Barroeta v. Astellas Pharma Global Development, Inc.

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/7/2017:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PASTORA ELENA BARROETA,

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Plaintiff,
v.
ASTELLAS PHARMA GLOBAL
DEVELOPMENT, INC.,
Defendant.

Case No. 16 C 7947

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On August 8, 2016, Plaintiff Pastora Elena Barroeta (“Barroeta”) filed the present
Complaint alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101
et seq. (“ADA”), and the Illinois Human Rights Act, 775 ILCS 5/2-101 et seq. (“IHRA”).
Barroeta specifically alleges a failure to accommodate claim and a retaliation claim against her
former employer Defendant Astellas Pharma Global Development, Inc. (“Astellas”). Before the
Court is Astellas’ motion for summary judgment brought pursuant to Federal Rule of Civil
Procedure 56(a). For the following reasons, the Court grants Astellas’ motion and dismisses this
lawsuit in its entirety.
BACKGROUND
I.

Introduction
Astellas, headquartered in Northbrook, Illinois, is a global pharmaceutical development

company that employed Barroeta as its Director of Latin American Regulatory Affairs from
October 2011 until January 2015. (R. 37, Def.’s Rule 56.1 Stmt. Facts ¶¶ 1, 2.) Astellas’ written
job description for the Director of Latin American Regulatory Affairs highlighted the

fundamental job duties of the position as developing and executing strategies, plans, and
processes for products and therapeutic areas to ensure compliance with Latin American
regulatory and business requirements. (Id. ¶ 8.) Barroeta’s specific job duties included
managing assigned projects, assessing available resources, establishing project priorities and
timelines for assigned work, handling technical topics, interpreting regulations, overseeing
submissions for new products and responses to regulators’ deficiency letters pertaining to those
submissions, and developing and leading her team. (Id. ¶ 9.)
Barroeta’s qualifications for the position of Director of Latin American Regulatory
Affairs included her Bachelors of Pharmacy Degree from the Central University of Venezuela
and her Master’s Degree in Science and Technology from London University. (Id. ¶ 3.) Prior to
working for Astellas, Barroeta worked at several prominent pharmaceutical companies in
regulatory management jobs and these jobs included employee supervision. (Id. ¶ 4.) Starting in
2012, Barroeta reported to Robert Reed (“Reed”), Astellas’ Senior Director of Regulatory
Affairs. (Id. ¶ 5.) During the relevant time period, Reed reported to Astellas’ Vice President of
Regulatory Affairs, Marcia Marconi (“Marconi”). (Id. ¶ 6.)
II.

Left Arm Injury
On September 30, 2013, Barroeta fell at the Miami International Airport while on a work

assignment and seriously injured her left arm. (Def.’s Stmt. Facts ¶ 31.) As a result, Barroeta
suffered partial paralysis to her left arm. (Pl.’s Stmt. Facts ¶ 11.) Barroeta did not return to work
until sometime in December 2013. (Id. ¶ 16; Def.’s Stmt. Facts ¶ 32.) Her physician released
her to work with the restrictions of no pushing, pulling, lifting, or gripping with the left arm.
(Def.’s Stmt. Facts ¶ 33.) After consulting with Lorraine Daly, who oversaw Barroeta’s human
resource concerns, Barroeta worked from home at least three days a week during the time period
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of December 2013 through March 2014, so she could attend occupational therapy near her home.
(Id. ¶¶ 34, 35; Pl.’s Stmt. Facts ¶ 26.)
When Barroeta returned to work after her accident, she met with her supervisor Robert
Reed to discuss her condition. (Pl.’s Stmt. Facts ¶ 22.) After her return to work, Reed told
Barroeta that “I’m always here. If you need something, let me know.” (Def.’s Stmt. Facts ¶ 37.)
Also, Reed met with Barroeta on a weekly – if not daily – basis to talk about what would assist
her in her job. (Id. ¶ 38.) Barroeta informed Reed that she was unable to type with her left hand,
although she could type with her right hand. (Pl.’s Stmt. Facts ¶ 22; Def.’s Stmt. Facts ¶ 42.)
Many of Barroeta’s tasks involved using a computer and when asked if there was anything
Astellas could do for her, Barroeta told Daly that voice-activated dictation equipment would help
with her typing. (Pl.’s Stmt. Facts ¶ 34; Def.’s Stmt. Facts ¶ 40.) Although Astellas did not
provide Barroeta with a voice-activated device, when Reed learned that Barroeta could not type
with her left hand, he talked to Daly about hiring a contractor to help with Barroeta’s typing. (R.
42, Def.’s Resp. ¶ 24.) Thereafter, Astellas hired a contractor, Julia Rodriquez, who assumed
some of Barroeta’s typing duties. (Def.’s Stmt. Facts ¶ 43.) Also, Barroeta’s supervisor assisted
in some of her duties, including working on databases and interviewing contractors. (Id. ¶ 44.)
It is undisputed that Barroeta’s left arm injury did not completely prevent her from typing or
using a computer mouse because she could type with her dominant right hand. (Id. ¶ 42.)
III.

Performance Action Plan
Based on Barroeta’s prior performance reviews, in August 2014, Reed met with Lorraine

Daly in human resources, after which Reed drafted a 90-day Performance Action Plan (“PAP”)
addressing Barroeta’s performance shortcomings. (Id. ¶¶ 26, 27, 51.) Reed delivered Barroeta’s
PAP to her during an hour-long discussion on September 30, 2014. (Id. ¶ 52.) Barroeta’s PAP
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identified multiple problem areas, including Barroeta’s lack of proactive planning and
coordination of team activities, lax supervision of staff, failure to achieve goals, and
inappropriate communications with stakeholders. (Id. ¶ 53.) Her PAP also set forth specific
tasks for Barroeta to be complete within 30 days, such as the preparation of a comprehensive
submission planning tool, re-establishing monthly meetings with certain stakeholders,
establishing weekly one-on-one meetings with staff, and holding development discussions. (Id. ¶
54.) Furthermore, the PAP required Barroeta to complete additional tasks within 60 days,
including: (1) working with the Regulatory Affairs Submissions team to prepare an archive for
Latin American submissions; (2) identifying, hiring, and on-boarding contractors for submissions
work; and (3) ensuring 100% compliance with Latin American change control assessments. (Id.
¶ 55.) The PAP set forth tasks to be completed within 90 days, including preparing lessonslearned presentation on specific recent submissions and submission templates for Mexico. (Id. ¶
56.) These tasks were primarily review functions, either in hard copy or on the computer for
which Barroeta could use a computer mouse. (Id. ¶ 57.) The plan cautioned Barroeta that failure
to improve in these areas would result in Astellas terminating her employment. (Id. ¶ 58.)
After their September 30, 2014 meeting, Reed and Barroeta met periodically to discuss
her progress on the PAP, after which Reed would document these conversations in emails to
Barroeta. (Id. ¶¶ 59, 60.) On November 14, 2014, the 45-day mark of her PAP, Barroeta met
with Reed and Marconi to discuss her progress. (Id. ¶ 61.) In this meeting, Marconi and Reed
explained to Barroeta that she was not showing the requisite progress and that her job was in
serious jeopardy. (Id. ¶ 62.) Also during this meeting, Barroeta stated that she was
overwhelmed by the work and lack of resources, but did not request any accommodation for her
injured left arm. (Id. ¶ 63.) Instead, Barroeta believed that the Latin American Regulatory
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Affairs Department was understaffed and that Astellas should hire more employees for the
department. (Id. ¶ 21.) In fact, it is undisputed that Barroeta never asked Reed for a specific
accommodation or change that might have helped her perform her job, except for hiring more
staff. (Id. ¶ 39.)
It is undisputed that during this time period, Barroeta shifted her focus away from
completing the PAP tasks to work on other matters that she considered more important. (Id. ¶
64.) On January 13, 2015, Barroeta informed Reed that she had given other work matters a
higher priority than the specific tasks highlighted by her PAP. (Id. ¶ 66.) The next day, on
January 14, 2015, Reed sent Marconi a memorandum indicating that Barroeta had not completed
ten of thirteen action items on her PAP. (Id. ¶ 68.) More specifically, Barroeta had failed to
prepare a comprehensive submissions planning tool, re-establish monthly meetings with
stakeholders, ensure 100% compliance with Latin American change control assessments, and
prepare a submissions template for Mexico. (Id. ¶ 69.) Sometime in mid-January 2015, Reed
told Barroeta to either resign or “we are going to terminate you.” (Id. ¶ 71.) On January 16,
2015, Plaintiff submitted her written resignation letter to Reed and Marconi, which stated the
following:
Unfortunately, my health situation has deteriorated as a result of the fall I
sustained on Sep. 30, 2013 with resultant left shoulder fracture, dislocation, nerve
damage and development of Complex Regional Pain Syndrome (CRPS) with
intense pain that has gotten worse rather than better over time. This situation
requires my full attention which leaves me no time to fulfill my duties as currently
required by the company.
Thank you for the opportunities that you have provided me during the last three
years. I have enjoyed working for Astellas and appreciate the support provided
me during my tenure with the company.
(Id. ¶¶ 72, 74.)

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LEGAL STANDARD
Summary judgment is appropriate “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 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, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment
motions, “facts must be viewed in the light most favorable to the nonmoving party only if there
is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). “To survive summary
judgment, the nonmoving party must show evidence sufficient to establish every element that is
essential to its claim and for which it will bear the burden of proof at trial.” Diedrich v. Ocwen
Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016) (citations omitted).
ANALYSIS1
I.

Failure to Accommodate Claim – Counts I and III
In Counts I and III of her Complaint, Barroeta alleges that Astellas failed to reasonably

accommodate her disability under the ADA and IHRA. To establish a failure to accommodate
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Plaintiff brings her failure to accommodate claims in Counts I and III and her retaliation claims
in Counts II and IV pursuant to the ADA and IHRA. In evaluating IHRA claims, courts look to
the standards applicable in the analogous federal statutes. See Teruggi v. CIT Grp./Capital Fin.,
Inc., 709 F.3d 654, 659 (7th Cir. 2013).
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claim, Barroeta must present evidence raising a triable issue of fact that: (1) she is a qualified
individual with a disability; (2) Astellas was aware of her disability; and (3) Astellas failed to
reasonably accommodate her disability. See EEOC v. AutoZone, Inc., 809 F.3d 916, 919 (7th
Cir. 2016). For purposes of this motion, the Court assumes that Barroeta is a qualified individual
with a disability and that Astellas was aware of her disability and physical limitations. The
Court thus focuses on whether Astellas failed to reasonably accommodate Barroeta’s disability.
Here, Barroeta argues that Astellas failed to engage in the interactive process to
determine whether a reasonable accommodation existed that would allow her to perform the
essential functions of her job. See Brown v. Milwaukee Bd. of Sch. Directors, 855 F.3d 818, 821
(7th Cir. 2017) (“Identifying reasonable accommodations for a disabled employee requires both
employer and employee to engage in a flexible, interactive process.”). Barroeta’s main argument
is that Astellas failed to accommodate her left arm injury because it did not provide her with a
voice-activated device – although she admits that a voice-activated device would not help during
meetings when other people were talking and that her job entailed multiple staff meetings.
(Def.’s Stmt. Facts ¶¶ 12, 41.) Instead of providing the voice-activated equipment, Astellas hired
a contractor, who assumed some Barroeta’s typing duties. Also, her direct manager, who
regularly communicated with Barroeta about her needs, assumed some of her other duties, such
as conducting searches on databases and interviewing contractors. Further, the parties do not
dispute that Barroeta’s left arm injury did not prevent her from typing or using the mouse on her
computer because she could type with her dominant right hand to complete certain tasks.
Despite Barroeta’s arguments to the contrary, it is well-settled that “the ADA does not
entitle a disabled employee to the accommodation of his choice,” but “[r]ather, the law entitles
him to a reasonable accommodation in view of his limitations and his employer’s needs.”
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Swanson v. Village of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015) (emphasis in original); see
also Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000) (“It is well-established that
an employer is obligated to provide a qualified individual with a reasonable accommodation, not
the accommodation he would prefer.”). That Astellas did not provide Barroeta with a voiceactivated device is not dispositive, especially in light of the other accommodations Astellas
provided, as discussed immediately above. Also, Barroeta does not explain why these
accommodations were unreasonable nor does she mention the other accommodations Astellas
provided, such as allowing Barroeta to take over two months of leave, after which Barroeta
returned to work part-time working from home to accommodate her occupational therapy needs.
Barroeta further argues that her human resources representative, Lorraine Daly, did not
have discussions with her about her progress. That Daly did not sufficiently communicate with
Barroeta fails to take into account Reed’s regular, sometimes daily, interactions with Barroeta
about her injury and work needs. Not only did Reed tell Barroeta that “I’m always here. If you
need something, let me know,” it is undisputed that Barroeta never asked Reed for a specific
accommodation or change that might have helped her perform her job, except for hiring more
people because she believed that her department was understaffed. Barroeta, however, fails to
argue or substantiate with legal authority how hiring more staff would have been a reasonable
accommodation under the circumstances. See M.G. Skinner & Assocs. Ins. Agency, Inc. v.
Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir. 2017) (“Perfunctory and undeveloped
arguments are waived, as are arguments unsupported by legal authority.”).
Ultimately, “[i]t is the employer’s prerogative to choose a reasonable accommodation; an
employer is not required to provide the particular accommodation that an employee requests.”
Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000). Based on the undisputed
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evidence in the record, Barroeta has failed to show that a reasonable factfinder could conclude
that Astellas failed to accommodate her injury by not providing a voice-activated device. See
Hoppe v. Lewis Univ., 692 F.3d 833, 840 (7th Cir. 2012) (“An employer satisfies its duty to
reasonably accommodate an employee with a disability when the employer does what is
necessary to allow the employee to work in reasonable comfort.”). Also, there is no evidence in
the record that Astellas looked the other way or “sat on its hands,” instead of engaging Barroeta
in conversations about her injury, especially because she had consistent, sometimes daily,
interactions with her direct manager about her job needs, and thus she has not demonstrated that
Astellas terminated the interactive process in the first instance. See Lawler, 837 F.3d at 786-87.
The Court thus grants Astellas’ summary judgment motion as to Counts I and III.
II.

Retaliation Claim – Counts II and IV
In Counts II and IV, Barroeta maintains that Astellas terminated her employment in

retaliation for requesting an accommodation in relation to her left arm injury. The ADA
“protects employees who suffer retaliation after seeking an accommodation by their employer, or
filing a complaint of discrimination on account of a disability[.]” Hirmiz v. New Harrison Hotel
Corp., 865 F.3d 475, 476 (7th Cir. 2017); see also 42 U.S.C. § 12203(a). To survive summary
judgment on her retaliation claim, Barroeta must set forth evidence raising a genuine issue of
material fact that (1) she engaged in a protected activity; (2) she suffered an adverse action; and
(3) a causal link between the protected activity and the adverse action. See Lauth v. Covance,
Inc., 863 F.3d 708, 716 (7th Cir. 2017).
The parties do not dispute that Barroeta engaged in a protected activity and that she
suffered an adverse action because it is undisputed that if Barroeta had not resigned, Astellas
would have discharged her. Accordingly, the Court looks to the whether a causal link exists,
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namely, whether there is evidence in which a jury could infer retaliation. See id. (courts “no
longer recognize a distinction between direct or indirect evidence, and instead consider all of the
record evidence to determine whether a causal link exists.”); Ortiz v. Werner Enterprises, Inc.,
834 F.3d 760, 765 (7th Cir. 2016) (the legal standard “is simply whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or
other proscribed factor caused the discharge or other adverse employment action.”). A plaintiff
can demonstrate a causal connection by showing that the defendant would not have taken the
adverse action, but for plaintiff’s protected activity. See Baines v. Walgreen Co., 863 F.3d 656,
661 (7th Cir. 2017). Suspicious timing can also provide circumstantial evidence of retaliation.
See Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1021 (7th Cir. 2016) (“Although suspicious
timing alone is rarely enough to create an inference of retaliatory motive, it can sometimes raise
an inference of a causal connection, especially in combination with other evidence.”).
Viewing the evidence and all reasonable inferences in Barroeta’s favor, she has not
presented any evidence suggesting that Astellas would not have terminated her employment had
she not seriously injured her left arm. Instead, undisputed evidence indicates that during
Barroeta’s PAP period, she shifted her focus away from completing the specific tasks outlined so
she could work on other matters that she considered more important. Further, it is undisputed
that she told Reed that she had given other work matters a higher priority than the specific tasks
in her PAP. The parties do not dispute that Barroeta had not completed ten of thirteen action
items on her PAP, including failing to prepare a comprehensive submissions planning tool, reestablish monthly meetings with stakeholders, ensure 100% compliance with Latin American
change control assessments, and prepare a submissions template for Mexico. There is also
undisputed evidence that Barroeta’s job performance was deficient prior to her injury, including
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her 2012 performance appraisal where Reed criticized her for not being sufficiently engaged
with business partners, affiliates, and staff, and that Barroeta needed to consider available
resources “to insure that she can deliver to expectations.” (Def.’s Stmt. Facts ¶¶ 26, 27.)
Barroeta next argues that because Reed delivered the PAP to her exactly one year to the
day after she fell at the Miami International Airport, she has established a causal connection
presumably due to the timing of these events. The timing of the PAP is not suggestive of
retaliatory motive because one year is a significant time gap in the context of her tenure with
Astellas. See Nicholson v. City of Peoria, Illinois, 860 F.3d 520, 524 (7th Cir. 2017) (“The
passage of more than a year between protected activity and the adverse employment action is
enough to “substantially weaken” a retaliation claim.”). Moreover, suspicious timing, alone, is
rarely sufficient to infer a causal link between the protected activity and the adverse action. See
Mintz v. Caterpillar Inc., 788 F.3d 673, 681 (7th Cir. 2015). Without more, Barroeta has only
offered speculation as to Astellas’ alleged retaliatory motive. See Lauth, 863 F.3d at 717
(“speculation is insufficient to raise a question of fact”).
Because Barroeta has failed to present evidence raising a triable issue of fact that there is
a causal connection between the adverse action and her injury, the Court grants Astellas’
summary judgment motion as to Counts II and IV of the Complaint.

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CONCLUSION
For these reasons, the Court grants Defendant’s motion for summary judgment in its
entirety and dismisses this lawsuit.
Dated: September 7, 2017
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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