Rowlands v. United Parcel Service Fort Wayne
OPINION AND ORDER: Court GRANTS 50 Motion for Summary Judgment. The Clerk is DIRECTED to enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 10/5/2017. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED PARCEL SERVICE, INC.,
CIVIL NO. 1:13-CV-59 RLM
OPINION AND ORDER
Linda Rowlands brought suit against her former employer, United Parcel
Service, under Title VII, the Age Discrimination in Employment Act, and the
Americans with Disabilities Act after her employment was terminated in July
2012 and January 2013.1 She alleges that UPS discriminated and/or retaliated
against her based on her sex, age, and/or disability, and that similarly situated
non-protected employees were treated more favorably with respect to the
enforcement of the company’s policies, procedures, and discipline.2 UPS’s motion
for summary judgment under Fed. R. Civ. P. 56 pends before the court. For the
following reasons, the court GRANTS the motion.
1 Ms. Rowlands’s ERISA claim was dismissed in February 2015 [Doc. No. 35].
2 Ms. Rowlands is pursuing claims of sex, age, and disability discrimination with respect
to the July 2012 termination, and disability discrimination and retaliation with respect
to the January 2013 discharge. [See Doc. No. 32].
I. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine issue of material
fact, such that the movant is entitled to judgment as a matter of law. Protective
Life Ins. Co. v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). The court
construes the evidence and all inferences that reasonably can be drawn from the
evidence in the light most favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party bears the burden of
informing the court of the basis for its motion, together with evidence
demonstrating the absence of any genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden,
the opposing party can’t rest upon the allegations in the pleadings, but must
“point to evidence that can be put in admissible form at trial, and that, if believed
by the fact-finder, could support judgment in his favor.” Marr v. Bank of America,
N,A., 662 F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut. Ins. Co. v.
LaFollette, No. 1:07-cv-1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6, 2009) (“It
is not the duty of the court to scour the record in search of evidence to defeat a
motion for summary judgment; rather, the nonmoving party bears the
responsibility of identifying the evidence upon which he relies.”).
Linda Rowlands was 50 years old and had worked for UPS at its Fort
Wayne facility for some 25 years when her employment as a Quality Control
Clerk was terminated for the first time in July 2012 for falsifying her time card
in violation of UPS’s Honesty in Employment policy. The pertinent part of that
We expect honesty from our people in all their duties, including their
handling of money, merchandise, and property with which they are
We all expect our people to be honest in their assessment of
themselves, such as the time and commitment they give to their job
performance, the fairness they seek in their dealings with others, or
the objectivity they use in evaluating their own contributions.
DISHONESTY WILL result in immediate dismissal and possible
[Doc. No. 52-6 at 7].
Ms. Rowlands filed a grievance with the union after her termination and
the parties agreed to convert it into a suspension without pay. Ms. Rowlands
returned to work in September 2012. She was terminated again in January 2013
for violating the company’s Crisis Management and Workplace Violence
Prevention Policy after a coworker reported she threatened him when she
displayed and activated a taser at work. UPS’s violence prevention policy
provides in pertinent part:
UPS is committed to a safe working environment, free of threats,
intimidation, and physical harm . . . UPS has adopted a policy of
zero tolerance with respect to violence in the workplace.
UPS prohibits violence related conduct, including but not limited to,
physical assaults, fighting, threatening comments, intimidation,
and the intentional destruction of any company property, employee
property, or merchandise. Any comments or behavior that could
reasonably be interpreted as an intent to do harm to employees or
property will be considered a threat. We also prohibit the possession
and/or use of weapons by any employee on UPS property.
[Doc. No. 52-6 at 9].
Ms. Rowlands doesn’t dispute that she changed the start date on her time
card or that a coworker reported feeling threatened when she brought a taser to
work and activated it ten to fifteen feet from him, nor does she dispute the other
violations for which she was reprimanded. But she contends UPS treated other
similarly situated employees more favorably and the stated reasons for the
discipline were pretextual, asserting that UPS really terminated her because she
was a 50-year-old woman with a disability for which she had requested
A. Title VII and ADEA Claims
Ms. Rowlands alleges that she was suspended in July 2012 because she
was a 50 year-old woman, in violation of Title VII and the ADEA, and that UPS’s
stated reason for suspending her—falsifying her time card and not reporting time
correctly—was “a sham to cover up the real reason” for the suspension.
The court of appeals has “tried to move away from the many multifactored
tests in employment discrimination cases,” and focuses on “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.” Monroe
v. Indiana Dep't of Transportation, __ F.3d __, No. 16-1959, 2017 WL 4103750,
at *5 (7th Cir. 2017) (internal quotation marks omitted). The “sole question” is
“[w]hether a reasonable juror could conclude that [Ms. Rowlands] would have
kept [her] job if [she wasn’t a 50 year-old woman], and everything else had
remained the same.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764 (7th
Ms. Rowlands doesn’t deny altering her time records, or disagree that she
violated UPS’s Honesty in Employment policy. She appears to concede that there
is no direct evidence of sex or age discrimination, but contends that she has “a
rather large amount” of circumstantial evidence from which a reasonable juror
could infer intentional discrimination––specifically evidence that men under 40
were treated better.
In a disciplinary case such as this, in which a Ms. Rowlands “claims that
she was disciplined by her employer more harshly than a similarly situated
employee based on some prohibited reason, [Ms. Rowlands] must show that she
is similarly situated with respect to performance, qualifications, and conduct.”
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002) (quoting Radue
v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000) overruled on other
grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016)). “The
similarly situated inquiry is a flexible, common-sense one that asks, at bottom,
whether there are enough common factors to allow for a meaningful comparison
in order to divine whether intentional discrimination was at play.” Monroe v.
Indiana Dep't of Transportation, __ F.3d __, No. 16-1959, 2017 WL 4103750, at
*7 (7th Cir. 2017) (quoting Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)).
Ms. Rowlands offers Joe Gropengieser, a substantially younger male, who
performed many duties in the quality control department with her, as her nearest
comparator. In some ways, Mr. Gropengieser is a good comparator. Both he and
Ms. Rowlands worked in the quality control department, although their job
descriptions were different, and the evidence suggests that, at least recently,
both were supervised by Steve Liskey.
With regard to conduct, Ms. Rowlands notes that shortly after her January
2013 termination, Mr. Gropengieser and Stephen Harms, a union steward at
UPS, had a verbal altercation during which Mr. Gropengieser told Mr. Harms
they should leave the building to fight. That threat occurred in the presence of
UPS management, Mr. Liskey, who warned Mr. Harms and Mr. Gropengieser
that he would take them out of service if they didn’t end their argument. Mr.
Gropengieser wasn’t discharged—as was Ms. Rowlands when a coworker
reported that she threatened him—despite his apparent violation of UPS’s “zero
tolerance” violence prevention policy.3
3 Ms. Rowlands cites uncontested evidence that Mr. Gropengieser was previously
discharged for fighting another UPS employee in a parking lot neighboring the UPS
facility and was subsequently reinstated. She doesn’t present evidence describing the
UPS doesn’t deny Mr. Gropengieser threatened to beat Mr. Harms yet
wasn’t disciplined. Rather, the company argues that Mr. Gropengieser didn’t
engage in similar conduct because the basis for Ms. Rowlands’s July 2012
suspension was a violation of the Honesty in Employment policy—timecard
fraud—not a violation of the violence prevention policy. UPS contends there is
no evidence Mr. Gropengieser ever falsified his time card or otherwise violated
the Honesty in Employment policy. But the similarly situated inquiry isn’t a
search for a comparator who engaged in identical conduct; “the critical question
is whether they have engaged in conduct of comparable seriousness.” Coleman
v. Donahoe, 667 F.3d 835, 851 (7th Cir. 2012) (quoting Peirick v. Indiana Univ.Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 689 (7th Cir. 2007)).
UPS doesn’t argue that violating the Honesty in Employment policy and an
apparent violation the violence prevention policy don’t constitute conduct of
comparable seriousness and it would seem that threatening to beat a coworker
is at least as serious as falsifying a timecard.
That Mr. Gropengieser and Ms. Rowlands engaged in conduct of
comparable seriousness doesn’t end the court’s inquiry. Ms. Rowlands must
demonstrate that they “engaged in similar conduct without such differentiating
or mitigating circumstances as would distinguish their conduct or the employer's
treatment of them.” Monroe v. Indiana Dep't of Transportation, __ F.3d __, No.
specific details of his termination, such as the supervisor who terminated him, or when,
and under what conditions, he was reinstated.
16-1959, 2017 WL 4103750, at *7 (7th Cir. 2017). To determine whether there
are differentiating circumstances that would distinguish UPS’s response to their
conduct, the court proceeds to consider their performance histories.
This inquiry is complicated by the fact that Ms. Rowlands didn’t depose
any UPS managers or submit for the record any personnel evaluation or other
records that could support her argument that they were similarly situated. The
scant evidence available suggests that they weren’t similarly situated with
respect to performance. Mr. Harms—who largely supported Ms. Rowlands’s
claims in his deposition—testified that Mr. Gropengieser would have been a
better worker than Ms. Rowlands in her job and that she was “a pain in the butt”
to Mr. Liskey and “wasn’t the best worker in the place by far” because she was
“an odd character,” “ditzy,” and “kind of crazy.”
The evidence in the record doesn’t allow the court to conclude that Mr.
Gropengieser was similarly situated with respect to performance history.
Because “[a]n employee who does not have a similar disciplinary history and
performance record as the plaintiff is not similarly situated,” Simpson v.
Franciscan All., Inc., 827 F.3d 656, 662 (7th Cir. 2016) (emphasis added), the
court can’t conclude that Mr. Gropengieser is a valid comparator.
Ms. Rowlands contends that beyond Mr. Gropengieser, “she has many
examples of individuals who were treated more favorably,” arguing that these
other employees engaged in timecard fraud by changing their start times but
weren’t disciplined. But she didn’t cite evidence regarding these employees’ job
description, performance, qualifications, or conduct to support this contention,
so the court can’t determine whether they were similarly situated. She also
asserted that Heather Jones, a supervisor, and Mr. Harms changed their start
times, but weren’t terminated. But Ms. Jones wasn’t prohibited from making
changes because she was a supervisor and Ms. Rowlands didn’t cite any evidence
to show that Mr. Harms or any other employee altered his or her start time after
a UPS policy change prohibited non-management employees from making such
Ms. Rowlands hasn’t identified a similarly situated employee who was
treated more favorably, so the court can’t find that she has produced “evidence
[that] would permit a reasonable factfinder to conclude that . . . [a] proscribed
factor caused the discharge.” Monroe v. Indiana Dep't of Transportation, __ F.3d
__, No. 16-1959, 2017 WL 4103750, at *5 (7th Cir. 2017). Accordingly, the court
must grant UPS’s summary judgment motion as to Ms. Rowlands’s Title VII and
the ADEA claims.
B. ADA Disability Claims
Ms. Rowlands also contends that she was wrongfully discharged in July
2012 and January 2013 because of a disability—a knee injury—or because UPS
regarded her as disabled. She also asserts that UPS failed to make reasonable
accommodations for her disability.
To prevail on her disability discrimination claim and avoid summary
judgment, Ms. Rowlands must show that (1) she is disabled within the meaning
of the ADA; (2) she can perform the essential functions of her job, with or without
reasonable accommodation; and (3) UPS took an adverse job action against her
because of her disability or without making a reasonable accommodation for it.
Basden v. Professional Trans., Inc., 714 F.3d 1034 (7th Cir. 2013); Povey v. City
of Jeffersonville, Ind., 697 F.3d 619 (7th Cir. 2012); Winsley v. Cook County, 563
F.3d 598, 603 (7th Cir.2009). UPS doesn’t dispute that it took an adverse job
action against Ms. Rowlands but argues it didn’t take an adverse job action
because of her alleged disability and contends that she hasn’t demonstrated that
she is disabled.
The inquiry begins with whether Ms. Rowlands meets the ADA’s definition
of disabled and so is covered by the Act. The ADA defines disability as: (1) a
physical or mental impairment that substantially limits one or more of the major
life activities of an individual; (2) a record of such an impairment; or (3) being
regarded as having such an impairment. 42 U.S.C. § 12102. “Major life activities”
include “caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working,” 42 U.S.C. §
12102(2). “An impairment is a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
“‘Substantially limits’ is not meant to be a demanding standard,” but “not every
impairment will constitute a disability within the meaning of th[e ADA].” 29
C.F.R. § 1630.2(j)(1)(i)-(ii).
Ms. Rowlands asserts that her knee injury substantially limited her
performance of the major life activities of walking, standing, squatting, knelling,
and working both in July 2012 and in January 2013. The court will separately
consider Ms. Rowlands’s 42 U.S.C. § 12102(1) disability discrimination claims
with respect to her July 2012 suspension and her January 2013 termination.
1. July 2012 Termination
After falling in April 2012, Ms. Rowlands saw her orthopedist, Dr. Jeffrey
Harris. Dr. Harris’s report from that visit indicates that Ms. Rowlands
complained of “burning and stabbing” right knee pain, which she described as a
ten on a scale of one to ten. [Doc. No. 58-5]. An MRI revealed a right medial
meniscal tear, and Dr. Harris recommended an arthroscopic partial medial
meniscectomy, which was performed after her July 2012 suspension-turnedtermination. Dr. Harris authorized her to return to work before surgery, but
restricted her to “no stairs/docks/ladders at all.”
Ms. Rowlands’s meniscal tear, which she said made various major life
activities difficult and caused a doctor to restrict her from climbing any stairs,
was a substantial limitation on a major life activity and so meets the ADA’s
definition of a disability. See 29 C.F.R. § 1630.2(j)(1)(i), (iii) (“the threshold issue
of whether an impairment ‘substantially limits’ a major life activity should not
demand extensive analysis . . . [and] shall be construed broadly in favor of
Ms. Rowlands was disabled when UPS suspended her in July 2012, so the
court turns to whether that suspension was discriminatory. To demonstrate
disability discrimination, Ms. Rowlands must “show that . . . her employer would
not have fired [her] but for [her] actual or perceived disability; proof of mixed
motives will not suffice.” Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,
962 (7th Cir. 2010). See also Monroe v. Indiana Dep't of Transportation, __ F.3d
__, No. 16-1959, 2017 WL 4103750, at *5 (7th Cir. 2017) (employing the “but
for” causation standard despite the ADA Amendments Act changing the language
of the Act). Ms. Rowlands can make such a showing using either direct or
circumstantial evidence. See Id. Ms. Rowlands offers only circumstantial
evidence of causation. Circumstantial evidence may include: “(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 Enterprises, Inc., 753 F.3d
676, 684 (7th Cir. 2014)). Ms. Rowlands argues that similarly situated employees
received better treatment and UPS’s stated reason for her discharge was
As with her Title VII and ADEA claims, Ms. Rowlands contends that Mr.
Gropengieser was similarly situated and received better treatment. But as
discussed in detail when addressing those claims, Ms. Rowlands can’t show that
Mr. Gropengieser was similarly situated with respect to performance,
qualifications, and conduct.
Ms. Rowlands also asserts that she presented evidence showing UPS’s
stated reason for the adverse employment action taken against her were
pretextual. “In determining whether an employer's stated reason for discharge is
pretextual, the question is not whether the employer's stated reason was
inaccurate or unfair, but whether the employer honestly believed the reason it
has offered to explain the discharge.” Id. “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.” Id. (quoting Argyropoulos v. City of
Alton, 539 F.3d 724, 736 (7th Cir. 2008)).
Ms. Rowlands contends that UPS administered its policies arbitrarily,
singling her out, and subjected her to different standards. She asserts, for
4 Ms. Rowlands doesn’t explicitly argue that discriminatory intent can be shown by
suspicious timing, but she repeatedly notes that she was disciplined for timecard fraud
about a week before her knee surgery. Ms. Rowlands hasn’t fully developed a suspicious
timing argument and “[b]y itself, temporal proximity would not normally create an issue
of material fact as to causation.” Buie v. Quad/Graphics, Inc., 366 F.3d 496, 506 (7th
example, that she was prohibited from taking breaks with coworkers, moving her
car in the parking lot, and bringing her purse to her workstation while coworkers
brought bags and coolers to work. These arguments provide context, but don’t
directly address the issue of pretext. The concern in the pretext inquiry isn’t
whether UPS was unfair or too hard on Ms. Rowlands; “the only question is
whether the employer's proffered reason [for the adverse job action] was . . . a
lie.” Harper v. C.R. England, Inc., 687 F.3d 297, 311 (7th Cir. 2012) (quoting
Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir.2005)).
Ms. Rowlands argues that UPS couldn’t have honestly believed that Mr.
Gropengieser, a 37 year-old body builder, felt threatened by Ms. Rowlands. But
this was the basis for her January 2013 termination, not the July 2012
suspension, and so is irrelevant on this issue. With respect to the July 2012
suspension, Ms. Rowlands doesn’t deny having altered timecard or point to any
other non-management employee who committed timecard fraud and wasn’t
terminated. UPS produced uncontested evidence that two men younger than Ms.
Rowlands were fired in 2014 and 2015 for improperly reporting or altering work
Ms. Rowlands hasn’t offered other evidence that would “show that the
legitimate nondiscriminatory reason offered by [UPS] . . . was a lie or a sham to
cover up discriminatory motives.” She can’t demonstrate that the July 2012
suspension was pretextual. Monroe v. Indiana Dep't of Transportation, __ F.3d
__, No. 16-1959, 2017 WL 4103750, at *6 (7th Cir. 2017).
2. January 2013 Termination
With respect to the January 2013 termination, the court must first
consider whether Ms. Rowlands was disabled when UPS terminated her. Ms.
Rowlands maintains that her knee injury substantially limited her ability to
perform the major life activities of walking, standing, squatting, knelling, and
working even after her meniscal tear was repaired in July 2012 and she was
authorized to return to work. Ms. Rowlands cites statements in her affidavit, in
which she attests, among other things, that: “[her] knee interfered with [her]
ability to climb into vehicles, exercise, enjoy recreation, and pick up objects”,
and that “[she] also had problems and difficulty with walking, standing,
squatting and kneeling [and] could not climb stairs very well.”
The medical evidence in the record contradicts Ms. Rowlands’s claims that
her knee still substantially limited her in January 2013. Her torn meniscus was
surgically repaired in July 2012. While her orthopedist, Dr. Harris, indicated
that she was briefly disabled while recovering from surgery, he estimated that
disability period would end a month after surgery, at the end of August 2012. By
September 2012, Dr. Harris opined that she could “return to work with no
restrictions” and didn’t suggest her knee substantially limited her in any way.
Based on the evidence in the record, no reasonable jury could find that
Ms. Rowlands had an impairment that substantially limit her ability to perform
a major life activity as compared to most people in the general population when
UPS terminated her in January 2013 and, therefore, she wasn’t disabled.5
Based on the foregoing, UPS is entitled to summary judgment on Ms.
Rowlands “substantially limiting impairment” disability discrimination claims.
C. ADA “Regarded as” Disabled Claim
Ms. Rowlands argues that UPS discriminated against her by regarding her
as disabled and wrongfully discharging her in July 2012 and January 2013
because of her actual or perceived impairment. See 42 U.S.C. § 12102(1)(C)
(including being regarded as having a physical or mental impairment that
substantially limits one or more major life activities as part of the definition of
“disability”). “The ‘regarded as’ prong of the ADA's disability definition is intended
to provide a remedy for discrimination based on misperceptions about the
abilities of impaired persons.” Krocka v. City of Chicago, 203 F.3d 507, 513–514
(7th Cir. 2000). To proceed under the “regarded as” prong, Ms. Rowlands must
establish that she was “subjected to a prohibited action because of an actual or
5 Ms. Rowlands doesn’t argue that she met the definition of disability for purposes of
her January 2013 termination because she had a record of a disability. See 42 U.S.C.A.
§ 12102(1) (“[t]he term ‘disability’ means, with respect to an individual--(A) a physical or
mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment”). She argued only that she met the definition under either the
“substantially limiting impairment” or “regarded as” prongs. [See Doc. No. 58 at 3–4
(describing the three prongs under which a plaintiff can claim disability and stating
“Rowlands argues both that she suffered from a physical impairment that substantially
limits her in her life activities and that UPS regarded her as having an impairment”)].
perceived physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major life activity.”
29 C.F.R. § 1630.2(l)(1).
Ms. Rowlands contends that UPS regarded her as disabled because she
had “been off of work for extended periods of time in 2005, 2008-2009, 2011 and
2012,” wore a knee brace when she returned to work in September 2012, and
regularly elevated and iced her knee at work. She also notes that she discussed
her impairment with Mr. Liskey on multiple occasions, including her interest in
icing her knee, elevating her leg, and using a bathroom on the floor where her
work station was located to avoid stairs. These assertions allow an inference that
UPS knew Ms. Rowlands’s knee was injured, but not that UPS regarded her as
Ms. Rowlands points to two pieces of evidence to demonstrate that UPS
wasn’t only aware of her injury, but also regarded her as disabled and fired her
for her disability: her testimony that she told Mr. Liskey that UPS terminated her
in July 2012 because she was disabled, not for timecard fraud, and Mr. Harms’s
testimony that UPS terminated her because of her physical condition. As for Ms.
Rowlands’s testimony, she stated in her deposition that she told Mr. Liskey that
UPS disciplined her in July 2012 because she was disabled, but her assertion
as to UPS’s motive isn’t a fact and her speculations about UPS’s motives can’t
resist summary judgment. See Springer v. Durflinger, 518 F.3d 479, 484 (7th
Cir. 2008) (a plaintiff’s “hunch about the defendant's motives” can’t defeat a
summary judgment motion). When she was asked what evidence she had to
support her claim that UPS had a discriminatory motive in firing her, she
testified that “one week before I had surgery, I got fired. . . I mean, doesn’t that
sound like a coincidence to you?” [Doc. No. 58-2 at 319]. Pointing to coincidental
timing is insufficient to defeat UPS’s summary judgment motion because “[b]y
itself, temporal proximity would not normally create an issue of material fact as
to causation.” Buie v. Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir. 2004).
Mr. Harms’s testimony also doesn’t demonstrate that UPS disciplined Ms.
Rowlands because it regarded her as disabled. Mr. Harms testified that he
believed UPS was trying to get rid of Ms. Rowlands because of her physical
condition. When asked why he believed that, he testified that: “I think all of the
things came together. You know, I think everything—I mean, I believe that they
thought . . . this person, she is hurt quite often. She is . . . costing us money”
[Doc. No. 58-3 at 93–94]. He offered no facts that could allow a reasonable jury
to conclude that UPS disciplined Ms. Rowlands because it regarded her as
disabled and his speculation about UPS’s motives can’t defeat summary
judgment. See Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir.
1991) (“[d]iscrimination law would be unmanageable if disgruntled employees—
the friends of the plaintiff and often people in the same legal position as the
plaintiff—could defeat summary judgment by affidavits speculating about the
UPS is entitled to summary judgment on Ms. Rowlands “regarded as”
disability discrimination claims.
D. ADA Reasonable Accommodation Claim
Ms. Rowlands next argues that UPS didn’t reasonably accommodate her
disability after she notified them of her condition. She contends that this claim
survives because UPS didn’t address it in its summary judgment motion, waiving
any argument with respect to that claim. UPS argues its motion didn’t address
a failure to accommodate claim because neither the amended complaint nor the
EEOC charge incorporated into the complaint stated such a claim.
Ms. Rowlands acknowledges that the amended complaint itself doesn’t
allege a failure to accommodate, but she contends that the EEOC charge
attached to, and therefore incorporated into, the complaint properly states a
failure to accommodate claim. The court disagrees. The relevant portion of the
EEOC charge states that: “Complainant tried to engage in the interactive process
and tried to get reasonable accommodations (such as wearing her knee brace,
eliminating the existence of a long cord which [she] ultimately tripped over
causing more serious injuries to her knee)”, and that “she was retaliated against
Discrimination and trying to engage in the interactive process/making requests
for reasonable accommodations.”
While Ms. Rowlands’s EEOC charge alleges she sought reasonable
accommodations, neither her complaint nor her EEOC charge allege UPS denied
her request. Accordingly, her failure to accommodate claim was waived and UPS
is entitled to summary judgment on that claim. See Hooper v. Proctor Health
Care Inc., 804 F.3d 846, 851 (7th Cir. 2015) (holding that a failure to
accommodate claim was waived where the complaint didn’t include sufficient
facts to put the defendant on notice of a failure to accommodate claim).
E. ADA Retaliation Claim6
Ms. Rowlands asserts that UPS retaliated against her because she sought
reasonable accommodations for her knee impairment. Under the ADA,
“[e]mployers are forbidden from retaliating against employees who raise ADA
claims regardless of whether the initial claims of discrimination are meritless.”
Dickerson v. Board of Trustees of Community College Dist. No. 522, 657 F.3d
595, 602 (7th Cir. 2011). Ms. Rowlands attempts to prove retaliation under the
burden-shifting method, which requires her to make a prima facie showing that:
(1) she “engaged in statutorily protected activity”; (2) she “was performing [her]
job satisfactorily”; and (3) she “was singled out for an adverse employment action
that similarly situated employees who did not engage in protected activity did
6 In her response to the summary judgment motion, Ms. Rowlands agreed to dismiss
with prejudice any claim of retaliation based on her having previously filed EEOC
not suffer.” Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 814 (7th
Cir. 2015) (quoting Dickerson v. Bd. of Trustees of Cmty. Coll. Dist. No. 522, 657
F.3d 595, 601–602 (7th Cir. 2011)).
Like her Title VII, ADEA, and other ADA claims, Ms. Rowlands’s retaliation
claim fails because she hasn’t identified a similarly situated employee who was
treated more favorably. As already discussed, Ms. Rowlands can’t met her
burden to demonstrate that Mr. Gropengieser—or any other coworker—“engaged
in similar conduct without such differentiating or mitigating circumstances as
would distinguish their conduct or the employer's treatment of them.” Monroe v.
Indiana Dep't of Transportation, __ F.3d __, No. 16-1959, 2017 WL 4103750, at
*7 (7th Cir. 2017).
Because Ms. Rowlands can’t establish a prima facie case, UPS is entitled
to summary judgment on her ADA retaliation claim.
For the foregoing reasons, the defendant’s motion for summary judgment
[Doc. No. 50] is GRANTED. The Clerk is directed to enter judgment accordingly.
October 5, 2017
/s/ Robert L. Miller, Jr.
United States District Court
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