Davis v. Munster Community Hospital et al
Filing
103
OPINION AND ORDER Defendants Motion for Summary Judgment DE # 67 is GRANTED IN PART and DENIED IN PART, Defendants Motion to Strike Portions of Plaintiffs Evidence, Statement of Genuine Disputes and Plaintiffs Affidavit from Plaintiffs Response to Defendants Motion for Summary Judgment DE # 91 is DENIED, Defendants Motion to Strike Portions of Plaintiffs Evidence based upon Failure to Disclose during Discovery DE # 93 is GRANTED IN PART and DENIED IN PART, and the Stipulated Motion to Apply the Legal Standards Set Forth in Ortiz vs. Werner to the Parties Pending Summary Judgment Pleadings and Evidence DE # 98 is GRANTED. Count II of the First Amended Complaint is hereby DISMISSED. Signed by Judge Rudy Lozano on 9/30/16. (kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
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LINDA J. DAVIS
Plaintiff,
vs.
MUNSTER MEDICAL RESEARCH
FOUNDATION, INC. d/b/a
COMMUNITY HOSPITAL.
NO. 2:14–CV-220
Defendant.
OPINION AND ORDER
This matter is before the Court on the “Defendant’s Motion
for Summary Judgment,” filed by Defendant Munster Medical Research
Foundation d/b/a Community Hospital (“Hospital”) on February 19,
2016
(DE
Plaintiff’s
#67),
“Defendant’s
Evidence,
Motion
Statement
of
to
Strike
Genuine
Portions
Disputes
of
and
Plaintiff’s Affidavit from Plaintiff’s Response to Defendant’s
Motion for Summary Judgment,” filed on August 19, 2016 (DE #91),
“Defendant’s Motion to Strike Portions of Plaintiff’s Evidence
based upon Failure to Disclose during Discovery,” filed on August
19, 2016 (DE #93), and “Stipulated Motion to Apply the Legal
Standards Set Forth in Ortiz vs. Werner to the Parties’ Pending
Summary Judgment Pleadings and Evidence,” filed by both parties on
September 14, 2016 (DE #98).
For the reasons set forth below,
Defendant’s Motion for Summary Judgment (DE #67) is GRANTED IN
‐1‐
PART and DENIED IN PART, Defendant’s Motion to Strike (DE #91) is
DENIED, Defendant’s Motion to Strike (DE #93) is GRANTED IN PART
and DENIED IN PART, and the “Stipulated Motion to Apply the Legal
Standards Set Forth in Ortiz vs. Werner to the Parties’ Pending
Summary Judgment Pleadings and Evidence” (DE #98) is GRANTED.
Count II of the First Amended Complaint is hereby DISMISSED.
BACKGROUND
Plaintiff Linda J. Davis (“Davis”) had been employed by the
Hospital as a security officer for more than a decade when she
took FMLA leave for knee surgery in 2013.
When she returned to
work, she was informed that her usual position in the Hospital had
been assigned to another security officer.
The Hospital allegedly
assigned her to a different position that required more walking,
as well as pushing and lifting.
caused Davis’s knee to swell.
The increased walking allegedly
Davis requested to be returned to
her pre-FMLA leave position, which the Hospital denied.
Davis filed this action against the Hospital, asserting that
the Hospital violated the Family Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.
Her First Amended Complaint
(“Complaint”) alleges three causes of action:
interference
and
retaliation;
Count
II
-
accommodate; and Count III - ADA retaliation.
‐2‐
Count I - FMLA
ADA
failure
(DE #36.)
to
The
Hospital denies that it violated the FMLA or the ADA. The Hospital
filed the instant motion for summary judgment and two motions to
strike portions of the evidence Davis submitted in response to the
Hospital’s summary judgment motion.
The motions have been fully
briefed and are ripe for adjudication.
The parties also jointly
filed the “Stipulated Motion to Apply the Legal Standards Set Forth
in Ortiz vs. Werner to the Parties’ Pending Summary Judgment
Pleadings and Evidence,” which the Court will address below.
DISCUSSION
Motions to Strike
The Hospital’s first motion to strike urges the Court to
strike portions of Davis’s evidence based on her alleged failure
to disclose them during discovery.
(DE #93.)
The Hospital had
propounded an interrogatory to Davis seeking information regarding
“every unfavorable or adverse employment action which affected the
terms or conditions of [her] employment that [she] suffered or
experienced due to [the Hospital’s] action or conduct.”
1 at 7.)
(DE #94-
Davis answered this interrogatory by identifying five
allegedly adverse employment actions. (Id. at 8-9.) She confirmed
that her answer to this interrogatory was complete during her
deposition, and never supplemented this interrogatory answer.
The
Hospital contends that Davis’s response brief to its motion for
‐3‐
summary judgment raises new issues and evidence not previously
disclosed by Davis.
Federal Rule of Civil Procedure 26(e) provides that a party
who has responded to an interrogatory must supplement or correct
its response “in a timely manner if the party learns that in some
material respect the . . . response is incomplete or incorrect,
and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process
or in writing.”
Fed. R. Civ. P. 26(e)(1)(A).
If a party fails to
provide information as required by Rule 26(e), “the party is not
allowed to use that information . . . to supply evidence on a
motion, . . . unless the failure was substantially justified or is
harmless.”
Fed R. Civ. P. 37(c)(1).
“The exclusion of non-
disclosed evidence is automatic and mandatory under Rule 37(c)(1)
unless non-disclosure was justified or harmless.”
Musser v.
Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004) (citation
omitted).
The Court considers the following factors to determine
whether the failure was substantially justified or harmless: “(1)
the prejudice or surprise to the party against whom the evidence
is offered; (2) the ability of the party to cure the prejudice;
(3) the likelihood of disruption to the trial; and (4) the bad
faith or willfulness involved in not disclosing the evidence at an
earlier date.”
Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th
Cir. 2005) (citation omitted).
Here, there is no indication that
‐4‐
Davis acted willfully or in bad faith, and this litigation is not
at the trial stage.1
Thus, the Court’s inquiry focuses on the
prejudice to the Hospital.
The Hospital argues that it relied upon Davis’s interrogatory
answer in preparing its summary judgment motion, and thus, is
unduly prejudiced by the following evidence Davis disclosed in her
response to that motion:
1. Davis’s receipt of attendance points for absenteeism,
and statements made by the Director of the Security
Department, David Heard (“Heard”), regarding same.
2. Davis was allegedly told to hand over her computer pass
code to a co-worker, then was nearly written up for
handing over her pass code.
3. Heard’s alleged admonishment to the Security Department
and Davis that they are not to go to Human Resources for
problems, and that Davis was almost written up for
standing down on a call.
4. Heard allegedly prevented Davis from seeing her
personnel file and his alleged comments regarding same.
5. Davis’s allegations of being under “increased scrutiny”
and being “disciplined for things she had been allowed
to do,” aside from the adverse employment actions that
she disclosed prior to the close of discovery.
Davis does not deny that she failed to supplement her interrogatory
answer or disclose these actions during her deposition.
However,
1
In its reply brief, the Hospital asserts that Davis acted willfully or in bad
faith because she claims to be justified in not disclosing evidence that she
did not know was material until her current counsel prepared her response to
the Hospital’s summary judgment motion. The Court does not agree that this
demonstrates bad faith or willfulness because Davis was represented by different
counsel during discovery. Davis’s prior counsel withdrew his appearance after
discovery closed. (DE #62.) Davis’s current counsel filed her appearance two
months after the Hospital filed its motion for summary judgment, and
subsequently filed Davis’s response to that motion. (DE ##70, 81.)
‐5‐
the first of these actions was disclosed to the Hospital prior to
the close of discovery. The Hospital’s Statement of Material Facts
in support of its motion for summary judgment acknowledges that
Davis identified her February 17, 2014, Problem Solving Request
Form “addressing the assessment of two attendance points for
calling off of work” as a report, complaint or communication she
made to the Hospital regarding occurrences of discrimination,
retaliation or unlawful conduct.
(DE #69-1 at 4 (citing DE #69-4
at 6-7 (Davis’s interrog. answer no. 7).)
Because Davis disclosed
this action prior to the close of discovery, the Court DENIES the
Hospital’s motion to strike it.
As to the four other actions, Davis attempts to justify their
late disclosure by asserting that she first learned that these
actions were material when she went through the summary judgment
process with her current counsel.
remember
to
disclose
these
She insists that her failure to
actions
during
her
deposition
demonstrates that she is not an attorney and is not familiar with
what constitutes an adverse employment action under Federal law.
However, “[a] misunderstanding of the law does not equate to a
substantial
justification
disclosure deadline.”
for
failing
to
Musser, 356 F.3d at 758.
comply
with
the
Davis argues that
the Hospital is not prejudiced because it still employs nearly all
of the individuals identified in the Davis Affidavit and has full
access to people who can corroborate or deny her allegations.
‐6‐
She
suggests that the Hospital may ask her at trial about how she
learned of the materiality of the newly disclosed actions, i.e.,
when her new counsel was preparing her response to its summary
judgment motion.
“Motions to strike are heavily disfavored, and usually only
granted
in
circumstances
where
prejudice to the moving party.”
the
contested
evidence
causes
The Cincinnati Ins. Co. v. Lennox
Industs., Inc., No. 3:14-CV-1731, 2016 WL 495600, at *4 (N.D. Ind.
Feb. 9, 2016) (citing Kuntzman v. Wal-Mart, 673 F. Supp. 2d 690,
695 (N.D. Ind. 2009), and Gaskin v. Sharp Elec. Corp., No. 2:05CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007)).
The
Court agrees that the Hospital would be unduly prejudiced by
allowing
Davis
to
rely
on
adverse
employment
actions
first
disclosed in response to the Hospital’s summary judgment motion.
Davis’s late disclosure prevented the Hospital from having a full
and fair opportunity to investigate or seek additional discovery
relative to these actions.
Even if Davis did not learn of the
materiality of these alleged adverse employment actions until
reaching the summary judgment stage of litigation, she unduly
surprised the Hospital by simply presenting evidence of these
actions along with her opposition to summary judgment.
Davis’s
suggestion of allowing the Hospital to question Davis at trial
about when she learned of the materiality of these events does
nothing to cure the prejudice caused by the late disclosure.
‐7‐
The
Court therefore GRANTS the Hospital’s motion to strike references
to the four alleged adverse employment actions because they were
not disclosed during discovery.
The Hospital also maintains that it was prejudiced by the
following allegations:
1. Davis allegedly was not reinstated to her post-FMLA
leave position or an equivalent position upon her return
from leave in February 2013.
2. The Hospital allegedly failed to make a reasonable
accommodation as to Davis’s purported disability.
3. The Hospital allegedly failed to
interactive
process
with
Davis
accommodations.
engage in an
to
determine
As noted above, Rule 26(e) is violated where the information “has
not otherwise been made known to the other parties during the
discovery process or in writing.”
These first two allegations
form the basis of Davis’s FMLA and ADA claims against the Hospital.
The Complaint asserts that (1) the Hospital assigned Davis to a
different position after her FMLA leave for knee surgery, (2) her
new position required walking, pushing, and lifting, which caused
her knee to swell, and (3) the Hospital denied her request for
reassignment.
summary
(See DE #36 (Compl. ¶¶ 7, 10-14, 19, 27).)
judgment
briefing,
the
Hospital
proffers
In its
evidence
explaining the positions assigned to Davis and reasons therefore
(see, e.g., DE #69-1 at 81-82, 87-89), as well as evidence of the
Hospital’s efforts to reasonably accommodate Davis (see, e.g., id.
at 88 (Heard Aff. ¶67)).
Thus, the Hospital was aware of these
‐8‐
allegations before the close of discovery.
The third allegation
is an element of proof of Davis’s failure to accommodate claim.
See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir.
2005) (“the ADA requires that employer and employee engage in an
interactive process to determine a reasonable accommodation”).
The Hospital should not be surprised that Davis made these three
allegations in response to its motion for summary judgment.
And
while Davis has made these allegations, she must support them with
evidence in order to survive summary judgment.
See Gekas v.
Vasiliades, 814 F.3d 890, 896 (7th Cir. 2016) (“summary judgment
is the ‘put up or shut up’ moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to
accept its version of events”).
was
not
unduly
prejudiced
The Court finds that the Hospital
by
these
three
allegations,
and
therefore, DENIES the motion to strike them from Davis’s response
brief.
The Hospital’s second motion seeks to strike portions of the
Affidavit
of
Linda
J.
Davis
(“Davis
Affidavit”)
(DE
#81-3),
portions of Davis’s Statement of Genuine Disputes (DE #81-2), and
three exhibits to Davis’s Statement of Genuine Disputes. (DE #91.)
The Court will address the exhibits at issue first.
The Hospital moves to strike Davis’s Exhibits 3, 5 and 7.
(DE #81-4, DE #81-6, DE #81-8.)
Each of these exhibits is a
“Memorandum to File” purportedly prepared by EEOC Investigator
‐9‐
J.R. Andrews in connection with an onsite visit to the Hospital on
March 19, 2014. Exhibit 4 describes Andrews’s interview of Michael
Graham (“Graham”), the Hospital’s former Human Resources Director.
Exhibit 5 describes Andrews’s interview of Dave Slacian, the
Hospital’s Security Supervisor.
Exhibit 7 describes Andrews’s
interview of Heard, the Hospital’s Director of Security.
None of
the memoranda are signed or verified by Andrews.
“A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.”
Fed. R. Civ. P. 56(c)(2).
Thus, the
Rules “allow parties to oppose summary judgment with materials
that would be inadmissible at trial so long as facts therein could
later be presented in an admissible form.”
Olson v. Morgan, 750
F.3d 708, 714 (7th Cir. 2014). The Hospital relies upon Stolarczyk
ex rel. Estate of Stolarczyk v. Senator International Freight
Forwarding, LLC, 376 F. Supp. 2d 834 (N.D. Ill. 2005), in which
the court held that an “EEOC charge and notes of the interview
with [an interviewee] constitute inadmissible hearsay that is not
properly considered in the summary judgment analysis, given the
fact that [interviewee] would be unavailable as a witness at trial
and was never deposed in this case.”
Id. at 838 (emphasis added).
In that case, the interviewee had died before providing sworn
testimony in a deposition or at trial.
Here, in contrast, there
is no indication that Andrews, Graham, Slacian, or Heard will be
‐10‐
unavailable as witnesses at trial.
Indeed, the Hospital proffers
affidavits from Graham, Slacian, and Heard in support of its motion
for summary judgment.
(See DE #69-1 at 42-54, 61-65, 77-94.)
As
such, the facts set forth in Exhibits 3, 5, and 7 could later be
presented in an admissible form.
Therefore, the motion to strike
Davis’s exhibits is DENIED.
The Hospital argues that portions of the Davis Affidavit and
Statement of Genuine Disputes contain hearsay, are not based on
personal knowledge, and are speculative.
Davis responds that the
Hospital has failed to analyze whether any of the statements were
offered “to prove the truth of the matter asserted,” as required
to exclude them as hearsay.
Fed. R. Evid. 801(c)(2).
Regarding
her alleged lack of personal knowledge, Davis argues that the
statements at issue can be presented in an admissible form at
trial, as allowed by Rule 56(c)(2), through the live testimony of
Davis and other individuals identified in the Davis Affidavit.
The Hospital disputes Davis’s arguments.
The Court has reviewed the Davis Affidavit and Statement of
Genuine Disputes in their entirety.
It is the function of the
Court, with or without a motion to strike, to carefully review the
evidence
and
to
eliminate
from
consideration
any
argument,
conclusions, and assertions unsupported by the documented evidence
of record offered in support of the statement.
Wajvoda v. Menard,
Inc., No. 2:11–CV–393, 2015 WL 5773648, at *3 (N.D. Ind. Sept. 30,
‐11‐
2015); see, e.g., S.E.C. v. KPMG LLP, 412 F. Supp. 2d 349, 392
(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co.,
Inc., No. 04 C 5167, 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10,
2006).
When ruling on the motion for summary judgment, the Court
is capable of sifting through the evidence and considering it under
the applicable federal rules and case law, giving each statement
the credit to which it is due.
Therefore, the Hospital’s motion
to strike portions of the Davis Affidavit and Statement of Genuine
Disputes is DENIED as unnecessary.
Stipulated Motion
In connection with Davis’s FMLA retaliation claim, Davis
initially
argued
that
evidence”
would
permit
a
“convincing
a
retaliation by the Hospital.
reasonable
mosaic
trier
(DE #81 at 8-9.)
of
of
circumstantial
fact
to
infer
After the parties
had fully briefed the Hospital’s motion for summary judgment, the
Seventh Circuit held that “‘convincing mosaic’ is not a legal test”
in an employment discrimination claim.
Ortiz v. Werner Enters.,
Inc., No. 15-2574, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016).
Rather, the legal standard to be applied “is simply whether the
evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race . . . or other proscribed factor caused the
discharge or other adverse employment action.
considered as a whole.”
Id. at *4.
‐12‐
Evidence must be
On
September
14,
2016,
the
Hospital
and
Davis
jointly
submitted a “stipulated motion” asking the Court to apply the legal
standards set forth in Ortiz to the parties’ pending summary
judgment
pleadings
and
evidence.
(DE
#98.)
The
parties
“stipulate[d] that the legal authority and standards set forth in
Ortiz shall apply to the within filed Summary Judgment pleadings
as if set forth therein and same shall be incorporated into and
made a part of the parties’ Summary Judgment pleadings by reference
pursuant to this Stipulated Motion.”
(Id. ¶8.)
The parties also
agreed that their summary judgment pleadings “shall not be modified
except to the extent of the court’s application of law and legal
standards set forth in the Ortiz decision.” (Id. ¶9.) This motion
makes no effort to apply the facts of this case to the legal
standard set forth in Ortiz.
The Court has reviewed the parties’
summary
and
judgment
stipulations.
pleadings
evidence,
and
accepts
their
The parties’ Stipulated Motion (DE #98) is GRANTED.
The Court will disregard the parties’ references to the “convincing
mosaic” theory, and instead, will apply the legal standards set
forth in Ortiz, as incorporated by stipulation into the parties’
summary judgment briefs.
Motion for Summary Judgment
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
‐13‐
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing
law
will
properly
preclude
the
entry
of
summary
judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.
See Ogden v. Atterholt, 606 F.3d 355, 358
(7th Cir. 2010).
A party opposing a properly supported summary judgment motion
may not rely on allegations in her own pleading but rather must
“marshal and present the court with the evidence she contends will
prove her case.”
651,
654
(7th
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
Cir.
2010).
“[I]nferences
relying
on
mere
speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).
If the
nonmoving party fails to establish the existence of an essential
element on which he bears the burden of proof at trial, summary
judgment is proper.
Cir. 2006).
See Massey v. Johnson, 457 F.3d 711, 716 (7th
The Court “‘appl[ies] the summary judgment standard
‐14‐
with special scrutiny to employment discrimination cases, which
often turn on issues of intent and credibility.’”
Bob–Maunuel v.
Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 873 (N.D. Ill.
2014) (quoting Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871,
875 (7th Cir. 2002)).
Facts
In 2004, Davis was hired as a Security Officer (“Officer”) by
the Hospital, an acute care hospital facility in Munster, Indiana.
Davis’s job as an Officer included several job functions: (1)
providing a proactive visible deterrent to crime and to respond to
disturbances and take appropriate action; (2) apprehending violent
offenders
and
assisting
staff
with
restraining
patients;
(3)
walking patrols of the interior and exterior of the Hospital; (4)
assisting in evacuating, lifting, and moving patients; and (5)
responding to violent situations.
Officers are assigned to specific positions at the Hospital,
each of which is designated a number.
Before 2013, Davis worked
mostly – but not exclusively - in position 15, which is a “seated
position” located in the Hospital. Position 15 requires an Officer
to sit for half of the time and walk for half the time around the
area
and
into
the
adjacent
parking
building.
Other
seated
positions include positions 5, 6 and 7, which are located in the
Hospital and require an Officer to sit for approximately two-
‐15‐
thirds of the time, and walk around the area for one-third of the
time.
Positions 8 and B2 are “relief positions” whereby the
Officer walks through the Hospital inspecting various areas and
also relieves other Officers while they are on break.
requires
transporting
bodies
to
the
morgue,
and
exposing Officers to combative patients and guests.
Position 8
can
involve
The Command
Center position consists of sitting in a room watching security
camera feeds and answering the Security Department telephone.
Davis attests that Officers generally worked at the same
positions the majority of the time.
In addition to her own
experience, Davis identifies Officers who worked in particular
positions for time spans ranging from two to twelve years.
#81-3 at ¶34.)
(DE
The Hospital maintains that no specific position
is guaranteed to an Officer and that scheduling is based upon the
needs of the Security Department.
Davis’s Medical Issues and 2013 FMLA Leave
Beginning in 2008, Davis developed problems in her knees.
She was diagnosed with medial meniscus tears and patella femoral
articular
damage.
She
developed
a
limp,
had
problems
with
swelling, stiffness, and getting out of chairs, and was in pain.
Davis had arthroscopic surgery on her knees in 2008, but the
surgery did not help her pain. Davis requested several FMLA leaves
of absence over time, all of which were granted by the Hospital.
‐16‐
At issue in this case is Davis’s FMLA leave from January 10,
2013,
to
February
27,
2013,
during
which
she
had
a
second
arthroscopic surgery on her knee (“2013 FMLA leave”).
Davis
expected to be assigned to position 15 when she returned from her
2013 FMLA leave, as she had after other FMLA leaves.
However, the
Hospital had assigned position 15 to another Officer.
Director of
Security Heard attests that he assigned Officer Major Higgins to
position 15 due to his age (78 years), diminished eyesight for
driving, and his desire to be indoors during the winter.
1 at 91-92.)
(DE #69-
Officer Higgins had previously been assigned to
driving security vehicles.
Heard attests that he believed that
position 15 would be better for Officer Higgins, without any intent
of harming Davis.
(Id.)
Upon returning to work in February 2013, Davis provided a
note from her doctor stating that she was “[s]ufficiently recovered
to resume a normal workload” on February 27, 2013.
47.)
(DE #69-4 at
Davis also submitted a fitness for duty certificate dated
February 27, 2013, indicating that she was “able to perform all
the functions of his/her job.”
(Id. at 49.)
Davis testified that
before her doctor released her to return to work, he asked her
about her job and what she was doing in that position.
at 39-40.)
‐17‐
(DE #69-3
Davis’s Work Schedule After 2013 FMLA Leave
When Davis returned to work after her 2013 FMLA leave, the
Hospital assigned Davis to relief positions 8 and B2 for her first
two days at work.
Davis worked in those positions, though her
knee started swelling due to the walking required in position 8.
Working in position B2 caused Davis no concern, or pain or problem
with her knees. (DE #69-3 at 196-97.) Davis repeatedly complained
to Heard about her swollen knee and asked him if she could be
reassigned to position 15.
Davis attests that Heard told her that
she could not work if she had any restrictions.
(DE #81-3 at ¶15.)
She attests that on the second or third day after she returned
from FMLA leave, Heard suggested that she be assigned to the
Command Center position, and she agreed, but the position never
materialized.
(Id. at ¶13.)
Davis was assigned to a seated
position for the first week of March 2013.
On March 6, 2013, Davis
participated in an accommodation conference with Heard and Human
Resources Director Graham.
At that meeting, Davis confirmed that
she was able to work without restrictions and could perform her
essential job functions.
Davis requested reassignment to position
15 or another position that would not aggravate her still-healing
knee.
After the March 6 accommodation meeting, Davis was assigned
to seated positions in March and April.
(DE #81-5 at 4-5.)
In
April 2013, Davis applied for and was granted intermittent FMLA
‐18‐
leave.
Davis was assigned to seated positions for most of May
2013, with the exception of four days at relief position B2.
at 6.)
(Id.
As before, working in position B2 caused Davis no concern,
pain or problem with her knees. (DE #69-3 at 197.)
In June 2013,
she was assigned to seated positions, with the exception of one
day at relief position B2.
(DE #81-5 at 7.)
In July 2013, Davis was assigned to seated positions, with
the exception of one day at relief position 8 on July 11, 2013.
(Id. at 9.)
Davis testified that working in position 8 on that
day was “not as bad,” because she was able go to a post and relieve
someone at that post.
(DE #69-3 at 198.)
Davis provided the
Hospital with a physician’s note dated July 24, 2013, stating that
Davis “needs [a] table to keep her limited, to keep her feet on
the floor.”
(DE #69-5 at 3.)
The note did not indicate that she
had a walking restriction, and Davis never submitted a physician’s
note indicating that she needed to elevate her leg.
192.)
(DE #69-3 at
A fitness for duty certificate dated July 25, 2013, limited
Davis’s walking, bending and reaching to less than one hour, and
stated that she must “keep feet flat on the floor while sitting
down with adequate room for knees while bending.”
(DE #81-10.)
The Hospital held an accommodation meeting on July 25, 2013, at
which Davis requested a desk and chair at her seated positions.
The
Hospital
agreed
and
replaced
the
positions 5 and 6 with chairs and desks.
‐19‐
stools
and
podiums
at
After the accommodation
meeting, Davis was not assigned to positions 5 and 6 until the
chairs and desks were in place.
chairs and desks.
Positions 7 and 15 always had
In 2013, Davis worked 196 shifts in seated
positions, three shifts in position 8, and six shifts in position
B2.
In 2014, Davis worked 137 shifts in seated positions and 19
shifts in position 8.
Davis requested and received FMLA leave in
August 2014, during which she underwent knee replacement surgery.
In anticipation of Davis’s return to work, the Hospital held
another
accommodation
conference
on
January
9,
2015.
Davis
provided the Hospital with a doctor’s note indicating that she was
able to return to work on January 12, 2015, with “no crawling, no
climbing, no lifting [over] 50 [pounds], limited walking per
[patient] tolerance.”
(DE #69-5 at 6.)
The Hospital agreed that
Davis could avoid assignment to relief positions, would be assigned
to seated positions, and would not need to respond to altercations,
walk for more than a half-hour, crawl, climb, or lift heavy
objects. (DE #69-1 at 38-39.)
When Davis returned to work, she
was assigned to relief position 8, but was told she could work at
a seated position.
She worked in position 8 for part of the day,
then switched to a seated position.
In 2015, Davis worked 187
shifts in seated positions and one shift in position 8.
‐20‐
Corrective Actions, EEOC Charge, and Problem Solving Requests
Prior to her 2013 FMLA leave, Davis had never received a
Corrective Action.
Corrective
Action
accommodation
On March 18, 2013, Davis received her first
for
meeting
Corrective Action”).
secretly
with
recording
Heard
and
her
March
2013
(“March
Graham
6,
2013
Davis secretly recorded this meeting because
she wanted to record Heard saying that he would not let her work
if she had restrictions.
(DE #81-3 at ¶17.)
Davis admits that
she secretly recorded this meeting, and that she later lied by
telling
Graham
that
she
had
not
recorded
the
meeting.
The
Hospital’s Corrective Action Policy states that falsifying any
verbal or written statement and recording conversations without
supervisory
approval
and
the
prior
approval
of
conversation
participants are offenses requiring corrective action.
Davis
attests that Graham told her that he had no problems with her
recording the meeting, but that he probably would have to issue a
Corrective Action because Heard was upset about it.
(Id. at ¶20.)
This Corrective Action did not result in a suspension for Davis.
On June 21, 2013, Davis received her second Corrective Action
for leaving her post for eight minutes and using a personal laptop
computer (“June 2013 Corrective Action”).
On June 18, 2013, the
Command Center received an anonymous call that no Officer was on
duty at position 7.
The Hospital’s surveillance camera recorded
Davis using her laptop computer in a visitor area 15 feet away
‐21‐
from her post for 43 minutes.
When Davis asked another Officer on
duty to leave position 7, the post was left unoccupied for eight
minutes.
Hospital policy provided that outside laptop computers
are not allowed on Hospital property, and disciplinary actions
would be given to Officers who use outside laptops during their
work shift.
Davis received a three-day suspension for violating
the Hospital’s policy on electronic devices and failing to be at
her post for eight minutes.
Davis testified that she had understood that Officers could
use laptop computers during lunch and breaks.
(DE #69-3 at 119-
20.) Davis attests that she regularly saw other Officers use their
laptops and other electronic devices at work, which caused her to
believe that using a laptop at work was not against the rules.
(DE #81-3 at ¶29.)
She allegedly witnessed Officer Charlie Walker
using a portable DVD player to watch movies at his post in 2011
and 2012, and recalls seeing Heard speaking with Officer Walker at
this post while a movie was playing. Davis attests that soon after
she returned from her 2013 FMLA leave, supervising Officer Dan
Belzinski saw Davis with her laptop computer in its case at her
post, and told her “don’t worry about” having it at work.
¶31.)
(Id. at
Based on his assurances, Davis spent her break that day
using her laptop computer in the visitor area near her post.
Several months later, Davis received the June 2013 Corrective
‐22‐
Action for using her laptop computer while sitting in that same
area.
Davis also maintains that Officers are allowed to leave their
posts without repercussions.
to
leave
their
posts
to
She notes that Officers are allowed
use
the
restroom
without
permission or someone to relieve them temporarily.
obtaining
Davis attests
that she once heard over the radio that Officers Walker and Jenkins
left their posts when Officer Walker’s vehicle was in the process
of being stolen.
On June 28, 2013, Davis submitted a Problem Solving Request
Form to the Hospital’s Human Resources Department seeking to have
the March 2013 Corrective Action and the June 2013 Corrective
Action removed, and to be paid for her three-day suspension. After
a meeting between Davis and the Human Resources Department, the
Hospital upheld her suspension, but noted that Graham was asked to
further review her accommodation to position 15.
35.)
(DE #69-4 at
On July 19, 2013, Davis filed an EEOC charge against the
Hospital asserting that it failed to accommodate her after her
2013 FMLA leave in violation of the ADA.
Davis amended the EEOC
charge against the Hospital on November 5, 2013.
On February 17, 2014, Davis submitted a Problem Solving
Request Form regarding two attendance points assessed against
Davis for absenteeism.
Davis maintains that she had requested and
received paid time off (“PTO”) from a supervisor for the days she
‐23‐
was not at work.
When Davis realized that she had been assessed
attendance points for those PTO days, she was directed by the Human
Resources Department to ask Heard about it. When Davis asked Heard
why she received the attendance points, Heard allegedly responded,
“I told you to stay out of H.R.
You’ve been warned. . . .
been warned for the last time.”
(DE #81-3 at ¶¶44-45; DE #69-3 at
156.)
You’ve
Heard attests that he had assessed the attendance points
without knowing that Davis had received supervisor approval for
PTO.
(DE #69-1 at 92 (Heard Aff. ¶88).)
Once he realized his
mistake, the points were removed from Davis’s record. (Id.) Heard
denies threatening or intimidating Davis.
(Id. (Heard Aff. ¶89).)
Davis received only a 1% merit increase based her performance
evaluation dated February 19, 2014, which referenced the two
Corrective Actions she received in 2013, and indicated that Davis
needed improvement in the category of “Dignity.”
54; see DE #69-1 at 85 (Heard Aff. ¶50).)
(DE #69-5 at 50-
Davis received a 2%
merit increase based on her performance evaluation dated February
16, 2015.
She continues to be employed by the Hospital as an
Officer.
Analysis
FMLA Claim - Interference
Count
I
of
the
Complaint
alleges
that
the
Hospital
discriminated against Davis for exercising her FMLA rights.
‐24‐
To
prove an FMLA interference claim, a plaintiff must show that: (1)
she was eligible for FMLA protection; (2) her employer was covered
by the FMLA; (3) she was entitled to FMLA leave; (4) she provided
sufficient notice of her intent to take leave; and (5) her employer
improperly denied benefits to which she was entitled.
Ryl–Kuchar
v. Care Ctrs., Inc., 565 F.3d 1027, 1030 (7th Cir. 2009).
The
parties do not contest that Davis was an eligible employee under
the FMLA, that the Hospital is covered by the FMLA, that Davis was
entitled to FMLA leave, or that she provided sufficient notice of
her intent to take leave.
The only issue is whether the Hospital
improperly denied benefits to which Davis was entitled.
The Hospital maintains that it did not deny FMLA benefits to
Davis because it always granted Davis’s requests for FMLA leave.
But “the ways in which an employer may interfere with FMLA benefits
are not limited simply to the denial of leave.
Interference also
encompasses ‘us[ing] the taking of FMLA leave as a negative factor
in employment actions’ and ‘discouraging an employee from using
such leave.’”
Preddie v. Bartholomew Consolidated Sch. Corp., 799
F.3d 806, 818 (7th Cir. 2015) (quoting 29 C.F.R. § 825.220(c),
(b)).
Upon returning from FMLA leave, an employee is entitled “to
be restored by the employer to the position of employment held by
the employee when the leave commenced” or “an equivalent position
with equivalent employment benefits, pay, and other terms and
conditions of employment.”
29 U.S.C. § 2614(a)(1).
‐25‐
“An employee
is entitled to such reinstatement even if the employee has been
replaced or . . . her position has been restructured to accommodate
the employee’s absence.”
29 C.F.R. § 825.214.
However, the right
to reinstatement is not absolute; the employee must establish she
is entitled to the benefit she claims.
Kohls v. Beverly Enters.
Wisc., Inc., 259 F.3d 799, 804 (7th Cir. 2001).
Once she has done
so, “[t]he employer may then present evidence to show that the
employee would not have been entitled to her position even if she
had not taken leave.”
Id.
It is undisputed that Davis was entitled to reinstatement to
the position of Officer upon returning from her 2013 FMLA leave,
and that the Hospital reinstated Davis as an Officer with the same
benefits and pay.
Davis argues that the Hospital violated FMLA by
failing to assign her to the same position that she had worked as
an Officer prior to her 2013 FMLA leave, or an equivalent position.
Under the FMLA, an employee “is ordinarily entitled to return to
the same shift or the same or an equivalent work schedule.”
C.F.R. § 825.215(e)(2).
29
An equivalent position “must involve the
same or substantially similar duties and responsibilities, which
must
entail
substantially
equivalent
responsibility, and authority.”
equivalency
requirement
“does
skill,
effort,
29 C.F.R. § 825.215(a).
not
extend
to
intangible, or unmeasurable aspects of the job.”
825.215(f).
‐26‐
de
The
minimus,
29 C.F.R. §
Davis relies upon Breneisen v. Motorola, Inc., 512 F.3d 972
(7th Cir. 2008), to assert that genuine issues of material fact
exist as to whether the Hospital violated FMLA by failing to
assigned Davis to her pre-FMLA leave position or an equivalent
position.
In Breneisen, the plaintiff was reassigned to a new
position after returning from FLMA leave.
The Seventh Circuit
held that the plaintiff had provided sufficient evidence that the
new position was not equivalent to the plaintiff’s pre-FMLA leave
position to avoid summary judgment.
Id. at 977.
While both
positions provided the same pay and benefits, they had different
responsibilities.
Id.
The plaintiff’s prior position involved
administrative functions, while his new position involved manual
tasks and had less prestige and visibility.
Id.
The plaintiff
also proffered sufficient evidence that his position would not
have been eliminated if he had not taken leave.
Id. at 978.
It is undisputed that Davis worked mostly at position 15
before her 2013 FMLA leave, and that she was not assigned to
position 15 upon returning from her 2013 FMLA leave.
Davis
contends that the positions to which Davis was assigned after her
2013 FMLA leave differed materially from position 15.
As an
Officer, Davis’s responsibilities included walking patrols of the
interior and exterior of the Hospital; assisting in evacuating,
lifting,
and
situations.
moving
patients;
and
responding
to
violent
While these responsibilities apply to all Officers,
‐27‐
the evidence suggests that an Officer working in a particular
position may be called upon to fulfill certain responsibilities
more often.
Position 15 is limited to 50% walking, and does not
include transporting bodies to the morgue or exposure to combative
patients and guests.
Davis asserts that the Command Center
position is “[t]he only post that is arguably equivalent in terms
of benefits, pay, and terms and conditions of employment” to
position 15.
(DE #81 at 7.)
Heard allegedly offered Davis the
Command Center position after her 2013 FMLA leave, the position
never materialized.
Instead, Davis was assigned to position 8,
which was a relief position that involved walking, transporting
bodies to the morgue, and possible exposure to combative patients
and guests.
Davis contends that position 15 was so markedly
different from other positions that the Hospital assigned Officer
Higgins to it to accommodate his advanced age and deteriorating
eyesight.
The
Hospital
maintains
that
Davis
had
the
same
or
substantially similar duties and responsibilities upon returning
from her 2013 FMLA leave.
It asserts that because Davis was not
called upon to fulfill the particular duties required of position
8, her duties were substantially similar in position 15 and
position 8.
Davis identifies no incidents in which she had to
deal with a combative patient or guest, and did not recall any
incidents in which she was asked to transport a body in 2013 or
‐28‐
2014.
(DE #69-3 at 142-43.)
Davis testified that if she felt
that she should not have been pushing a wheelchair or anything
else, she did not push it.
(Id. at 144.)
The Hospital notes that
Davis was also assigned to seated positions 5, 6, and 7, which
require less walking than position 15.
Considering the evidence
in the light most favorable to Davis, the Court finds that genuine
issues of material fact exist as to whether the positions assigned
to Davis after her 2013 FMLA leave were substantially similar to
her pre-FMLA leave position.
See Hunt v. Rapides Healthcare Sys.,
LLC, 277 F.3d 757, 766–67 (5th Cir. 2001) (finding questions of
fact precluded summary judgment as to job equivalency when nurse
who was assigned to work day shifts returned from FMLA leave and
was offered a night shift position), abrogated on other grounds by
Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 126
S. Ct. 2405, 165 L. Ed. 2d 345 (2006).
Davis maintains that the Hospital offers no evidence that it
assigned Officer Higgins to position 15 for any reason other than
to cover for Davis’s absence, or that it would have reassigned
Davis to another position and assigned Officer Higgins to position
15 even if Davis had not taken FMLA leave.
The Hospital presents
evidence that it assigns positions based on the needs of the
Security Department and the availability of staff, and that Heard
assigned Officer Higgins to position 15 because of his advanced
age and diminishing eyesight.
Heard attests that this decision
‐29‐
was made without regard to Davis’s medical condition or FMLA leave.
The Hospital does not address whether it would have reassigned
Davis to another position in order to assign Officer Higgins to
position 15, even if Davis had not taken FLMA leave.
Davis contends that an issue of fact exists as to whether
Officers
were
strange.”
assigned
to
(DE #81 at 6.)
new
positions
The Court agrees.
“absent
something
The Hospital does
not deny that it had a general practice of assigning Officers to
the same positions for years, but contends that Officers may be
scheduled to work in any position and are not guaranteed a specific
position.
Davis does not contest that Officers have no right to
a particular position, but maintains that Officers generally hold
their assigned positions for years.
Davis proffers her own
experience of being assigned mostly to position 15 for five years,
even after returning from other FMLA leaves.
She also witnessed
other Officers being assigned to the same positions for several
years.
The Court finds that genuine issues of material fact exist
as to whether Davis was entitled to return to position 15 or an
equivalent position after her 2013 FMLA leave.
at
766
(questions
of
fact
precluded
See Hunt, 277 F.3d
summary
judgment
where
“although the Medical Center did not formally hire nurses for
particular shifts, the routine practice was to hire nurses to work
only on specific shifts” and plaintiff had been working as a
designated day shift nurse for several years).
‐30‐
A reasonable
inference can be drawn that Davis would not have been reassigned
absent her taking FMLA leave, making summary judgment on this point
inappropriate.
FMLA Claim – Retaliation
Count I of the Complaint also alleges that the Hospital
retaliated against Davis in violation of the FMLA. The FMLA “makes
it unlawful for an employer to retaliate against an employee who
exercises his FMLA rights.”
Carter v. Chicago State Univ., 778
F.3d 651, 657 (7th Cir. 2015).
A plaintiff may proceed under the
direct or indirect methods of proof when attempting to establish
an FMLA retaliation claim.
Under the direct method, the only
method Davis asserts, “a plaintiff must establish that 1) he
engaged in a protected activity; 2) his employer took an adverse
action against him; and 3) there is a causal connection between
his
protected
action.”
activity
and
his
employer’s
adverse
employment
Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th
Cir. 2009).
The Seventh Circuit recently explained that the legal
standard to be applied “is simply whether the evidence would permit
a reasonable factfinder to conclude that the plaintiff’s race . .
. or other proscribed factor caused the discharge or other adverse
employment action.
Evidence must be considered as a whole, rather
than asking whether any particular piece of evidence proves the
case by itself—or whether just the ‘direct’ evidence does so, or
the ‘indirect’ evidence.”
Ortiz, 2016 WL 4411434, at *4.
‐31‐
Davis maintains that the Hospital retaliated against her by
reassigning her from position 15 to a position that required “a
lot of walking, transporting bodies, running errands, and walking
to different posts to relieve other Security Officers,” i.e.,
position 8.
(DE #81 at 8.)
“A schedule change may constitute a
materially adverse action when there is evidence that the defendant
sought to exploit a ‘known vulnerability’ by altering a plaintiff’s
work schedule upon return from FMLA leave.”
Wink v. Miller
Compressing Co., No. 14-CV-367, 2015 WL 3454220, at *7 (E.D. Wis.
June 1, 2015) (citing Langenbach v. Wal–Mart Stores, Inc., 761
F.3d 792, 799 (7th Cir. 2014) and Washington v. Ill. Dept. of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).
It is undisputed
that Heard knew that Davis was recovering from knee surgery upon
returning from her 2013 FMLA leave.
According to Davis, Heard
exploited this “known vulnerability” by assigning her to position
8, which required her to walk around the Hospital and caused her
knee to swell.
The Court finds that a genuine issues of fact exist as to
whether Davis’s reassignment was a materially adverse action.
As
explained above, an employee is “ordinarily entitled to return to
the same shift or the same or an equivalent work schedule.”
C.F.R. § 825.215(e)(2).
29
Prior to her 2013 FMLA leave, Davis was
assigned mostly to position 15.
Upon returning from FMLA leave,
Davis was reassigned to relief positions 8 and B2, and several
‐32‐
seated positions in 2013.
Considering the evidence in the light
most favorable to Davis, the possibility of being reassigned to a
different
position
could
dissuade
a
reasonable
employee
from
exercising her rights under the FMLA.
Davis must also prove a causal connection between the adverse
employment action and her FMLA leave.
Davis attempts to do so by
arguing that two Corrective Actions demonstrate that she was
treated differently from similarly-situated Officers.
She asserts
that she received the March 2013 Corrective Action for secretly
recording her meeting with Heard and Graham despite the fact that
Graham subsequently told her that he had no objection to the
recording.
She infers that because Graham had no objection, she
should not have received the Corrective Action, though she admits
that Heard “was furious” about being recorded.
Hospital
warranted.
responds
that
this
Corrective
(DE #81-3 at ¶20.)
Action
was
clearly
Davis admitted that she secretly recorded the meeting,
and that she later lied by telling Graham that she had not recorded
the meeting, in violation of Hospital policy. Davis does not offer
evidence of any other Officer who secretly recorded a meeting, or
lied about doing so.
Davis also relies upon her June 2013 Corrective Action for
being away from her post and using her laptop computer at work in
violation of Hospital policy.
Davis maintains that other Officers
were allowed to leave their posts without repercussions. She notes
‐33‐
that Officers leave their posts to use the restroom, and that two
Officers once left their posts when an Officer’s vehicle was being
stolen.
Davis
had
also
allegedly
received
assurances
from
supervising Officer Belzinski that she should not worry about
having her laptop computer at work, and witnessed other Officers
using laptop computers and other electronic devices at work.
In response, the Hospital argues that the Officers identified
by
Davis
are
not
directly
comparable
to
her.
But
more
fundamentally, Davis must show that the comparable Officers did
not take FMLA leave.
Hull v. Stoughton Trailers, LLC, 445 F.3d
949, 952 (7th Cir. 2006) (affirming summary judgment on FMLA
retaliation claim where “Hull fails to present any evidence on the
critical
independent
comparators
did
(or
variable
did
here:
not)
FMLA
leave
(i.e.,
take
FMLA
leave)”);
see
which
also
Langenbach, 761 F.3d at 803 (the similarly-situated analysis under
the direct method “is substantially the same as the analysis under
the indirect method”).
Davis makes no effort to establish that at
least one of the other Officers “is directly comparable to [her]
and did not take FMLA leave.”
original).
Hull, 445 F.3d at 952 (emphasis in
Thus, although the evidence presented by Davis may
establish that she was punished with greater severity than other
Officers for violating Hospital policy, it does not establish a
similarly situated comparator group.
‐34‐
Davis cites Benuzzi v. Board of Education of the City of
Chicago, 647 F.3d 652 (7th Cir. 2011), for the proposition that a
reasonable jury could find that these Corrective Actions have the
power to dissuade a reasonable employee from pursuing her rights.
In Benuzzi, the Seventh Circuit held that a “sweeping Notice of
Disciplinary Action citing petty misdeeds that allegedly occurred
months ago” and a memorandum restricting the plaintiff’s hours at
work, which were given to the plaintiff the day after she gave her
deposition, “could constitute an adverse action within the meaning
of the direct method of proving retaliation.”
(citation
omitted).
The
court
explained
647 F.3d at 665
that
a
“reasonable
employee could be deterred from filing a discrimination complaint
or participating in a deposition if doing so would be followed by
the (highly probable) possibility of discipline for activities he
may have long forgotten and the limitation of his ability to be
present at his workplace.”
Id.
The Court finds Benuzzi to be distinguishable.
In Benuzzi,
the employee received the disciplinary action for “long forgotten”
activities immediately after the employee’s protected action.
Id.
Here, Davis received the Corrective Actions shortly after she
violated the Hospital’s policies.
The June 2013 Corrective Action
occurred several months after Davis returned from her 2013 FMLA
leave.
The March 2013 Corrective Action was issued on March 18,
2013, two weeks after Davis secretly recorded her meeting with
‐35‐
Graham and Heard, and three weeks after her return from FMLA leave.
See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 221 (7th Cir.
2015) (“temporal proximity or suspicious timing alone is rarely
sufficient to overcome a motion for summary judgment”).
The Court
finds that the timing of the March 2013 Corrective Action is not
sufficient to overcome summary judgment, given the undisputed
evidence that Davis violated Hospital policy by secretly recording
the meeting, and lying about it.
Davis also relies upon her confrontation with Heard regarding
his assessment of attendance points against her as evidence of the
Hospital’s retaliation for her FMLA leave.2
Davis maintains that
when she asked Heard why she had received attendance points for
her PTO days, Heard responded, “I told you to stay out of HR. . .
.
You’ve been warned for the last time.”
(DE #69-3 at 156.)
Davis insists that Heard’s statements constitute an admission that
he used write-ups like the Corrective Actions to retaliate against
her for bringing her job issues, including her reassignment after
her FMLA leave, to the Human Resources Department.
In response,
the Hospital ignores Heard’s alleged statements to Davis. Instead,
the Hospital maintains that the attendance points are not an
adverse employment action because Heard told Davis that the points
2
As noted above in the Court’s decision on the Hospital’s motions to strike (DE
#91, DE #93), the Court disregards other evidence proffered by Davis that was
not produced before the close of discovery, or is otherwise inadmissible hearsay
or not based on personal knowledge.
‐36‐
would be removed from her record, and that they were in fact
removed.
Considering the evidence in the light most favorable to
Davis, the Court finds that Heard’s statements creates a triable
issue as to whether there is a causal link between Davis’s pursuit
of her FMLA rights and her assigned positions upon return from
FMLA leave.
As a result, the Hospital’s motion for summary
judgment on Count I is DENIED.
ADA Failure to Accommodate Claim
Count II of the Complaint alleges that the Hospital violated
the ADA by reassigning Davis to a position that required walking,
pushing, and lifting, and by denying her request to be reassigned
to her pre-surgical position or a position where she could elevate
her leg.3
Under the ADA, as amended by the ADA Amendments Act of
2008, it is unlawful for an employer to “discriminate against a
qualified individual on the basis of disability.”
12112(a).
Discrimination
includes
“not
making
42 U.S.C. §
reasonable
accommodations to the known physical . . . limitations of an
otherwise
qualified
individual
with
a
disability”
who
is
an
3
The Hospital argues that the Complaint fails to assert a failure to accommodate
claim under the ADA, and thus, Davis has waived this claim. (DE #68 at 4-5.)
The Court disagrees because the Complaint alleges that Davis requested
reassignment because her assignment caused her knee to swell, and that the
Hospital refused her request. The Hospital also maintains that the Complaint
fails to allege a claim based on a hostile work environment. Davis appears to
concede this point, as she fails to reply to this argument, and thereby, waives
any hostile work environment claim. See Johnson v. Gen. Bd. of Pens. & Health
Benefits of United Methodist Church, 733 F.3d 722, 729 (7th Cir. 2013) (holding
that arguments not raised in opposition to a motion for summary judgment are
waived).
‐37‐
employee,
unless
the
employer
can
“demonstrate
that
the
accommodation would impose an undue hardship on the operation of
the business.”
42 U.S.C. § 12112(b)(5)(A).
“To establish a claim
for failure to accommodate, a plaintiff must show 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.”
797 (citation omitted).
Sears, Roebuck & Co., 417 F.3d at
The parties do not dispute that Davis is
a qualified individual with a disability, or that the Hospital was
aware that Davis had a disability related to her knees.
parties
dispute
whether
the
Hospital
reasonably
The
accommodated
Davis’s disability.
“[T]he ADA requires that employer and employee engage in an
interactive process to determine a reasonable accommodation.
If
a disabled employee shows that her disability was not reasonably
accommodated,
the
employer
will
be
liable
only
if
it
bears
responsibility for the breakdown of the interactive process.”
(internal citations and quotation marks omitted).
Id.
An employee
must clarify the extent of her medical restrictions in order to
impose liability on the employer for its failure to provide a
reasonable accommodation.
(7th Cir. 2012).
Hoppe v. Lewis Univ., 692 F.3d 833, 840
A reasonable accommodation occurs when “the
employer does what is necessary to allow the employee to work in
reasonable comfort.”
Id.
“An employer need only provide a
‐38‐
qualified individual with a reasonable accommodation, not the
accommodation the employee would prefer.”
Id. (citation, internal
quotation marks and brackets omitted).
Davis admits that the Hospital initiated the interactive
process when she returned to work on February 27, 2013, but insists
that Heard caused problems with that process.
Davis maintains
that Heard refused to assign her to position 15, insisted that
there were no “light duty” positions in the Security Department,
and knowingly assigned her to positions that aggravated her stillhealing knee.
program
in
The Hospital maintains that it has no “light duty”
the
Security
Department.
Davis
asserts
that
a
reasonable jury could conclude that position 15 and the Command
Center position were proof that “light duty” positions existed in
that Department.
But “even if ‘light duty’ would have been
[Davis’s] preferred accommodation, the ADA does not entitle a
disabled employee to the accommodation of [her] choice.
Rather,
the law entitles [her] to a reasonable accommodation in view of
[her] limitations and [her] employer’s needs.”
Swanson v. Vill.
of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015).
It is undisputed that Davis was assigned to position 8 on her
first work day after her 2013 FMLA leave.
That day, Davis
presented
was
a
doctor’s
note
stating
that
she
sufficiently
recovered to resume a normal workload, and a fitness for duty
certificate providing that she could perform all functions of her
‐39‐
job.
Davis attests that she worked in position 8 though her knee
started swelling, and kept pressing to be assigned to position 15.
Davis was assigned to relief position B2 for one day, which did
not cause her problems. She then was assigned to a seated position
for
the
first
week
of
March
2013.
At
the
March
6,
2013,
accommodation meeting, Davis confirmed that she was able to return
to work without restrictions and perform the essential functions
of her position, and requested to be reassigned to position 15.
After this accommodation meeting, Davis was assigned mostly to
seated positions in March, April, May, June and July, with the
exception of five days at relief position B2 in May and June.
Davis worked at position 8 on July 11, which she testified was
“not as bad” because she relieved someone at his post.
In mid-July 2013, Davis submitted a doctor’s note to the
Hospital stating that she needs a table and to keep her feet flat
on the floor.4
The Hospital called an accommodation conference on
July 25, 2013, at which time Davis indicated that she was able to
perform all job functions, and requested a desk and chair at her
assigned seated positons.
The Hospital agreed and replaced stools
4
While the Complaint alleges that Davis’s disability required that she elevate
her leg, it is undisputed that Davis never presented the Hospital with a doctor’s
note indicating that she needed to elevate her leg. Davis does not respond to
the Hospital’s argument regarding this alleged medical restriction.
As a
result, Davis has waived any argument that the Hospital failed to reasonably
accommodate this particular medical restriction. See Johnson, 733 F.3d at 729
(holding that arguments not raised in opposition to a motion for summary
judgment are waived).
‐40‐
and podiums with desks and chairs at positions 5 and 6.
Davis was
not assigned to those positions until the accommodations were in
place. Thereafter, Davis continued to be assigned mostly to seated
positions.
Even taking these facts in the light most favorable to
Davis,
is
it
undisputed
that
the
Hospital
engaged
in
the
interactive process with Davis regarding her known disability and
need
for
reasonable
accommodation.
While
Davis
would
have
preferred to work at position 15, the Hospital need only provide
Davis with “a reasonable accommodation, not the accommodation
[she] would prefer.”
Hoppe, 692 F.3d at 840.
Davis relies on Heard’s alleged statements that Officers were
not allowed to work with restrictions as evidence of the Hospital’s
failure to reasonably accommodate her disability.
requires
“all
employees
to
return
to
work
A policy that
without
medical
restrictions” may be referred to as a “100% healed policy.”
Mazzacone v. Tyson Fresh Meats, Inc., No. 3:13-CV-897, 2016 WL
3876903, at *5 (N.D. Ind. Jul. 18, 2016).
A 100% healed policy
constitutes a per se violation of the ADA because it “prevents
individual assessment . . . [and] necessarily operates to exclude
disabled people that are qualified to work.”
Steffen v. Donahoe,
680 F.3d 738, 748 (7th Cir. 2012) (citing Powers v. USF Holland,
Inc., 667 F.3d 815, 819 (7th Cir. 2011)).
However, Davis must
provide evidence that the Hospital applied a 100% healed policy
during the time period at issue.
See Powers, 667 F.3d at 823 n.8
‐41‐
(“Powers presented sufficient evidence that Holland applied a 100%
healed policy”) (emphasis added).
Summary judgment is appropriate
where a plaintiff does not proffer evidence that would permit a
jury
to
conclude
that
the
employer
“eschewed
assessment in favor of a 100% healed policy.”
an
individual
Mazzacone, 2016 WL
3876903, at *6.
Davis
attests
that
Heard
told
her
that
if
she
had
any
restrictions, he did not have a job for her, and proffers a
memorandum of an EEOC onsite visit which notes that Heard stated,
“no one can return to work with restrictions,” and “employees must
return with no restrictions,” during an interview with the EEOC
investigator. (DE #81-8 at 1.) But even considering this evidence
in the light most favorable to Davis, she proffers no evidence
from which a jury could conclude that the Hospital applied this
type of policy to Davis and required her to be fully healed prior
to returning to work.
See Mazzacone, 2016 WL 3876903, at *5-*6.
It is undisputed that Davis returned to work after her 2013 FMLA
leave, and that the Hospital held accommodation meetings for Davis,
assigned her mostly to seated positions thereafter, and made other
reasonable
accommodations
to
allow
Davis
to
work
in
those
positions, including replacing podiums and stools with desks and
chairs to accommodate her disability. For these reasons, the Court
GRANTS the Hospital’s motion for summary judgment as to Count II.
‐42‐
ADA Retaliation Claim
Count
III
of
the
Complaint
alleges
that
the
retaliated against Davis in violation of the ADA.
Hospital
“The ADA
prohibits employers from retaliating against employees who assert
their right under the act to be free from discrimination.”
Povey
v. City of Jeffersonville, Ind., 697 F.3d 619, 624 (7th Cir. 2012)
(citing 42 U.S.C. § 12203(a)).
“Employers are forbidden from
retaliating against employees who raise ADA claims regardless of
whether the initial claims of discrimination are meritless.”
(citation omitted).
Id.
A plaintiff can establish retaliation under
the ADA through either the direct or indirect method of proof.
Preddie, 799 F.3d at 814.
As with her FMLA retaliation claim,
Davis seeks to prove her ADA retaliation claim using the direct
method.
The direct method of proof requires Davis to show that:
(1) she engaged in statutorily protected activity; (2) she suffered
an adverse employment action; and (3) there is a causal connection
between the two.
Id.
The parties do not dispute that Davis
engaged in statutorily protected activity when she asked for
reasonable accommodations and filed EEOC charges.
The Hospital asserts that Davis fails to demonstrate that she
was subjected to an adverse employment action. “Adverse employment
actions are actions that would dissuade a reasonable person from
engaging in a protected activity.”
Dooley v. Abbott Labs., No. 07
C 7249, 2009 WL 1033600, at *9 (N.D. Ill. Apr. 17, 2009) (citation
‐43‐
omitted).
Davis maintains that she suffered adverse employment
actions when she was denied assignment to position 15, and when
received the March 2013 Corrective Action and the June 2013
Corrective Action.
She admits that write-ups may not normally be
an adverse employment action.
See, e.g., Arive v. Essilor Labs.
of Am., Inc., No. 1:04 CV 0099 DFH WTL, 2006 WL 839467, at *6 (S.D.
Ind.
Mar.
30,
2006)
(“A
written
reprimand
generally
is
not
considered an adverse employment action unless it carries with it
some concrete effect on an employee’s position, pay, benefits, or
prospects with the employer.”) (citations omitted).
For the
reasons provided above, there is a genuine issue of fact as to
whether Davis’s reassignment constitutes an adverse employment
action.
See also Flanagan v. Office of Chief Judge of Circuit
Court of Cook Cty., Ill., No. 06 C 1462, 2007 WL 2875726, at *10
(N.D. Ill. Sept. 28, 2007) (finding it reasonable to conclude that
reassignment
to
desk
duty
was
retaliatory
where
proffered evidence that it was a form of discipline).
plaintiff
The June
2013 Corrective Action resulted in a three-day suspension, and is
undisputedly an adverse employment action.
(See DE #68 at 13.)
Davis does not demonstrate that the March 2013 Corrective Action
resulted in a concrete effect on her position.
Davis insists that her ADA retaliation claim is based on
“more” than just these actions. In Bob-Maunuel v. Chipotle Mexican
Grill, Inc., 10 F. Supp. 3d 854 (N.D. Ill. 2014), the plaintiff’s
‐44‐
managers, who were aware that the plaintiff had filed an EEOC
Charge, increased their monitoring of the plaintiff’s performance
and increased the frequency in which they documented his alleged
deficiencies, which was allegedly done in an effort to terminate
him.
Id. at 886.
negative
reviews
The court held that “the pronounced increase in
and
the
careful
scrutiny
of
plaintiff’s
performance, coupled with testimony suggesting that management
personnel
were
acutely
aware
of
plaintiff’s
EEOC
charge,
is
sufficient to establish a causal link for plaintiff’s prima facie
case of retaliatory discharge.” Id. (citation omitted). The court
found that the evidence was sufficient to establish a causal link
between the plaintiff’s internal complaints and EEOC Charge and
his termination.
Id.
As with her FMLA retaliation claim, Davis relies on her
confrontation with Heard over attendance points to demonstrate a
causal
link
between
her
requests
for
accommodation
and
assignment to other positions and the Corrective Actions.5
her
It is
undisputed that Heard was aware of Davis’s disability, as well as
her requests to be accommodated by being assigned to position 15
or an equivalent position.
When Davis asked Heard why he had
assessed her attendance points for absenteeism in February 2014,
he told her that he had warned her for the last time about going
5
As explained in footnote 2, the Court disregards evidence proffered by Davis
that has been stricken.
‐45‐
to Human Resources, presumably to raise her ADA and FMLA issues.
This evidence would permit a reasonable factfinder find a causal
connection between Davis’s pursuit of her ADA rights and her
reassignment and/or the June 2013 Corrective Action.
Therefore,
the Court DENIES the Hospital’s motion for summary judgment on
Count III.
CONCLUSION
For the reasons set forth above, “Defendant’s Motion for
Summary Judgment” (DE #67) is GRANTED IN PART and DENIED IN PART,
“Defendant’s Motion to Strike Portions of Plaintiff’s Evidence,
Statement
of
Genuine
Disputes
and
Plaintiff’s
Affidavit
from
Plaintiff’s Response to Defendant’s Motion for Summary Judgment”
(DE #91) is DENIED, “Defendant’s Motion to Strike Portions of
Plaintiff’s
Evidence
based
upon
Failure
to
Disclose
during
Discovery” (DE #93) is GRANTED IN PART and DENIED IN PART, and the
“Stipulated Motion to Apply the Legal Standards Set Forth in Ortiz
vs. Werner to the Parties’ Pending Summary Judgment Pleadings and
Evidence” (DE #98) is GRANTED.
Count II of the First Amended
Complaint is hereby DISMISSED.
DATED:
September 30, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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