Agee v. Walgreen Company
Filing
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ORDER GRANTING in part and DENYING in part Defendant's Motion for Summary Judgment (Doc. 69 ). Signed by Judge Staci M. Yandle on 2/6/2017. (tfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LISA AGEE,
Plaintiff,
vs.
WALGREEN COMPANY,
Defendant.
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Case No. 15-CV-145-SMY-RJD
MEMORANDUM AND ORDER
Before the Court is Defendant Walgreen Company’s (“Walgreens”) motion for summary
judgment (Doc. 69). For the following reasons, the motion is GRANTED in part and DENIED
in part.
Background
Plaintiff Lisa Agee began her employment with Walgreens in October 1994 at their
distribution center in Mt. Vernon, Illinois. She was transferred to the Maintenance/Janitorial
Department in August 2008 where David Strunk, Maintenance/Janitorial Function Manager was
her immediate supervisor. Agee alleges that from the time of her transfer through July 2010, she
was subjected to sexual harassment by Strunk including inappropriate comments, unwanted
advances and implied requests for sexual favors in exchange for overtime assignments, which
Agee refused.
Although the timing is unclear, Plaintiff alleges that she complained to the Maintenance
Manager, Dan Magnus that Strunk was refusing to assign Plaintiff any overtime hours. Magnus
advised Plaintiff that she should discuss the matter with Strunk.
In July 2010, one of Agee’s coworkers, Maurya Gill, complained to the Human
Resources Manager, Mary Supplee, that Strunk had made inappropriate comments to her.
Supplee conducted an investigation that included interviews with several employees, including
Agee. On July 19, 2010, Agee and several other employees provided written statements to
Supplee, alleging that Strunk had made inappropriate sexual comments to them. Strunk resigned
the same day. Agee alleges that the day after she submitted her written statement, she was
ostracized by her coworkers at Dan Magnus’ direction. Agee filed a charge of sex discrimination
and retaliation with the EEOC on November 2, 2010.1
On March 20, 2013, Agee fell off a ladder at Walgreens resulting in various injuries. She
was approved for paid disability leave from March 28, 2013 through June 6, 2013 and returned
to work with temporary restrictions on June 10, 2013. Agee resumed work at full duty on July
22, 2013, but went on leave again on August 8, 2013 due to an alleged mental condition
associated with her injuries. Agee was approved for paid disability from August 16, 2013
through November 6, 2013. She was then approved for unpaid disability leave from November
7, 2013 to April 12, 2015.
Between April 11, 2014 and October 2, 2014, there were numerous phone calls, emails
and in-person meetings between Agee and Walgreens officials to discuss whether there were any
job openings that she could perform with or without accommodations. Agee was told that there
were no open positions that fit her restrictions. She tested for the position of General Office
Clerk on January 8, 2015 and failed.
Agee then tested for the position of Supply Chain
Inventory Clerk on February 10, 2015 and failed. On March 26, 2015, the position of Receiving
Office Clerk became open. Agee tested for the position on April 7, 2015 and passed. She
returned to work April 13, 2015.
Plaintiff’s First Amended Complaint (Doc. 20) asserts three counts: Count I alleges
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Agee filed a Second Charge of Discrimination with the EEOC on February 16, 2015, adding a charge of disability
discrimination.
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sexual harassment under Title VII; Count II alleges that Agee was retaliated against in violation
of Title VII for complaining about discrimination and harassment, including Walgreens’ refusal
to take corrective action for Strunk denying Plaintiff overtime opportunities; Count III alleges
that Walgreens violated the Americans with Disabilities Act by failing to provide reasonable
accommodations that would have allowed Agee to return to work earlier than she did.
Discussion
Summary judgment is appropriate if the “movant shows that there is no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The burden is on the moving party to show that there is no genuine issue of material fact.
Celotex Corp. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). “The
evidence of the non-movant is to be believed, and all justified inferences are to be drawn in
[their] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L.
Ed. 2d 202 (1986).
Count I – Sex Discrimination and Sexual Harassment
“An employer is subject to vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate (or successively higher) authority
over the employee.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270,
141 L. Ed. 2d 633 (1998). If there is no “tangible employment action,” the employer can raise
the Faragher/Ellerth defense, which is comprised of two elements: “(a) that the employer
exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the Agee employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Hill v. Am. Gen. Fin., Inc.,
218 F.3d 639, 642–43 (7th Cir. 2000). The defense is only available if there is no tangible
employment action.
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While Walgreens does not directly address whether Plaintiff was subject to a tangible
employment action, it argues that it exercised reasonable care to prevent and correct any
harassing behavior by having a comprehensive anti-harassment policy, training employees about
this policy, and promptly investigating the claims about Strunk, ending in his immediate
resignation. Agee contends that she suffered a tangible employment action when she was
ostracized by her coworkers at the direction of Magnus less than 24 hours after complaining to
human resources. Agee further argues that, although Walgreens had an anti-harassment policy
that she was aware of, she could not complain to her immediate supervisor because he was the
perpetrator of the harassment. She concedes however, that under the policy, she had a choice of
whom she could report her complaints to.
Agee’s argument, offered in support of her sex discrimination and sexual harassment
claim, that she suffered a “tangible employment action” fails.
Agee conflates the alleged
ostracization by her coworkers with a hostile work environment created by the sexual
discrimination and harassment she was allegedly subjected to by Strunk. By her own allegations,
her coworkers began to ostracize her after she gave her written statement on July 19, 2010 – the
day Strunk resigned. As such, the alleged ostracization cannot be the basis for a tangible
employment action to support her claims for sex discrimination and harassment based on
Strunk’s conduct, and Walgreens appropriately raises the Faragher/Ellerth defense.
However, Walgreens is not entitled to summary judgment on this issue. Material issues
of fact remain for the jury’s determination as to whether Walgreens exercised reasonable care to
promptly prevent and correct sexual harassment by the manner in which it implemented its
sexual harassment complaint procedure and whether Agee unreasonably failed to take advantage
of any preventive or corrective measures offered by Walgreens. Agee testified in her deposition
that she had previously complained to Magnus and his supervisor regarding overtime hours and
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was told that she needed to respect the chain of command and take her complaints to her
immediate supervisor.
It will be left for the jury to decide whether under the relevant
circumstances, Agee’s failure to complain about Strunk’s conduct prior to July 2010 was
unreasonable. Accordingly, Walgreens’ motion for summary judgment is denied as to Count I.
Count II – Retaliation
To state a claim of retaliation under Title VII, Agee must establish, “(1) that she engaged
in statutorily protected activity; (2) that her employer took an adverse employment action against
her; and (3) that the protected activity and the adverse employment action are causally
connected.” Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010, 1019 (7th Cir. 2016).
Walgreens maintains that Agee never complained about Strunk or anyone else at
Walgreens harassing her. Additionally, Walgreens argues that there is no evidence of any intent
to retaliate against Agee. Agee argues that giving a witness statement and participating in the
investigation was statutorily protected activity and that the suspicious timing of the alleged
retaliation (employees ostracizing Agee at Magnus’ direction) is sufficient to establish motive or
intent.
It is unlawful to discriminate against an employee “because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing[.]”
42 U.S.C.A. § 2000e-3. Here, Agee’s involvement in the investigation of Strunk’s conduct
constitutes protected activity under the statute.
“[R]etaliatory motive may be established through circumstantial evidence such as
suspicious timing, ambiguous statements, evidence that the stated reason for the employment
decision is pretextual” among other evidence. Ripberger v. Corizon, Inc., 773 F.3d 871, 881 (7th
Cir. 2014). Although, suspicious timing alone is “rarely enough” to create an inference of
retaliatory motive. Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010, 1021 (7th Cir. 2016). Agee
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testified that she was ostracized by her coworkers at the direction of Magnus, within 24 hours of
reporting Strunk’s harassment. Given the immediacy of the alleged retaliation, a jury could
reasonably conclude that Magnus’ motive in directing employees to ostracize Agee was
retaliatory and causally connected to Agee’s involvement in the investigation. See Id. (finding
two week gap between protected activity and retaliation sufficient in conjunction with other
evidence); Magyar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 772 (7th Cir. 2008) (finding “a
month short enough to reinforce an inference of retaliation”). Therefore, Walgreens’ motion for
summary judgment is denied as to Count II.
Count III – Disability Discrimination
The Americans with Disabilities Act provides that employers shall not “discriminate
against a qualified individual on the basis of disability,” including “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual[.]” 42 U.S.C. § 12112. A disabled employee is a “qualified individual” when “with
or without reasonable accommodation, [the employee] can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). To succeed
on a failure to accommodate claim, Agee must establish that “(1) [she] is a qualified individual
with a disability; (2) the employer was aware of her disability; and (3) the employer failed to
reasonably accommodate the disability. Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 682
(7th Cir. 2014).
Walgreens argues that, as a matter of law, they provided Agee with reasonable
accommodations by approving 15 requests from Agee for leave of absence benefits covering 17
months, and placing her in a position for which she was qualified and that had duties she could
perform with her restrictions. Agee counters that Walgreens failed to engage in the interactive
process and failed to provide her with internal job postings, resulting in her not being placed in a
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position as quickly as she should have been.
Medical leave of absence qualifies as a reasonable accommodation. See Basith v. Cook
Cty., 241 F.3d 919, 932 (7th Cir. 2001) (citing 29 C.F.R. § 1630.2(o)); Byrne v. Avon Prod., Inc.,
328 F.3d 379, 381 (7th Cir. 2003) (“Time off may be an apt accommodation for intermittent
conditions.”); Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 602 (7th Cir. 1998)
(Employee’s second medical leave would have been a reasonable accommodation.) In Basith,
the Seventh Circuit upheld the district court’s ruling that the employee’s medical leave of
absence was a reasonable accommodation when the employer later created a special assignment
for him that reallocated essential functions of the job. The court found that this constituted a
reasonable accommodation even if the employee was able to perform the essential functions of a
different position that the employee would have rather had.
Here, Walgreens approved Agee’s 17 months of leave of absence benefits while the
parties were engaged in an efforts to find another position that Agee could perform. The parties
disagree as to whether Agee could have performed the essential functions of the maintenance
janitor position. However, even if Agee were able to do so with or without accommodation,
Walgreens reasonably accommodated Agee by providing leave of absence and eventually
placing her in a position that she could perform.
Moreover, the record establishes that Walgreens did in fact engage in an interactive
process to find a position for her. From April 2014 to April 2015, there were numerous phone
calls, emails and in-person meetings between the parties to find a position that would fit within
Agee’s restrictions. Eventually, positions opened within Agee’s restrictions and she was allowed
to test for these positions. Although she was unsuccessful with the first two tests, she passed the
third and was immediately placed in the position that she still holds today.
Under these
undisputed facts, Walgreens did not fail to reasonably accommodate Agee and did not fail to
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engage in the interactive process to find a position that fit her restrictions. For these reasons,
summary judgment is granted as to Count III. Plaintiff may proceed to trial on her claims for
sexual discrimination and harassment (Count I) and retaliation (Count II).
IT IS SO ORDERED.
DATED: February 6, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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