
approach the extreme level of antagonistic or humiliating conduct necessary to support a claim for
intentional infliction of emotional distress. Courts “have been hesitant to find intentional infliction
of emotional distress in the workplace” and do so only when the employer “clearly abuses the
power it holds over an employee in a manner far more severe than the typical disagreements or
job-related stress caused by the average work environment.” Naeem v. McKesson Drug Co., 444
F.3d 593, 605 (7th Cir. 2006). While the Court does not doubt that the accident in Ms. Hilliard’s
classroom and its aftermath were upsetting, in “the workplace setting . . . harshly criticizing or
insulting an employee is not enough to constitute extreme and outrageous conduct.” McKay v.
Town and Country Cadillac, Inc., 991 F. Supp. 966, 972 (N.D. Ill. 1997) (citing Harriston v.
Chicago Tribune Co., 992 F.2d 697, 702-03 (7th Cir. 1993)). Most situations in which an employee
is suspended or terminated result in personal embarrassment and emotional distress for the
employee; were that sufficient to support a tort claim, virtually every terminated employee would
be able to sue their employer even when the termination was justified and nondiscriminatory. That
is not the law. Because Ms. Hilliard has not adduced affirmative evidence of extreme and
outrageous conduct sufficient to support her claim for intentional infliction of emotional distress,
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nor has she shown evidence sufficient to create a jury question with respect to age and disability
discrimination, summary judgment must be granted for New Horizon.
* * * * *
The undisputed facts in this case show that Ms. Hilliard violated a safety guideline designed
to protect children in her care. Rather than terminate her for that violation, her long-time employer
imposed a brief suspension and a requirement for additional training and permitted Ms. Hilliard to
continue her employment. When Ms. Hilliard was medically unable to complete that training, her
employer did not terminate her; rather, it gave her extended medical leave to address her condition.
Only when Ms. Hilliard was unable to return to work following that extended leave did her
employer terminate her employment. These facts do not give rise to any claim by Ms. Hilliard
against New Horizon. Accordingly, the defendant’s motion for summary judgment is granted.
Final Judgment will be entered for New Horizon.
John J. Tharp, Jr.
United States District Judge
Date: June 3, 2020
11
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