King v. Luthern Child and Family Services

Filing 125

MEMORANDUM Opinion and Order. The court considered the arguments in Mr. King's motion to dismiss and compel 113 as a reply brief, and declines to strike LCFS's response brief or compel additional discovery. Mr. King has failed to show th at there is a genuine issue for trial on his disability discrimination and failure-to-accommodate claims brought under the ADA, or that he is entitled to judgment in his own favor as a matter of law. Accordingly, Mr. King's motion for summary judgment 104 is denied and LCFS's motion for summary judgment 105 is granted. Civil case terminated. [For further details see order.] Signed by the Honorable Rebecca R. Pallmeyer on 9/10/2020. Notice mailed by judge's staff (ntf, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID KING,
Plaintiff,
v.
LUTHERAN CHILD AND FAMILY
SERVICES OF ILLINOIS, an Illinois
not-for-profit corporation,
Defendant.

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No. 18 C 309
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
From July 2015 until the following April, Plaintiff David King worked for Defendant Lutheran
Child and Family Services of Illinois (“LCFS”) as a Child Care Worker in one of LCFS’s residential
centers for children and adolescents with emotional and behavioral difficulties. On April 4, 2016,
during Plaintiff’s overnight shift at the residential center, a youth in the unit Plaintiff was monitoring
was allegedly sexually assaulted. Believing that Plaintiff had fallen asleep when the incident
occurred, LCFS terminated Plaintiff’s employment that same day. Plaintiff says that he has
schizoaffective disorder, which causes symptoms including delusions, hallucinations, depressed
episodes, and manic periods, and which he manages with medication that causes drowsiness.
(2d Am. Compl. [22] at 2; Pl.’s Mem. in Supp. Mot. for Summ. J. (“Pl.’s MSJ”) [104] at 2.) In this
court, Plaintiff claims that LCFS terminated his employment due to his disability and that LCFS
failed to accommodate his schizoaffective disorder in violation of the Americans with Disabilities
Act (“ADA”).
Both parties now move for summary judgment on Plaintiff’s ADA claims [104, 105].
Plaintiff has also moved to “dismiss” Defendant’s response to his motion for summary judgment
and has moved to compel further discovery [113]. For the reasons stated below, Mr. King’s
motions for summary judgment [104] and to dismiss and compel [113] are denied, and LCFS’s
motion for summary judgment [105] is granted.

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BACKGROUND
I.

Local Rule 56.1
Consistent with the court’s Local Rules, Defendant LCFS filed a Local Rule 56.1(a)(3)

statement of undisputed facts [107], citing supporting evidentiary material in the record, together
with its motion for summary judgment. See N.D. Ill. L.R. 56.1(a)(3). Also as required, Defendant
provided Plaintiff with the Local Rule 56.2 Notice [109], explaining in detail the requirements of
Local Rule 56.1 and warning Mr. King that noncompliance with the relevant rules could lead to
the admission of LCFS’s version of the facts. Litigants proceeding pro se are entitled to lenient
standards, but the court does require compliance with procedural rules. Cady v. Sheahan, 467
F.3d 1057, 1061 (7th Cir. 2006); Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104,
1108 (7th Cir. 2004); McNeil v. United States, 508 U.S. 106, 113 (1993); Coleman v. Goodwill
Indus. of Se. Wis., Inc., 423 F. App’x 642, 643 (7th Cir. 2011) (“Though courts are solicitous of
pro se litigants, they may nonetheless require strict compliance with local rules.”).
Despite the warning, Plaintiff failed to respond to Defendant’s statement of facts in the
manner required by Local Rule 56.1. Rather, he responded to some of LCFS’s factual contentions
and made other factual assertions in his response brief [111]. See Perez v. Town of Cicero, No.
06 C 4981, 2011 WL 4626034, at *2 (N.D. Ill. Sept. 30, 2011) (“[F]acts asserted in a brief but not
presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment
motion.”). Plaintiff subsequently filed a separate motion disputing Defendant’s assertion that he
failed to follow the local rules. (Mot. to Dismiss & Compel [113] at 1–2.) Neither that motion nor
Plaintiff’s own response to Defendant’s motion is in a format that complies with Local Rule 56.1
(that is, short numbered paragraphs with references to materials in the record). N.D. ILL. L.R.
56.1(b)(3). And while Plaintiff’s motion for summary judgment [104] states that it contains a
statement of facts (see Pl.’s MSJ at 1), the court finds no such statement of facts included with
his motion or the numerous attached exhibits.

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Facts set forth in Defendant’s Local Rule 56.1(a)(3) statements to which Plaintiff did not
effectively respond are deemed admitted to the extent they are supported by evidence in the
record. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880, 884 (7th Cir. 2012). The court has
considered the factual assertions Plaintiff makes in his responses, but only to the extent he has
pointed to evidence in the record or could properly testify himself about the matters asserted.
II.

Material Facts
King began working for LCFS as a Child Care Worker at its Lutherbrook Child and

Adolescent Center (“Lutherbrook”) in July 2015. (Def.’s Local Rule 56.1 Statement of Facts
(“Def.’s SOF”) [107] ¶¶ 3–4, 21.) Lutherbrook is a residential care and treatment center for
children and adolescents with emotional and behavioral difficulties. (Id. ¶ 3.) The job description
for the Child Care Worker position stated that King would need to provide “direct care, treatment,
and supervision of assigned children,” and that he would be “in continuous contact with
emotionally and behaviorally challenged children.” (Id. ¶ 4.) The job description further stated
that Child Care Workers were expected to assist in crises and warned that they must be able to
work in stressful situations. (Id. ¶ 5.) After offering King the job in May 2015, but before he began
work, LCFS required King to complete three tasks: provide LCFS with a copy of his college
transcripts; pass a pre-employment physical, drug test, and background check; and provide proof
of eligibility to work in the United States. (Id. ¶ 11.) LCFS also informed Mr. King that his
employment could be terminated if he was unable to provide college transcripts by October 30,
2015. (Id. ¶ 12.)
King completed his pre-employment physical and drug test on June 1, 2015 at Alexian
Brothers Medical Group in Addison, Illinois. (Id. ¶ 14.) The policies of LCFS and the Illinois
Department of Children and Family Services (“DCFS”) required the examining physician to
complete a “Medical Report on an Adult in a Child Care Facility” (“Medical Report”). (Id. ¶ 15.)
This Report included several questions, including whether King had any “medical or emotional
problems or conditions . . . which may affect [his] ability to work, volunteer or reside in a facility
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caring for children,” and whether King was “medically and emotionally fit to work, volunteer or
reside in a facility caring for children.” (Id. ¶¶ 15–16; see also Medical Report, Ex. 6 to Def.’s
SOF.) King’s examining physician reported that he had no conditions that would affect his ability
to work for LCFS and that he was fit to work in a facility caring for children; the physician concluded
that Mr. King “[m]ay work without restrictions.” (Def.’s SOF ¶ 16.) The physician sent the Medical
Report to LCFS along with test results from his physical examination, the results of a tuberculosis
test, and results from Mr. King’s drug screen. (Id. ¶ 17.) The President and CEO of LCFS, Mike
Bertrand, attested that LCFS never received specific medical records identifying any physical or
mental health condition for which Mr. King would require accommodation. (Id.; see also Bertrand
Aff. ¶¶ 7–8, Ex. 7 to Def.’s SOF.) Bertrand further stated that LCFS did not require its employees
to fill out forms asking them to identify any disabilities they might have. (Def.’s SOF ¶ 19; Bertrand
Aff. ¶¶ 9–10.)
King did not provide his college transcripts by the October 2015 deadline. Another LCFS
employee, Andrew Crews, notified King in November 2015 that he would be moved to a role as
an overnight Child Care Worker from his daytime role if he failed to produce his transcripts by
November 11 (a modification of the initial warning that failure to provide the transcripts would
result in termination). (Def.’s SOF ¶¶ 22–23.) King acknowledged receiving the notice of potential
reassignment (id. ¶ 23), but did not produce his transcripts by November 11 and was reassigned
to the overnight shift. (Id. ¶ 25.) The requirements for the overnight assignment were essentially
the same as for the daytime Child Care Worker position; LCFS asserts that King was responsible
for supervising the residents on his assigned unit and for “assuring safety and security during the
overnight hours and morning routine.”

(Id. ¶ 26 (citing Def.’s Ans. [45] at 8).)

Plaintiff

acknowledged during his deposition that his role at Lutherbrook was to “make sure that [the kids]
don’t hurt each other—that they don’t hurt each other, they don’t hurt themselves.” (King Dep.
197:22–198:2, Ex. 1 to Def.’s SOF.)

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Soon after moving to the overnight role, Plaintiff was reprimanded for violating LCFS
policies. In February 2016, LCFS issued an “informal warning” because Plaintiff had been late to
work twice in one two-week payroll period. (Def.’s SOF ¶ 29; LCFS Warnings at 2, Ex. 10 to
Def.’s SOF.) Plaintiff signed this warning on February 24, 2016. (Id.) Then, on March 7, 2016
LCFS issued a “final warning” after Plaintiff fell asleep during his shift. (Def.’s SOF ¶ 30.) The
document explains that employees had been warned during orientation against sleeping while on
duty because doing so would create a hazardous environment for the youths in the center. (LCFS
Warnings at 1.) The document also informed Plaintiff that he “would be subject to discharge from
his position at the agency” if he again fell asleep at work. (Id.) Plaintiff denies that he was asleep
on the day in question, but acknowledges his signature confirming that he reviewed the document.
(King Dep. 186:15–17.) Plaintiff also denies knowing that he could object to the warning despite
having seen the space for “employee comments” on the warning letter. (Id. 187:4–188:7.)
On April 4, 2016, LCFS fired Plaintiff from his position as a Child Care Worker. (Def.’s
SOF ¶ 36.) In Defendant’s version of the events, Plaintiff again fell asleep during his shift. (Id.)
Because Plaintiff was asleep, he failed to complete rounds of the unit or monitor its residents, and
during the time that Plaintiff was sleeping, a youth resident was allegedly sexually assaulted. (Id.)
Plaintiff denies that he was asleep during his shift, but admitted to being drowsy and
acknowledged that he did nothing as a youth walked through the hallway with a sheet over his
head and entered a bedroom. (Id. ¶ 37.) Plaintiff asserted that he did not question the child or
otherwise engage with him because Plaintiff was “improperly ratioed out,” meaning, as the court
understands it, that the facility was operating at an inadequate or otherwise improper resident-tostaff ratio. (Id.) Plaintiff testified that after the alleged assault occurred, the youth who had
allegedly been assaulted told Plaintiff what had happened. (King Dep. 221:5–7.) Plaintiff and the
youth went to talk to an LCFS supervisor, but Plaintiff did not report the incident to DCFS despite
being required to do so as a mandated reporter. (Id. 221:11–16; Def.’s SOF ¶ 39.) Plaintiff
testified that he did not report the incident to DCFS because a supervisor told him not to do so
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and Plaintiff feared he would lose his job if he reported. (Def.’s SOF ¶ 39.) Moreover, Plaintiff
believed that the youth was lying about having been assaulted. (King Dep. 220:2–221:4.)
Plaintiff states in his briefs that he has been diagnosed with schizoaffective disorder and
that the medications he takes to treat this condition make him drowsy. (Pl.’s MSJ at 2; see also
Def.’s SOF ¶ 44.) During his deposition, Plaintiff acknowledged that he did not initially request
accommodation from LCFS, but claims that he did so later in his employment. (Def.’s SOF ¶ 35.)
The details of when and how Plaintiff made this request are sketchy. Plaintiff testified that he
filled out a “Form CC-305: Voluntary Self-Identification of Disability” (a form created by the
Department of Labor for federal contractors and subcontractors) when he first began employment
with LCFS. (Id. ¶¶ 45, 49.) Plaintiff initially testified that he disclosed his schizoaffective disorder
diagnosis on this form and requested, as an accommodation, that he be permitted to visit his
doctor to obtain a doctor’s note. (Id. ¶ 48.) Plaintiff subsequently recanted most of this testimony,
other than to say that he filled out Form CC-305 and checked a box that said “yes, I have a
disability.”

(Id. ¶ 51.)

Plaintiff acknowledges that he never made a written request for an

accommodation to anyone at LCFS. (Id. ¶ 34.) He claims, however, that at some point, he made
an oral request: specifically, extra staff to help cover his shift. (Id. ¶ 35.) His supervisor rejected
this request, according to Plaintiff, because LCFS was “cheap.” (Id.)
LEGAL STANDARD
Plaintiff has sued LCFS under the ADA for disability discrimination based on the
termination of his employment and for failure to accommodate his disability. Both parties now
move for summary judgment on the ADA claims. 1 Summary judgment is appropriate if there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

1

Plaintiff’s motion for summary judgment discusses claims brought under the Americans
with Disabilities Act, 42 U.S.C. §§ 12112(b) and 12111(9), and the Fair Labor Standards Act. By
earlier order, however, this court dismissed all but Mr. King’s ADA claims. (See July 30, 2018
Order Denying Mot. to Dismiss [27], as clarified, Sept. 27, 2018 Order [40] (confirming during
hearing that only Plaintiff’s ADA claims survived Defendant’s motion to dismiss).)
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law. FED. R. CIV. P. 56(a). A genuine dispute of material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears an initial burden
of proving the absence of such a dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). When the nonmovant bears the ultimate burden of proof at trial on a particular issue,
however, the party moving for summary judgment need not “support its motion with affidavits or
other similar materials negating the opponent’s claim.” Id. at 323 (emphasis in original). Rather,
the movant may discharge its initial burden by showing “that there is an absence of evidence to
support the nonmoving party’s case.” Id. at 325. “Upon such a showing, the nonmovant must
then ‘make a showing sufficient to establish the existence of an element essential to that party’s
case.’” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quoting Celotex, 477 U.S. at
322). When ruling on a motion for summary judgment, a court views the record in the light most
favorable to the non-moving party and draws all reasonable inferences in that party’s favor.
Anderson, 477 U.S. at 255; but see Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 721–22 (7th Cir.
2018) (inferences “supported by only speculation or conjecture” will not suffice).
DISCUSSION
The ADA prohibits discrimination on the basis of disability: “No covered entity shall
discriminate against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Discrimination within the meaning of this section includes “disparate treatment and failure to
accommodate.” Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019) (emphasis omitted)
(quoting 42 U.S.C. § 12112(b)(5)(A) (“not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee . . . .”)). Plaintiff alleges both that he was discriminated against on the
basis of his disability and that Defendant failed to reasonably accommodate his disability.
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I.

Defendant’s Motion for Summary Judgment
A.

Disparate Treatment on the Basis of Disability

In a disparate treatment claim, “the plaintiff alleges the employer treated him or her
differently because of the plaintiff’s disability.” Tonyan v. Dunham’s Athleisure Corp., 966 F.3d
681, 687 (7th Cir. 2020). To state a claim for disparate treatment on the basis of a disability, a
plaintiff must show that (1) he is disabled, (2) he was qualified to perform the essential functions
of his job with or without a reasonable accommodation, and (3) his disability was the “but for”
cause of an adverse employment action. Scheidler, 914 F.3d at 541 (citations omitted). LCFS
argues that Mr. King has failed to produce evidence that he has a disability, that LCFS was aware
of or had reason to know of his disability, that he was terminated for his impairment, or that he
was otherwise capable of performing the essential functions of his job. (Def.’s Mem. in Supp.
Mot. Summ. J. (“Def.’s MSJ”) [106] at 2.)
1.

Is Mr. King Disabled?

Mr. King asserts that he has schizoaffective disorder. As LCFS notes, however, Plaintiff
has not provided any authenticated medical records that support this diagnosis. The document
he has submitted is a medical record that includes the results of lab tests and drug tests, and
includes some reference to Mr. King’s medical history, a record completed during his preemployment physical for LCFS. 2 (See Pl.’s Exs. D ~ 8–12, at page ID 1203-07); Pl.’s MSJ at 6.)
Assuming that Plaintiff does suffer from schizoaffective disorder, Defendant contests that Plaintiff
has established that the condition is a disability as that term is used in the ADA. (Def.’s MSJ at
5–8.) The ADA defines “disability” as “a physical or mental impairment that substantially limits

2

In his response brief, Mr. King also asserts that he has received Social Security
Disability Insurance (Plaintiff’s unauthenticated Exhibit E ~ 10 shows those benefits were received
in 2008–10 and 2019) and was involuntarily committed in 2000 or 2002 (Pl.’s Resp. [111] at 2).
These events were not close in time to Plaintiff’s termination by LCFS, and “facts asserted in a
brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary
judgment motion.” Perez, 2011 WL 4626034, at *2. Plaintiff has offered no evidence showing
that he made LCFS aware of these events before his termination, and he did not produce the
relevant documents to LCFS during discovery. (Def.’s Resp. [112] at 11–12.)
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one or more major life activities of such individual,” “a record of such an impairment,” or “being
regarded as having such an impairment.”

42 U.S.C. § 12102(1)(A)–(C).

In this Circuit,

schizoaffective disorder has previously been found to be a condition that substantially limits major
life activities such as working or thinking. See, e.g., Brown v. Ill. Cent. R.R. Co., 254 F.3d 654,
656 (7th Cir. 2001); Palmer v. Circuit Ct. of Cook Cty., 117 F.3d 351, 352 (7th Cir. 1997);
Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1284 (7th Cir. 1996); see also 29 C.F.R.
§ 1630.2(j)(3)(iii). Plaintiff has not produced evidence that he in fact suffers from this disorder,
but because the court can decide this case without reaching the issue, it will assume for the
purposes of this motion that Plaintiff has a disability.
2.

Did LCFS Know of Mr. King’s Schizoaffective Disorder?

LCFS denies that it knew when it fired Mr. King that he had schizoaffective disorder. LCFS
emphasizes that “an employee cannot hold an employer liable under the ADA if the employer has
no knowledge of the employee’s disability.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055,
1061 (7th Cir. 2014); see also Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995).
LCFS notes that the only medical information it had about Mr. King was the June 2015 preemployment Medical Report from a physician at Alexian Brothers—a four-page document that
makes no mention of Mr. King’s medical records and notes only that Mr. King may need to follow
up with his physicians regularly. (Medical Report at 2 (Def.’s SOF, Ex. 6 [107-1] at page ID 1652.)
Nothing in this Medical Report alerted LCFS that Mr. King has schizoaffective disorder or any
disabling condition. The examining physician reported that Plaintiff had no “medical or emotional
problems or conditions . . . which may affect the individual’s ability to work, volunteer or reside in
a facility caring for children,” and that Plaintiff was “medically and emotionally fit to work, volunteer
or reside in a facility caring for children.” (Def.’s SOF ¶¶ 15–16.) The doctor also cleared Plaintiff
to “work without restrictions.” (Id. ¶ 16.)

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Plaintiff insists that Defendant nevertheless did know he had schizoaffective disorder. 3
The evidence does not support this claim. First, Plaintiff contends that Defendant must have
obtained and retained in its personnel files Plaintiff’s detailed medical records completed during
the pre-hire examination that reflect his condition and his need for medication. (Pl.’s MSJ at 6.)
Plaintiff provides no evidence beyond his own supposition, however, that Defendant received
these medical records, such as a confirmation from the doctor or Plaintiff’s own testimony. The
President and CEO of LCFS, Mike Bertrand, averred that LCFS never received detailed medical
records. (Bertrand Aff. ¶ 8.) LCFS did receive the brief Medical Report, but that report includes
the information described earlier—not Plaintiff’s detailed medical history. (Id. ¶¶ 4–8.) There is
no admissible evidence that LCFS in fact received medical records referring to schizoaffective
disorder.
Plaintiff has offered no evidence that he disclosed his specific condition even when he
claims to have asked his supervisor for extra staff as an accommodation for his disability. (King
Dep. 74:3–75:5.) He claimed to have self-identified as having schizoaffective disorder, but
recanted that testimony and stated at his deposition that when he began working for LCFS, he
disclosed a disability in an employment form. Specifically, Plaintiff insists that at the start of his
employment with LCFS, he completed Form CC-305, a federal form asking employees to
voluntarily disclose any disabilities. (Def.’s SOF ¶¶ 45, 49.) Plaintiff contends that LCFS must
have asked him to complete a Form CC-305 because all federal contractors are required to
maintain such forms for their employees. (Pl.’s MSJ at 4, 6–7.) The President and CEO of LCFS
denies that LCFS asks its employees to fill out any form asking them to identify disabilities,
including Form CC-305. (Bertrand Aff. ¶¶ 9–13.) LCFS also denies being a federal contractor; it

3

In his motion for summary judgment, Plaintiff states that in November 2015 he told
Louis Zaino, the Director of Residential Services, that he could not work overnight because of
“medication concerns and would need a reasonable accommodation[ ].” (Pl.’s MSJ at 2.) Plaintiff
did not mention this conversation in his deposition and otherwise offered no evidence to support
that he told Zaino of his disability in November 2015.
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admits to receiving federal grants, but notes that receiving federal funds does not by itself qualify
LCFS as a federal contractor. (Def.’s MSJ at 10.) And Plaintiff admits that, of the eleven current
and former LCFS employees he spoke to regarding Form CC-305, none recalled having filled out
that form when they began employment with LCFS. (Def.’s SOF ¶ 50.) Viewing the record in the
light most favorable to Plaintiff, including his testimony that he at some point asked for an
accommodation, there is at most a factual dispute regarding whether LCFS knew he suffered
from some unidentified disability at the time it terminated his employment. There is no basis in
the record for an inference that LCFS knew that Plaintiff had schizoaffective disorder.
3.

Was Mr. King Able to Perform the Essential Functions of His Job?

Assuming that Plaintiff notified LCFS at the start of his employment that he had a disability,
Plaintiff bears the burden of showing he was nevertheless able to perform the essential functions
of his job with or without a reasonable accommodation. See Stern v. St. Anthony’s Health Ctr.,
788 F.3d 276, 285 (7th Cir. 2015) (quoting 42 U.S.C. § 12111(8)). The Seventh Circuit employs
a two-step test to determine whether someone is “qualified.” See Majors v. Gen. Elec. Co., 714
F.3d 527, 533–34 (7th Cir. 2013). The court first considers “whether the individual satisfies the
prerequisites for the position, such as possessing the appropriate educational background,
employment experience, skills, licenses, etc.” Stern, 788 F.3d at 285 (quoting Basith v. Cook
Cty., 241 F.3d 919, 927 (7th Cir. 2001)); see also 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m).
If so, the court determines whether “the individual can perform the essential functions of the
position held or desired, with or without reasonable accommodation.” Stern, 788 F.3d at 285
(quotation omitted). The primary dispute here is whether Plaintiff was capable of performing the
essential functions of his job.
To determine whether a particular duty is essential, the court considers “the employer’s
judgment, the amount of time performing the function at issue, the work experience of prior
employees in the same position, and written job descriptions.” E.E.O.C. v. AutoZone, Inc., 809
F.3d 916, 919 (7th Cir. 2016); see also 29 C.F.R. § 1630.2(n)(3). The court does not “second11

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guess the employer’s judgment in describing the essential requirements for the job.” Tonyan, 966
F.3d at 687; see also Gratzl v. Office of Chief Judges of 12th, 18th, 19th, & 22nd Judicial Circuits,
601 F.3d 674, 679 (7th Cir. 2010) (“We presume that an employer’s understanding of the essential
functions of the job is correct, unless the plaintiff offers sufficient evidence to the contrary.”).
LCFS, citing the written job description for Plaintiff’s position, states that as a Child Care Worker,
Plaintiff was responsible for providing “direct care, treatment, and supervision of assigned
children” and “creat[ing] and implement[ing] a therapeutic milieu for all children.” (Def.’s SOF ¶ 4;
Job Description at 1, Ex. 2 to Def.’s SOF.) Child Care Workers are “in continuous contact with
emotionally and behaviorally challenged children,” and the job description notes that the duties
require “physical exertion and constant alertness.” (Id.) Child Care workers must also meet
certain physical and other demands. (Def.’s SOF ¶¶ 4–5.) They must be able to “provide
assistance during crises [sic] situations which may include physical restraint of students up to 18
years old,” “ability to sit approximately 20% and 80% [sic] while performing required duties,” and
“ability to work in situations that may be deemed stressful.” (Id. ¶ 5.) Mr. King does not dispute
that these were requirements of his job.
LCFS contends that Mr. King was not able to perform these essential functions because
of his repeated tardiness and sleeping at work, and because Plaintiff failed to report the alleged
sexual assault to DCFS. (Def.’s MSJ at 12–13.) Plaintiff contends he was capable of doing the
work with an accommodation; though he did not need one when he first started working for LCFS,
he testified that he did need an accommodation at some point later on (King Dep. 75:1–2),
because the medication to treat schizoaffective disorder made him drowsy. (Pl.’s MSJ at 2, 4–8.)
The only potential accommodation Plaintiff identified that would enable him to perform his job
duties was that LCFS could have hired additional staff to help cover his shift. 4 (Def.’s SOF ¶ 35;
King Dep. 74:16–21.)

4

Plaintiff argues that his exhibit D ~ 172 shows that a coworker, Donna Shelby,
admitted under oath during an administrative hearing that Plaintiff asked for an accommodation.
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Plaintiff cannot make a showing that he could perform the essential duties of his job with
a reasonable accommodation if “the only accommodation [he] has ever suggested is not
reasonable.”

Gratzl, 601 F.3d at 680; see also Majors, 714 F.3d at 534.

Reasonable

accommodations in a workplace are “[m]odifications or adjustments to the work environment, or
to the manner or circumstances under which the position held or desired is customarily performed,
that enable an individual with a disability who is qualified to perform the essential functions of that
position.” 29 C.F.R. § 1630.2(o)(1)(ii). Such accommodations may include, among others, job
restructuring, modified work schedules, reassignment to a vacant position, modified equipment,
or appropriate adjustments to policies. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2)(ii).
Plaintiff’s testimony that he requested an accommodation at all was vague and
inconsistent. He again asserted that he had disclosed his disability in the Form CC-305 but, as
described above, there is no evidence that he ever informed his supervisor of his specific
diagnosis.

He also described having asked a previous employer to accommodate him by

permitting him to contact his doctor to communicate with the employer about his needs, and
asserted that he asked LCFS for the same “accommodation.” (Id. 80:2–12 (testifying that he
disclosed on a form “that I need my doctor”).) The only more specific request he claims to have
made is that LCFS “just follow the rules and that I have extra staff.” (Id. 73:7–74:16, 76:22–23.)
Plaintiff later recanted that testimony and confirmed that he never requested an accommodation
from LCFS in writing. (Def.’s SOF ¶¶ 34, 51; King Dep. 98:7–11 (“for the record, I would like to
go back on everything I said before stating that I signed the sheet that says, yes, I have a
disability”), 103:8–24.)

Plaintiff also testified that he requested from a supervisor, Theresa

Coleman, extra staff to help cover his shift, and was told that LCFS would not do that because it
was “cheap.” (King Dep. 74:16–21, 80:12–15, 297:14–21.) Viewing the record in the light most

In the exhibit, an unidentified speaker states “we have asked for extra staff due to, you know, this
client acting out because of how violent he was. And they would never—they would never
accommodate it.” (Ex. D ~ 172 to Pl.’s MSJ.) This statement, even were it admissible, does not
support that Plaintiff requested an accommodation for a disability.
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favorable to Mr. King, there is evidence that he orally requested as an accommodation the
provision of extra staff, but it is not clear from the portions of his deposition in the record when he
made this request (see id. 74:16–21, 75:1–76:4, 103:15–23 (testifying that he made the request
for additional staff at the time he applied; that he made it “several times” during his employment,
or that the request is not in writing but is “in a text message from after I worked there”).) In his
summary judgment submissions, Plaintiff points to no other potential accommodations that could
have allowed him to perform his job duties.
Analysis of whether Mr. King was qualified to do his job with a reasonable accommodation
necessarily overlaps with the question of whether LCFS failed in any obligation it had to provide
such an accommodation. The answer to both of those questions is no. To the extent Mr. King
requested additional staff as an accommodation to his disability, that accommodation is not a
reasonable one. See Stern, 788 F.3d at 295 (citing Spurling, 739 F.3d at 1062; Basden v. Prof’l
Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013); Majors, 714 F.3d at 535). Mr. King does not
dispute that supervising the children in the unit and ensuring their safety overnight was an
essential function of his job as a Child Care Worker. (King Dep. 197:24–198:2.) He suggests
that LCFS was out of compliance with staff ratios, but to the extent he believes LCFS should have
hired additional staff to accommodate him, it appears Mr. King simply wanted another employee
to take over his unit supervision duties—a change in the essential functions of his position. See
29 C.F.R. § 1630.2(n)(2)(i) (“[A] function may be essential because the reason the position exists
is to perform that function.”).

The ADA does not require employers to make such

accommodations. The Seventh Circuit has “repeatedly held” that “[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.” Stern, 788 F.3d at 289 (quotation omitted); see also Majors,
714 F.3d at 534 (quoting Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 1996))
(“employee’s suggested accommodation of hiring a helper to perform an essential function of the
job, the overhead work required by the position, was not a reasonable accommodation.”).
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Because Mr. King’s suggested accommodation is not reasonable as a matter of law, he has failed
to raise an issue of fact regarding whether he was qualified to perform the essential functions of
his job, with or without an accommodation.
4.

Was Mr. King Terminated on the Basis of his Disability?

If Mr. King could establish he that he was qualified for his position as a Child Care Worker,
he would bear the burden of presenting evidence from which a reasonable jury could find he was
fired on the basis of a disability. A plaintiff may show that disability discrimination was the “but
for” cause of his termination using direct evidence, such as an admission by his employer, or
circumstantial evidence. Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 504 (7th Cir. 2017).
Circumstantial evidence includes:
(1) suspicious timing; (2) ambiguous statements or behavior towards other
employees in the protected group; (3) evidence, statistical or otherwise, that
similarly situated employees outside of the protected group systematically receive
better treatment; and (4) evidence that the employer offered a pretextual reason
for an adverse employment action.
Id. (quoting Bunn v. Khoury Enters., Inc., 753 F.3d 676, 684 (7th Cir. 2014)); see also Kurtzhals
v. Cty. of Dunn, 969 F.3d 725, ___, 2020 WL 4580550, at *3 (7th Cir. 2020) (the question to ask
is “could a reasonable juror conclude that [plaintiff] would not have suffered the same adverse
employment action if he were not disabled and everything else had remained the same?”)
(citations omitted).
LCFS asserts that it fired Mr. King for falling asleep during his shift on April 4, 2016, and
that while Mr. King was asleep, one of the youths under his care was allegedly sexually assaulted.
(Def.’s MSJ at 13.) Mr. King acknowledges that, at the time he was fired, he was told it was due
to poor performance in neglecting his duties by sleeping at work and failing to conduct rounds of
the area he was monitoring. (King Dep. 195:12–16.) King, however, believes he was actually
terminated because LCFS was trying to hide the investigation of this assault from DCFS. (Id.
195:23–196:1.) Based on directions he claims to have heard from former colleagues, Plaintiff
also suggests he believed he might be fired in retaliation for having reported the incident. (Id.
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218:9–14.) Plaintiff further asserts, again based solely on hearsay statements, that the alleged
sexual assault victim fabricated his story for the purpose of getting Plaintiff fired. (Pl.’s MSJ at 3.)
On the night that King was fired, he was sitting in a chair, monitoring the hallway to ensure
the children were safe while sleeping in their rooms (King Dep. 197:14–21, 198:8–15), when a
child entered the hallway directly in front of King with a sheet over his head, entered the bedroom
of another child, and then allegedly sexually assaulted that child.

(Def.’s SOF ¶¶ 36–37.)

According to Defendant, video evidence (not in the record) shows that Plaintiff was asleep at the
time this occurred, and that he had not completed the required rounds. (Id. ¶ 36.) Moreover, Mr.
King was a mandated reporter 5 but did not report the alleged sexual assault to DCFS as required.
(Id. ¶ 39.) Plaintiff disputes that he was asleep at the time of the alleged assault, but does not
dispute that he failed to intervene as the youth walked down the hall and entered the bedroom of
another resident. (King Dep. 196:15–19, 198:16–199:2, 202:22–204:7.) Plaintiff testified that he
did not stop the individual with the sheet on his head or ask what he was doing because there
was an improper staff-to-child ratio on the unit at the time. (Id. 199:2–5.) Plaintiff claims his
supervisor had told him not to engage with children if “you are out of ratio.” (Id. 199:21–23.)
Asked at his deposition, “So you believe that it was your responsibility as an overnight childcare
worker to allow children to roam the hallway with sheets over their heads in the early hours of the
morning if you felt the ratio was incorrect?” Plaintiff answered, “Yes.” (Id. 199:24–200:5.) Plaintiff
also conceded that he did not report the alleged assault to DCFS despite recognizing that he was
required to do so as a mandated reporter. (Id. 213:10–215:5.) Plaintiff testified that a supervisor
told him to report the incident to that supervisor instead of reporting to DCFS. (Id. 215:18–22.)
The incident involving the alleged sexual assault occurred after an escalating series of
workplace infractions beginning months after Plaintiff was hired. In November 2015, Mr. King
was reminded in writing that he needed to provide his college transcripts to continue working as

5

See 325 ILCS 5/4(a)(6).
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a daytime Child Care Worker. (See LCFS Warnings at 3.) Plaintiff did not produce his transcripts
by the November 11 deadline and so was moved to an overnight position. In February 2016,
LCFS gave Plaintiff an informal warning for being late to work. (Id. at 2.) The warning explains
LCFS policy that tardiness three times within a 90-day period may result in disciplinary action
including another warning, possible suspension, or termination. (Id.) Finally, there was an
incident involving sleeping during his shift in March 2016. At that time, LCFS issued a final
warning to Mr. King for “fail[ing] to properly execute his work responsibilities by falling asleep
during his shift.” (Id. at 3.) The warning noted that “CCW [Child Care Worker] positions at the
agency serve a vital role in ensuring the safety of youths residing within the facility,” and that
“[s]leeping during shifts creates a hazardous environment for our youths.” (Id.) Mr. King was
further warned that “[s]hould a similar incident occur David would be subject to discharge from his
position at the agency.” (Id.)
The Seventh Circuit “has drawn a distinction between an employee’s disability and
workplace misconduct resulting from that disability.” Tate v. Ancell, 551 F. App’x 877, 885 (7th
Cir. 2014) (citations omitted). An employee may be terminated from employment for violations of
workplace policy even if the violations “occurred under the influence of a disability.” Pernice v.
City of Chicago, 237 F.3d 783, 785 (7th Cir. 2001). Assuming that Plaintiff’s drowsiness and
inaction on the night of the alleged assault are attributable to his schizoaffective disorder—or
more precisely, to the medications used to treat that condition—the Seventh Circuit has made
clear that “if an employer fires an employee because of unacceptable behavior, the fact that that
behavior was precipitated by a mental illness does not present an issue under the ADA.”
Scheidler, 914 F.3d at 542 n.6 (alterations omitted) (quoting Palmer, 117 F.3d at 352); see also
Brumfield v. City of Chicago, 735 F.3d 619, 630–31 (7th Cir. 2013) (listing cases). For the reasons
explained earlier, the record does not support an inference that LCFS knew Mr. King’s disability
could lead to sleepiness during his shift; there is no evidence that Plaintiff told anyone at LCFS
about his specific diagnosis or that the medications he took to treat that condition made him
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drowsy. And viewed as a whole, the record confirms that Mr. King was terminated from his role
as a Child Care Worker because he was not fulfilling the requirements of that position. Plaintiff
was reprimanded more than once for poor work performance. Even if, as Plaintiff insists, he was
not asleep on the night of April 4, 2016, there is no evidence that LCFS did not genuinely believe
that he was. And LCFS’s assessment of his performance is confirmed by his own testimony that
he believes it was not his responsibility to prevent children from wandering the unit unchecked
even if they posed a danger to others. He so testified despite acknowledging that ensuring the
safety of the youths living in the center was one of the essential functions of his job.
Mr. King suggests that LCFS’s stated reason for firing him—that he failed to follow
workplace rules in a way that endangered the youth under his supervision—is pretextual. See
Monroe, 871 F.3d at 505 (“Pretext involves more than just faulty reasoning or mistaken judgment
on the part of the employer; it is a lie, specifically a phony reason for some action.”) (quotation
and alteration omitted). There is, however, no evidentiary support for Mr. King’s theories that he
was fired as part of an attempt by LCFS to hide its investigation of the alleged assault from DCFS,
that he would be retaliated against for reporting the alleged assault, or that the youth fabricated
the assault to have Mr. King fired. Moreover, it is not clear how those theories, if true, would
establish that LCFS fired Mr. King because of his disability. See Stelter v. Wis. Physicians Serv.
Ins. Corp., 950 F.3d 488, 491 (7th Cir. 2020) (“To establish pretext, [plaintiff] needed to show
through inconsistencies or contradictions by [defendant] that the reason for termination was not
the reason proffered, but instead discriminatory.”). All existing evidence supports an inference
that Plaintiff was terminated from his employment because he failed to perform his job’s essential
functions and was not meeting his employer’s expectations. He has failed to rebut this inference
in a way that creates a genuine issue for trial. See, e.g., Leonberger v. Martin Marietta Materials,
Inc., 231 F.3d 396, 399 (7th Cir. 2000) (finding that an employer’s given reason for terminating an
employee who “nodded off” while operating a front loader was not pretextual; “an employee who

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is less than fully alert could harm himself and others if he is operating a front loader”). Summary
judgment in favor of LCFS on Plaintiff’s ADA disability discrimination claim is warranted.
B.

Failure to Accommodate

To succeed on a failure-to-accommodate claim, Plaintiff must show that (1) he was a
qualified individual with a disability, (2) his employer was aware of his disability, and (3) his
employer failed to reasonably accommodate his disability. Scheidler, 914 F.3d at 541 (citations
omitted). “When a qualified employee has requested an accommodation, the ADA requires both
parties to engage in an informal interactive process to identify an appropriate accommodation.”
Youngman v. Peoria Cty., 947 F.3d 1037, 1042 (7th Cir. 2020) (citing 29 C.F.R. § 1630.2(o)(3)).
Before an employer must work with an employee to identify an appropriate accommodation, the
employee must notify his employer of his disability and ask for accommodation. See Guzman v.
Brown Cty., 884 F.3d 633, 642 (7th Cir. 2018). An employer’s failure to engage in the interactive
process is actionable only if it prevents identification of an appropriate accommodation for a
qualified individual. Spurling, 739 F.3d at 1062 (quoting Basden, 714 F.3d at 1039). “Accordingly,
[the employee] must show that a reasonable accommodation could be made that would enable
[him] to carry out the essential functions of [his] job.” Id.
In assessing whether Mr. King has shown he was a qualified person with a disability, the
court noted that there is little evidence that LCFS was aware that Plaintiff had a disability at the
time he was fired, or that Plaintiff could perform the essential functions of his job with a reasonable
accommodation. Plaintiff’s failure-to-accommodate claim falters for similar reasons. There is no
evidence in the record that LCFS knew Plaintiff had schizoaffective disorder. Nor did Plaintiff
identify a reasonable accommodation to his alleged disability, because the potential
accommodation he suggested—for LCFS to hire another employee to cover his shift—is not a
reasonable accommodation as a matter of law. See Majors, 714 F.3d at 535. Because Plaintiff
has not raised a disputed factual issue regarding whether he was a “qualified individual,” any
failure by LCFS to engage in an interactive process to determine an appropriate accommodation
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is not actionable. Spurling, 739 F.3d at 1062. LCFS’s motion for summary judgment on King’s
failure to accommodate claim is granted.
II.

Plaintiff’s Motion for Summary Judgment
Mr. King argues that the court should grant summary judgment in his own favor because

LCFS has not come forward with evidence showing that it had no notice of his disability or his
request for a reasonable accommodation. (Pl.’s MSJ at 1, 4–5.) Mr. King’s failure to submit the
statement of material facts required by the court’s local rules by itself “constitutes grounds for
denial of the motion.” N.D. ILL. L.R. 56.1(a). Putting aside the issue of compliance with Local
Rule 56.1, Plaintiff has not established that he is entitled to summary judgment. Plaintiff bears
the burden of establishing that there are no disputes concerning each element of his ADA
discrimination and failure-to-accommodate claims. See Dargis v. Sheahan, 526 F.3d 981, 986
(7th Cir. 2008). Plaintiff has not made such a showing, and Defendant has no obligation to provide
evidence negating the elements of Plaintiff’s claims. Defendant’s purported lack of evidence that
it was unaware of Plaintiff’s disability or request for an accommodation does not merit summary
judgment in Plaintiff’s favor. Plaintiff’s motion is denied.
III.

Plaintiff’s Motion to Dismiss and Compel
After LCFS responded to Mr. King’s motion for summary judgment, Plaintiff moved to

dismiss LCFS’s response, and to compel additional discovery from LCFS based on Plaintiff’s
belief that it is withholding documents. (Mot. to Dismiss & Compel at 1–2.) Mr. King moves to
dismiss LCFS’s response brief to his motion for summary judgment because he disputes LCFS’s
suggestion that he failed to follow Local Rule 56.1. As discussed above, however, that suggestion
was well-taken: Plaintiff did not comply with Local Rule 56.1—he did not file a response to
Defendant’s Local Rule 56.1 statement of facts, nor did Plaintiff file a Local Rule 56.1 statement
of facts with his own motion for summary judgment. See N.D. ILL. L.R. 56.1(a)–(b). Plaintiff’s
motion to dismiss or strike is denied. Additionally, the court denies Plaintiff’s motion to compel.
In October 2019, Plaintiff sought additional discovery [99] from Defendant of certain documents
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including log sheets showing the ratio of children to staff, time sheets, and voluntary disability selfidentification forms, among other documents. The court granted that motion to compel in part in
October 2019 [102], and discovery closed at the end of November 2019. Then in January 2020,
Mr. King filed this motion to compel stating that he still has not received certain information he
requested such as time sheets showing employee breaks. During a hearing on February 4 of this
year, this court determined that Defendant did produce many of the documents Plaintiff requested,
and represented that other requested documents did not exist. The court noted, in any event,
that much of the requested information does not appear material to Plaintiff’s claims. Plaintiff
does not now explain how access to time sheets would bolster any of his claims. The court
reviewed the arguments made in Mr. King’s motion to dismiss and compel in ruling on these
motions for summary judgment. His motion is otherwise denied.
CONCLUSION
The court considered the arguments in Mr. King’s motion to dismiss and compel [113] as
a reply brief, and declines to strike LCFS’s response brief or compel additional discovery. Mr.
King has failed to show that there is a genuine issue for trial on his disability discrimination and
failure-to-accommodate claims brought under the ADA, or that he is entitled to judgment in his
own favor as a matter of law. Accordingly, Mr. King’s motion for summary judgment [104] is
denied and LCFS’s motion for summary judgment [105] is granted.

ENTER:

Date: September 10, 2020

___________________________
REBECCA R. PALLMEYER
United States District Judge

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