Hensler v. City of O'Fallon , IL

Filing 41

ORDER granting in part and denying in part 31 Motion for Summary Judgment; denying as moot 36 Motion for Hearing. Signed by Chief Judge David R. Herndon on 7/28/11. (kls2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JULIANA HENSLER,
Plaintiff,
v.

No. 09-cv-268-DRH

CITY OF O’FALLON, IL,
Defendant.

ORDER

HERNDON, Chief Judge:
Now before this Court is defendant’s motion for summary judgment (Docs.
31 & 35) and plaintiff’s rule 7.1(h) motion for oral argument (Doc. 36). For the
following reasons, defendant’s motion for summary judgment is GRANTED in
part and DENIED in part, and plaintiff’s motion for oral argument is DENIED as
moot.

Specifically, the only portion of the Complaint for which summary

judgment is DENIED is the failure to promote theory of Count II’s retaliation
claim.
Plaintiff’s complaint contains two counts and each count is supported by
two separate theories. Count I alleges disability discrimination evidenced by a
failure to promote plaintiff and constructive discharge of plaintiff.

Summary

judgment is granted on both theories because plaintiff has not suffered a disability
as defined by the ADA.

Summary judgment is further appropriate on the

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constructive discharge theory of Count I because plaintiff has presented no
evidence of the kinds of “intolerable conditions” required for constructive
discharge.
Count II alleges retaliation for the plaintiff’s charges of discrimination filed
with the Equal Employment Opportunity Commission (“EEOC”) and the Illinois
Department of Human Rights (“IDHR”) evidenced by a failure to promote plaintiff
and constructive discharge of plaintiff.

Summary judgment is granted on the

constructive discharge theory of Count II because, as in Count I, plaintiff has
presented no evidence of the kinds of “intolerable conditions” required for
constructive discharge. Summary judgment is denied on the failure to promote
theory of Count II because there is a genuine issue of material fact as to whether
defendant’s failure to promote plaintiff was in retaliation for her filing the
EEOC/IDHR charges.
I. Introduction & Background
On April 8, 2009, plaintiff Juliana Hensler filed a two-count complaint
under the American with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
against defendant City of O’Fallon, Illinois (Doc. 2). O’Fallon filed an answer and
affirmative defenses denying all material allegations (Doc. 8).

Hensler alleges

O’Fallon did not promote her or constructively discharged her because of her
disability (Count I) or in retaliation for charges of discrimination filed by Hensler
with the EEOC and the IDHR (Count II). Plaintiff alleges she filed a timely charge

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of discrimination with the EEOC and the IDHR, received a Notice of Right to Sue
from both, and filed suit within 90 days from the receipt of those notices (Doc. 2).
A. Timeline
Hensler was formally diagnosed with fibromyalgia in 2000 and with chronic
fatigue syndrome in 2004.1

She began working for O’Fallon as a part-time

dispatcher in February 2002. From February 2002 until February 2004, Hensler
worked six-hour shifts two days a week, occasionally filling in for other
dispatchers, which sometimes required working twelve-hour shifts. In February
2004, Hensler gave her supervisor a note from her doctor indicating her condition
precluded her from working twelve-hour shifts. Her request was accommodated
and she did not work twelve-hour shifts. In September 2005, Hensler submitted
a doctor’s note indicating she could work an “occasional twelve-hour shift.” She
was then assigned to a permanent part-time schedule.

In December 2006,

Hensler was removed from the January 2007 work schedule. In January 2007,
Hensler sought unemployment benefits. In February 2007, Hensler was back on
the schedule, working two four-hour shifts per week. She informed O’Fallon of
her desire to be promoted to full-time employment. In March 2007, dispatcher
Tora Ouchie was promoted to a full-time position. On March 30, 2007, Hensler
filed a charge of discrimination with the EEOC. In April 2007, a second full-time
dispatcher position opened, a job that went to Valerie Hancock. Hensler filed a
1

Although the complaint does not mention chronic fatigue syndrome, the pleadings and motions
do not draw distinctions between the kinds of symptoms and limitations of chronic fatigue
syndrome and fibromyalgia and neither side disputes plaintiff has been diagnosed with both. The
parties seem to treat them as two sides of the same coin. At any rate, distinction between the two
has no bearing on the summary judgment determinations in this case.

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charge of discrimination, this time with the IDHR, on April 25, 2007. In October
2007, Hensler was interviewed for a third full-time dispatcher position, along with
three other candidates. That position ultimately went to Shelley Rowe, who began
that job in October 2007. During that same month, Hensler was scheduled to
work three twelve-hour shifts unassisted. She submitted her letter of resignation
on October 17, 2007.
B. Hensler’s Medical Conditions
Hensler was formally diagnosed with fibromyalgia in 2000 and with chronic
fatigue syndrome in 2004. In her deposition, Hensler affirmed that during the
time she worked for O’Fallon as a dispatcher, she was able to care for herself;
perform manual tasks; walk; see; hear; and speak. Hensler Dep. pp. 198-99.
She did not have trouble breathing, difficulty learning, or difficulty working. Id. at
199.
In an affidavit attached to Hensler’s Reply to defendant’s motion for
summary judgment (Doc. 34-10), Hensler states that as a result of the
fibromyalgia and chronic fatigue syndrome, she was “chronically fatigued and in
significant pain” on a daily basis (¶ 4). She affirms these conditions “substantially
interfered” with her ability to “move around, walk without pain, wake from sleep
feeling refreshed, exert [her]self, stay awake, remain alert after twelve hours,
sleep, and engage in recreational activities.” Id. at ¶ 5. Further, these conditions
“resulted in constant fatigue, muscle aches, and joint pain that made it difficult”
for Hensler “to move around and ambulate without pain.” Id. at ¶ 10.

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As a general rule, a party may not create an issue of fact by submitting an
affidavit whose conclusions contradict prior deposition or other sworn testimony.
Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Supplemental
affidavits may be employed to clarify ambiguous or confusing deposition
testimony. Id. In the context of opposing a motion for summary judgment, when
a clear prior statement is contrasted with a later affidavit and the affidavit appears
to be an effort to contradict the effects of deposition testimony and establish a
missing link, a district court can rationally decide to strike the affidavit. See id.
at 293 (affirming the district court’s striking of an affidavit contradicting earlier
deposition testimony and attempting to establish causation). Because Hensler’s
affidavit appears to be an effort to contradict her deposition testimony and
establish a missing link of being substantially impaired in a way that constitutes a
disability under the ADA, her affidavit will be stricken and not considered for
summary judgment purposes.
II. Law & Application
A. Summary Judgment
Summary judgment is appropriate only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A genuine issue of material fact exists when the evidence is such that a reasonable
jury could find for the nonmovant. Buscaglia v. United States, 25 F.3d 530, 534

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(7th Cir. 1994). The movant in a motion for summary judgment bears the burden
of demonstrating the absence of a genuine issue of material fact by specific
citation to the record; if the party succeeds in doing so, the burden shifts to the
nonmovant to set forth specific facts showing that there is a genuine issue of fact
for trial.

Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). In considering motions for summary judgment, a court construes all facts
and draws all inferences from the record in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B. ADA Discrimination
The

ADA

protects

“qualified

individuals

with

a

disability”

from

discrimination in their employment, the hiring process, or promotions. 42 U.S.C.
§ 12212(a)2; Rooney v. Koch Air, LLC, 410 F.3d 376, 380 (7th Cir. 2005). The
statute defines a “qualified individual with a disability” as “an individual with a
2

Significant changes to the ADA took effect on January 1, 2009, after the events at issue occurred.
See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). Congress did not
express its intent for these changes to apply retroactively, and so we look to the law in place prior
to the amendments. Fredericksen v. United States Parcel Serv., Co., 581 F.3d 516, 521 n.1 (7th
Cir. 2009). Similarly, changes to the 29 C.F.R. §§ 1630.1 and 1630.2 went into effect on May 24,
2011. See Regulations to Implement the Equal Employment Provisions of the Americans With
Disabilities Act, as Amended, 76 Fed. Reg. 16978-01 (March 25, 2011) (to be codified at 29 C.F.R.
§ 1630). Nothing in those regulations clearly states they are to have retroactive effect; in fact, the
revisions were necessitated by the Amendments Act. See id. (noting the Amendments Act
“changes the way . . . statutory terms should be interpreted in several ways, therefore necessitating
revision of the prior regulations and interpretive guidance”). Because a desire for retroactivity is
not clearly expressed in the regulation, the next consideration is whether application of the
regulation would have a retroactive effect, meaning it would impair vested rights or attach new
consequences to completed transactions. See Landgraf v. USI Film Products, 511 U.S. 244, 280
(1994); see also Labojewski v. Gonzales, 407 F.3d 814, 819 (7th Cir. 2005). In this case,
application of the regulations in question would have a retroactive effect, because they change the
definition of, inter alia, “substantially limits” in a way designed not to require the level of
limitation and the intensity of focus applied by the Supreme Court in Toyota Motor Mfg., Ky, Inc.
v. Williams, 534 U.S. 184 (2002). See 76 Fed. Reg. 16978-01. Accordingly, the regulations will
not be retroactively applied, and all citations to the regulations refer to the pre-2011 Code of
Federal Regulations edition.

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disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8).
1. Disability
An individual can prove she is disabled for ADA purposes in one of three
ways: (1) she has a physical or mental impairment that substantially limits one
or more major life activities; (2) she has a record of such an impairment; or (3)
she is regarded as having such an impairment by her employer.

42 U.S.C. §

12102(2); Sutton v. United Air Lines, 527 U.S. 471, 478 (1999). A person is
“regarded as disabled” when the employer, rightly or wrongly, believes that she
has an impairment that substantially limits one or more major life activities.
Rooney, 410 F.3d at 382. If the condition that is the subject of the employer's
belief is not substantially limiting, and the employer does not believe that it is,
then there is no violation of the ADA under the “regarded as” prong of the statute.
Id.
Not all impairments or conditions qualify as a disability within the meaning
of the ADA. Rooney, 410 F.3d at 381. To be disabled, “an individual must be so
limited in one or more major life activities that she is impaired in her ability to
‘perform the variety of tasks central to most people’s lives.’” Id. (quoting Toyota
Motor Mfg., Ky. V. Williams, 534 U.S. 184, 201 (2002)).

A person is

“substantially limited” in a major life activity when she is “[s]ignificantly restricted
as to the condition, manner or duration under which [she] can perform a

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particular major life activity as compared to the condition, manner, or duration
under which the average person in the general population can perform that same
major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii); see also Turner v. The Saloon,
Ltd., 595 F.3d 679, 689 (7th Cir. 2010).
The inability to perform a particular job “does not normally constitute a
substantial limitation in the major life activity of working.”

29 C.F.R. §

1630.2(j)(3)(i); Rooney, 410 F.3d at 381. If a plaintiff’s own testimony “leaves no
doubt” that she is “able to perform the tasks central to most people’s lives,” that
in itself “dooms” her claim that she is suffering from a disability cognizable under
the ADA. Rooney, 410 F.3d at 381.
Plaintiff’s deposition makes it abundantly clear that she is not so limited in
one or more of her major life activities that she is impaired in her ability to
perform tasks central to most people’s lives, and there is no evidence suggesting
otherwise.

Plaintiff’s deposition testimony specifically affirms she was able to

walk, see, hear, speak, care for herself and perform manual tasks during her time
as a dispatcher for defendant. Plaintiff further confirms she did not have trouble
breathing, difficulty learning or difficulty working. Furthermore, there is nothing
to suggest defendant “regarded” plaintiff as having such impairment. As such,
defendant’s motion for summary judgment as to Count I must be granted.
2. Constructive Discharge
To prevail on a claim for constructive discharge, “an employee must show
both that a hostile work environment existed and ‘that the abusive working

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environment became so intolerable that her resignation qualified as a fitting
response.’” Rooney, 410 F.3d at 382-83 (7th Cir. 2005) (citing Pennsylvania
State Police v. Suders, 542 U.S. 129 (2004)).

Beyond that, Hensler had to

demonstrate that the constructive discharge was the result of her disability.
Rooney, 410 F.3d at 382-83.
Examples of intolerable conditions of employment required in constructive
discharge cases include an employee’s boss consistently making racial comments
and on one occasion holding a gun to his head, taking a photo, and later showing
it at a staff meeting while making racial jokes (Taylor v. Western & Southern Life
Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992)); an employee's human resource
manager repeatedly showing her racist pornographic photos and making
threatening comments to her including a threat to kill her (Brooms v. Regal Tube
Co., 881 F.2d 412, 417 (7th Cir. 1989)); and repeated use of a noose combined
with implied threats of physical violence (Porter v. Erie Foods Int’l, Inc., 576 F.3d
629, 640 (7th Cir. 2009)).
Plaintiff here alleges having to work three twelve-hour shifts unassisted in
October 2007 constituted such an abusive working environment that she was
forced to resign.

Even if plaintiff has been able to create a genuine issue of

material fact as to whether she suffered a disability within the meaning of the
ADA, which she has not done, summary judgment would still be appropriate on
the constructive discharge theory of Count I because the intolerable conditions

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plaintiff claims are nowhere near abusive enough to constitute constructive
discharge.
C. ADA Retaliation
This Court’s earlier conclusion that plaintiff does not have a disability
within the meaning of the ADA does not foreclose a retaliation claim. The ADA
prohibits an employer from retaliating against an employee who has raised an
ADA claim regardless of whether that employee ultimately succeeds on the merits
of that claim. Squibb v. Mem’l Medical Ctr., 497 F.3d 775, 786 (7th Cir. 2007).
A plaintiff succeeds in establishing unlawful retaliation under a direct
method of proof by presenting evidence of (1) a statutorily protected activity, (2)
an adverse action, and (3) a causal connection between the two. Id.
To succeed under the indirect method of proof, a plaintiff must
demonstrate that she (1) engaged in protected activity, (2) was performing her job
satisfactorily, and (3) was singled out for an adverse employment action (4) that
similarly situated employees who did not engage in protected activity did not
suffer. Miller v. Illinois Dept. of Transp., 643 F.3d 190, 200 (7th Cir. 2011);
Squibb, 497 F.3d at 788.

Mere temporal proximity between protected conduct

and an alleged retaliatory act will rarely be sufficient in and of itself to create a
triable issue. See Miller, 643 F.3d at 201.
The first prong under either method of proof—that plaintiff engaged in
protected activity—has been met here. Filing charges of discrimination with the

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EEOC and IDHR alleging disability discrimination and retaliation constitute a
protected activity and there is no dispute plaintiff filed such charges here.
Both methods of proof also require plaintiff to present evidence of suffering
an adverse employment action. For her constructive discharge theory of Count II,
plaintiff is unable to show she suffered the “adverse employment action” of
constructive discharge.

As discussed above, working three twelve-hour shifts

unassisted does not constitute such an abusive working environment that plaintiff
was forced to resign. Without evidence to support constructive discharge, plaintiff
is unable to show a prima facie case of retaliation. Summary judgment is granted
on the constructive discharge theory of the retaliation claim in Count II.
For the failure to promote theory, however, plaintiff did present evidence
that she was not promoted, which is an adverse employment action.

The

requirement under the indirect method of proof that plaintiff was performing her
job satisfactorily is hotly contested between the parties, and both sides have
offered facts supporting their arguments about plaintiff’s job performance. There
is enough evidence to create a genuine issue of material fact on this element.
The only remaining question is whether plaintiff has provided evidence
either of a causal connection between her lack of promotion and her filing the
EEOC/IDHR charges or that similarly situated employees who did not engage in
protected activities did not suffer adverse employment action. Plaintiff has
provided evidence sufficient under either method of proof to create a triable issue
of fact.

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First there is the timing. Plaintiff filed charges with the EEOC and IDHR on
March 30, 2007 and April 25, 2007, and plaintiff was not promoted to full-time
dispatcher positions that became open in March, April and August of 2007.
Fellow dispatchers Tora Ouchie, Valerie Hancock and Shelly Rowe were promoted
instead.

The promotion of Tora Ouchie occurred prior to plaintiff’s filing any

charges of discrimination, meaning Ouchie’s promotion could not have been
retaliatory. While mere temporal proximity is rarely independently sufficient to
create a triable issue, the temporal proximity here between the April and August
promotions compared to plaintiff’s complaints in March and April does support
plaintiff’s claim of retaliation.

The timing is not the only evidence supporting

plaintiff’s argument.
Additionally, part of defendant’s explanation for promoting Shelley Rowe
over plaintiff was impartial oral interviews. Plaintiff has provided evidence that, if
believed, could permit a trier of fact to determine the interview explanation is
pretextual. The full-time slot Rowe filled was open in September 2007 and the
interviews were to take place October 5, 2007. Prior to the interviews, Rowe was
scheduled zero hours in October while plaintiff was given a typical part time
schedule. It was only after the interviews that Rowe was given a full-time schedule
for October.

This could suggest the decision to hire Rowe and not promote

plaintiff was made prior to the interview occurring.
Defendant further explains part of its decision for hiring Rowe was her
education and experience as a dispatcher.

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However, plaintiff has provided

evidence that she was more experienced than Rowe: prior to being promoted to
full-time, Rowe had never worked a shift by herself and did not have the
Emergency Medical Dispatcher certificate, unlike plaintiff.
The timing of the promotions and evidence suggesting pretext are enough to
withstand a motion for summary judgment. This Court does not mean to convey
that the timing, interview process, and experience and education of Rowe are the
only factors supporting plaintiff’s argument of pretext; rather, those items are
more than sufficient to create a genuine issue of material fact as to whether
defendant retaliated against plaintiff for filing her EEOC and IDHR charges by not
promoting her.

Further review of other evidence is unnecessary.

Summary

judgment as to the failure to promote theory of Count II is denied.
III. Conclusion
Defendant’s motion for summary judgment is GRANTED in part and
DENIED in part, and plaintiff’s motion for oral argument is DENIED as moot.
Specifically, the only portion of the Complaint for which summary judgment is
DENIED is the failure to promote theory of Count II’s retaliation claim.
Plaintiff’s complaint contains two counts and each count is supported by
two separate theories. Count I alleges disability discrimination evidenced by a
failure to promote plaintiff and constructive discharge of plaintiff.

Summary

judgment is granted on both theories because plaintiff has not suffered a disability
as defined by the ADA.

Summary judgment is further appropriate on the

constructive discharge theory of Count I because plaintiff has presented no

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evidence of the kinds of “intolerable conditions” required for constructive
discharge.
Count II alleges retaliation for the plaintiff’s charges of discrimination filed
with the EEOC and the IDHR evidenced by a failure to promote plaintiff and
constructive discharge of plaintiff.

Summary judgment is granted on the

constructive discharge theory of Count II because, as in Count I, plaintiff has
presented no evidence of the kinds of “intolerable conditions” required for
constructive discharge. Summary judgment is denied on the failure to promote
theory of Count II because there is a genuine issue of material fact as to whether
defendant’s failure to promote plaintiff was in retaliation for her filing the
EEOC/IDHR charges.

IT IS SO ORDERED.
Signed this 28th day of July, 2011.
Digitally signed by David
R. Herndon
Date: 2011.07.28 10:02:37
-05'00'

Chief Judge
United States District Court

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