MONROE v. STATE OF INDIANA, DEPARTMENT OF TRANSPORTATION et al
Filing
72
ORDER granting Defendants' 41 Motion for Summary Judgment. Final Judgment shall issue accordingly. (See Order). Signed by Judge Sarah Evans Barker on 3/31/2016. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFF MONROE,
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Plaintiff,
vs.
STATE OF INDIANA, DEPARTMENT
OF TRANSPORTATION,
BRANDYE HENDRICKSON
Commissioner,
Defendants.
1:14-cv-00252-SEB-DML
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendants’ Motion for Summary Judgment
[Docket No. 41], filed on March 9, 2015, pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Plaintiff Jeff Monroe (“Mr. Monroe”) brings this claim against his
former employer, Defendants State of Indiana Department of Transportation (“INDOT”)
and INDOT Commissioner Brandye Hendrickson in her official capacity, alleging that
Defendants failed to accommodate his disability (Post-Traumatic Stress Disorder) and
discriminated against him because of his disability, in violation of the Americans With
Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101, et seq., as amended by the ADA
Amendments Act (“ADAAA”), and Section 504 of the Rehabilitation Act. For the
reasons detailed below, we GRANT Defendants’ Motion for Summary Judgment.
1
Factual Background
Mr. Monroe was hired on at INDOT on January 6, 1992, where he was employed
for approximately twenty years until his termination on February 4, 2013. During his
tenure with INDOT, Mr. Monroe held several positions, including his most recent
assignment as a unit foreman on the night shift. As a unit foreman, Mr. Monroe
supervised approximately fourteen full-time employees and approximately four seasonal
employees. During the time period relevant to this litigation, Mr. Monroe was supervised
by Terry George, the Sub-district Operations Manager for the Indianapolis Sub-district of
INDOT.
Plaintiff’s Performance Evaluations
Mr. Monroe consistently received positive performance evaluations in his role as
unit foreman. Mr. George awarded him “Exceeds Expectations” ratings on his 2010,
2011, and 2012 performance evaluations. The positive 2012 evaluation was issued on
January 7, 2013, less than one month before his termination. Although Mr. George
testified that he had “personally counseled” Mr. Monroe on several occasions over the
years about his management style, he did not maintain any notes of these conversations.
In any event, it is undisputed that Mr. Monroe was not subjected to any disciplinary
actions during the several years preceding his termination.
Plaintiff’s Personal Struggles
According to Mr. Monroe, over the course of his employment with INDOT, he
responded to more than one hundred fatality crash sites. One of his duties as unit
foreman was to assist in the cleanup of human remains from the road. In the course of
2
performing those duties, he witnessed several tragic events, including the death of one of
his co-workers which occurred as the result of a work-related accident. Mr. Monroe
testified that following his co-worker’s death, he would at times wake in the middle of
the night, covered in sweat and seeing visions of his deceased co-worker.
Mr. Monroe has also dealt with challenging personal circumstances in recent
years. He is a Gulf War combat veteran. Less than three months before his termination,
Mr. Monroe’s sister passed away from cancer. She had moved into Mr. Monroe’s home
a few months before her death and had received hospice care while residing there. Mr.
Monroe testified that towards the end of his employment with INDOT he had become
moody and his family members had noticed that he was becoming more irritable and
easily upset.
Plaintiff Requests Transfer
In December 2012, Mr. Monroe approached Mr. George to request a transfer to
Shelbyville, stating that he was stressed at work and “burned out” and wanted to be
transferred to a day position. Mr. Monroe testified that he also told Mr. George that there
was “something wrong with [him]” and that he “couldn’t sleep.” Monroe Dep. at 35, 8081. Mr. George told Mr. Monroe that he would look into it, and, when he did, he
discovered there were no day positions available. However, Mr. George did not report
this information to Mr. Monroe.
In January 2013 (at some point prior to January 25), after Mr. Monroe did not hear
anything from Mr. George about his transfer request, Monroe again approached George
and George’s supervisor, J.D. Brooks, the Greenfield District Highway Maintenance
3
Director, to request a transfer to a day position in Shelbyville. On this occasion, he was
told there were no such positions available. According to INDOT, Mr. Monroe then
requested that a position be created allowing him to travel around the district in order to
train other units in traffic control or operational activities. Mr. Monroe contends that he
was not asking INDOT to create a new position; rather, he merely suggested that INDOT
temporarily move some foremen around for “cross training” purposes. Monroe Dep. at
37. Specifically, Mr. Monroe testified he told Mr. George and Mr. Brooks that “[o]ne of
the day foremen that’s probably never been on nights could come see how the night
crews work” so that Mr. Monroe could switch with the day foreman and “they’d get to
see different things.” Id. When INDOT did not transfer him, on January 29, 2013, Mr.
Monroe requested that INDOT place him in a non-supervisory highway technician
position in order to get off the night shift because he was “so burnt out and depressed and
couldn’t sleep.” Id. at 35. INDOT never transferred Mr. Monroe to a non-supervisory
highway technician position.
The January 24 Incident
On January 24, 2013, Mr. Monroe was scheduled to work his regular 8:00 p.m. to
6:00 a.m. shift. When he arrived at work, he checked his email and made staffing
assignments. Because snow was predicted for the following morning at 4:00 a.m., Mr.
Monroe needed to send some of his crew to another unit to help prepare that unit’s snow
equipment. During the evening’s safety briefing, Mr. Monroe informed his crew
members that some of them had to report to the other unit. Mr. Monroe contends he did
not yell during the briefing but that he did “get loud” because “when there’s a lot of
4
people and there’s 18 people and they’re all trying to voice, sometimes you got to get
loud to be heard.” Monroe Dep. at 25.
According to Mr. Monroe two of his crew members, Johnny Perkins and Josh
McClung, became “hostile” and asked, “Why the fuck do we got to go do everybody’s
work all the time?” Id. at 12-13. Mr. Monroe proceeded to engage in a back-and-forth
conversation with Mr. Perkins, who told Mr. Monroe that Monroe did not respect his
crew members and always required them to do the work of other units. Mr. Monroe
became frustrated and told Mr. Perkins that respect was a “two-way street” and had to be
earned. Mr. Monroe then dropped his clipboard on his desk and said, “Fuck this. Danny,
take over.” Id. 13-14, 25-26, 31-32. Danny Wise was one of Mr. Monroe’s crew leaders.
Mr. Monroe then retreated into his office in order to calm down. Id. at 14.
When Mr. Monroe returned to the garage, he asked to speak with Mr. Perkins in
the wash bay. 1 Mr. Monroe testified that he asked Mr. Perkins, “What’s up? You know,
why are you giving me such a hard time?” Id. at 15. In response, Mr. Perkins threatened
to fight him. According to Mr. Monroe, he then invited Mr. Perkins to come by his house
to get something to eat and drink and discuss why Perkins “wants to fight all the time,” as
Monroe had previously counseled Perkins about threatening to fight his co-workers. Id.
32-33. No further interaction between Mr. Monroe and Mr. Perkins occurred.
Complaints Regarding the January 24 Incident
1
It was Mr. Monroe’s usual practice to speak with employees in the wash bay because his office
lacked privacy.
5
The next day, on Friday, January 25, 2013, at the conclusion of their night shift,
approximately seven or eight of the INDOT employees who were all supervised by Mr.
Monroe came to Mr. George’s office to file complaints about Mr. Monroe’s ongoing
treatment of them. These employees reported to Mr. George that Mr. Monroe screamed
and yelled at them, treated them with little or no respect, threatened some of them with
their jobs, and publicly ridiculed one individual who has a hearing impairment. They
stated that the situation was intolerable and that they refused to continue to work under
those conditions.
Because of the seriousness of the allegations, Mr. George asked Mr. Brooks, his
direct supervisor, to be present to hear the employees’ reports regarding Mr. Monroe’s
treatment of them. Mr. Brooks then telephoned Jeff Neuman, the Human Resources
manager of the Greenfield District, to request that he also be present to hear the
employees’ allegations. Mr. Brooks and/or Mr. Neuman took notes at the meeting and
the employees also prepared written statements outlining their complaints regarding Mr.
Monroe’s treatment of them.
Following the January 25 meeting, an investigation into the allegations against Mr.
Monroe was undertaken by Mr. Neuman. It was decided that a meeting with Mr. Monroe
would occur on Monday morning to discuss the allegations.
Plaintiff Reports a Diagnosis of Post-Traumatic Stress Disorder
On Sunday evening, January 27, 2013, Mr. George telephoned Mr. Monroe at his
home to tell him that some complaints against him had been made and that he was to
report to George’s office for a meeting on Monday, January 28, 2013. Mr. Monroe
6
contends that Mr. George did not specify what the complaints were about or that they
were made by INDOT employees. During that telephone conversation, Mr. Monroe
informed Mr. George that he had recently consulted with a therapist and that “they
believed that [he] had [Post-Traumatic Stress Disorder] PTSD.” Monroe Dep. at 20.
Prior to that conversation, Mr. George had no knowledge that Mr. Monroe had ever seen
a doctor or therapist for any physical or mental health issues.
On January 28, Mr. Monroe attended the meeting with Mr. George, Mr. Neuman,
and Mr. Brooks, during which Mr. Monroe disclosed for the first time to Mr. Neuman
and Mr. Brooks that he believed he suffered from PTSD. 2 Although Mr. Monroe had told
Mr. George that he had consulted a therapist who had diagnosed him with PTSD, Mr.
Monroe testified by deposition that he told Neuman, Brooks, and George that he had
PTSD based on the remark made by a woman with whom he had spoken by telephone in
scheduling a therapy appointment who said it “sounded” to her like he had PTSD.
It is undisputed that Mr. Monroe did not see a therapist or other medical
professional before January 29, 2013. However, Mr. Monroe contends that he began
trying to schedule a therapy appointment prior to the January 24 incident. Mr. Monroe
testified that he began his efforts to secure treatment during the week of January 21 by
telephoning an 800 number a few times and contacting his insurance provider. Mr.
Monroe also spoke with a Licensed Clinical Social Worker on January 28. According to
2
There is some dispute as to whether Mr. George told either Mr. Brooks or Mr. Neuman about
Mr. Monroe’s possible PTSD diagnosis before the January 28 meeting, but it is undisputed that
the January 28 meeting was the first time Mr. Monroe disclosed that information to Mr. Brooks
and Mr. Neuman.
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Mr. Monroe, the individuals with whom he spoke told him they believed he had PTSD,
but he did not actually see a therapist until January 29.
At the January 28 meeting, Mr. Monroe was given the option of taking vacation or
reporting to a different location until the investigation was completed. Mr. Monroe chose
to take vacation.
The Investigation and Plaintiff’s Termination
INDOT’s notes from its investigation into the complaints against Mr. Monroe
include statements from each of the employees whom Mr. Monroe supervised. The
comments from the employees included both positive and negative observations
regarding Mr. Monroe’s conduct. Some employees defended the behavior exhibited by
Mr. Monroe on January 24, stating that Monroe “knows his job and gets things done” and
“if he yells, he’s just doing his job.” Dkt. 42-8. Another employee reported that Mr.
Monroe’s crew “tends to blow things out of proportion.” Id. However, others reported
that Mr. Monroe had been “testy lately – something’s wrong”; that he was “bipolar –
always like that but worse lately”; and that he “picked on” and talked to one of his
employees “like he was mentally ill.” Id. A number of employees also stated that Mr.
Monroe was “demeaning” and “threatens.” Id. During a group interview with four of
Mr. Monroe’s current and former subordinates, all four reported that “Jeff’s amount of
sleep is a key factor in his outbursts.” Id.
During Mr. Monroe’s interview on January 29, he told Mr. Brooks and Mr.
Neuman that he “doesn’t sleep” much and that “[n]o sleep causes him to get frustrated at
things” that should not upset him. Id. at 10-11. Mr. Monroe stated that “two weeks ago
8
is when he realized that something was wrong.” Id. He also told Mr. Brooks and Mr.
Neuman that witnessing the death of his co-worker and “fatality cleanup” caused his
stress. Id. Mr. Monroe “equat[ed] his position to a police or fireman’s stress” and stated
“they get counseling after fatalities.” Id. He recommended that INDOT “send people for
counseling for stressful situations.” Id. Finally, he said that he “just can’t relax” and that
he “wants his life back.” Id.
On February 4, 2013, 3 after the investigation into the employees’ allegations
against Mr. Monroe had been completed, Mr. Monroe was terminated. INDOT contends
he was terminated for consistently exhibiting hostile and intimidating behavior in the
execution of his supervisory duties. Although lesser levels of discipline were discussed,
the decisionmakers unanimously determined that the seriousness of Mr. Monroe’s
behavior necessitated termination.
Plaintiff’s Medical History
Mr. Monroe did not provide anyone at INDOT with documentation of his PTSD
diagnosis at any point prior to filing the instant lawsuit. According to Mr. Monroe, this is
because INDOT never requested medical documentation of his disability. Mr. Monroe
also underwent annual physicals to maintain his CDL license and consistently checked
“no” in answer to all of the questions regarding whether he suffered from emotional,
mental health, or sleep-related issues.
3
The parties acknowledge that Mr. Monroe’s termination letter includes a typographical error, to
wit, the letter lists the year of termination as 2012 rather than 2013.
9
Mr. Monroe’s certified medical records establish that he was seen by a therapist at
Gallahue Mental Health on two occasions: January 29, 2013 and February 4, 2013. At
the January 29 appointment, Mr. Monroe reported sleeping only two hours per day, being
“irritable at work and with family,” and experiencing “stressful aspects in work
environment.” Dkt. 42-7. The therapist noted that Mr. Monroe “appears to have Major
Depression and PTSD” and recommended that Mr. Monroe attend therapy twice per
month and return for a medication evaluation. Id.
Mr. Monroe was seen by a clinical nurse specialist on February 7, 2013 for the
purpose of obtaining a prescription for depression medication. However, although Mr.
Monroe was prescribed the medication, he never took it. Mr. Monroe testified that he did
not see the therapist after “his insurance ran out” which occurred a few weeks after he
was terminated and that he had never been to a psychologist or therapist prior to his
appointment with the therapist at Gallahue in January 2013.
The Instant Litigation
On February 20, 2014, Mr. Monroe filed his Complaint in this action. Mr.
Monroe filed an Amended Complaint on June 20, 2014, alleging violations of the
Americans With Disabilities Act as Amended and Section 504 of the Rehabilitation Act
of 1973. Defendants moved for summary judgment on March 9, 2015. That motion is
now fully briefed and ripe for ruling.
Legal Analysis
I.
Standard of Review
10
Summary judgment is appropriate when the record shows that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party
and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
However, neither the mere existence of some alleged factual dispute between the parties,
id. at 247, nor the existence of some metaphysical doubt as to the material facts,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat
a motion for summary judgment. Michas v. Health Cost Controls of Illinois, Inc., 209
F.3d 687, 692 (7th Cir. 2000).
The moving party bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
The party seeking summary judgment on a claim on which the non-moving party bears
the burden of proof at trial may discharge its burden by showing an absence of evidence
to support the non-moving party's case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle
for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
11
Cir. 1994). Thus, after drawing all reasonable inferences from the facts in favor of the
non-movant, if genuine doubts remain and a reasonable fact finder could find for the
party opposing the motion, summary judgment is inappropriate. See Shields Enter., Inc.
v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg,
870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to
satisfy the legal requirements necessary to establish her case, summary judgment is not
only appropriate, but it is mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca
LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one essential element
necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
II.
Discussion
A.
Eleventh Amendment
We first address INDOT’s contention that Mr. Monroe’s claims for compensatory
damages brought under Title I of the ADA and Section 504 of the Rehabilitation Act are
barred by the Eleventh Amendment.
1.
ADA Claim
“The Eleventh Amendment immunizes the states against damage suits brought in
federal court by their own citizens, unless the state has waived immunity or Congress has
validly abrogated the immunity.” Strong v. Ill. Dep’t of Human Servs., 40 Fed. App’x
297, 297-98 (7th Cir. 2002) (citations omitted). Here, it is clear (and Mr. Monroe does
not dispute) that Plaintiff’s claims against Defendants for damages under the ADA are
12
barred by the Eleventh Amendment. Mr. Monroe argues, however, that he may proceed
against Commissioner Hendrickson in her official capacity on his ADA claims seeking
prospective relief, pursuant to the doctrine of Ex Parte Young, 209 U.S. 123 (1908).
“In determining whether the doctrine of Ex Parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into whether
the complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon Maryland, Inc. v. Public Serv. Commission of
Maryland, 535 U.S. 635, 645 (2002) (quotation marks and citations omitted). In Kashani
v. Purdue University, 813 F.2d 843, 848 (7th Cir. 1987), the Seventh Circuit permitted a
discrimination suit to go forward against the individual named state officials for
injunctive relief of reinstatement into a graduate program. Citing Ex Parte Young, the
court stated that “a suit for prospective injunctive relief is not deemed a suit against the
state and thus is not barred by the Eleventh Amendment.” Id.
In this case, in addition to compensatory damages, Mr. Monroe has requested
injunctive relief in the form of reinstatement and/or front pay, based on alleged violations
of the ADA. Defendants, however, argue that Mr. Monroe has not alleged an ongoing
violation of federal law to support application of Ex Parte Young in this case. It appears
from Mr. Monroe’s complaint that the crux of the relief he seeks is compensatory
damages. But because he also seeks reinstatement and Defendants do not contend that
reinstatement is impermissible in this case, reading Mr. Monroe’s complaint in the
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broadest manner possible, we hold that claims against Commissioner Hendrickson
seeking reinstatement are not barred by the doctrine of sovereign immunity.
2.
Section 504 Claim
Mr. Monroe also brings claims under Section 504 of the Rehabilitation Act. In
1986, Congress amended the Rehabilitation Act to provide that a “State shall not be
immune under the Eleventh Amendment of the Constitution of the United States from
suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973….”
42 U.S.C. § 2000d-7. This provision “expressly waives state sovereign immunity for
violations of ‘section 504 of the Rehabilitation Act of 1973 … by recipients of Federal
financial assistance.’” Sossamon v. Texas, 131 S.Ct. 1651, 1662 (2011) (emphasis
removed). It is undisputed that INDOT is an agency that receives federal funds.
Accordingly, it is not immune from a suit for damages under Section 504. See, e.g.,
Everybody Counts, Inc. v. Indiana Regional Planning Commission, 2006 WL 2471974
(N.D. Ind. 2006).
B.
ADA and Rehabilitation Act Claims
Under the ADA “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). Similarly, the Rehabilitation
Act prohibits discrimination against a “qualified individual with a disability … solely by
reason of her or his disability.” 29 U.S.C. § 794(a). “Such causation language is unique
to the Rehabilitation Act, which otherwise ‘incorporates the standards applicable to Title
I of the ADA.” Scheidler v. Indiana, No. 1:13-cv-0937-WTL-DML, 2016 WL 1057025,
14
at *4 (S.D. Ind. Mar. 17, 2016) (quoting Brumfield v. City of Chi., 735 F.3d 619, 630 (7th
Cir. 2015)). Discrimination under both the ADA and Rehabilitation Act includes a
failure to accommodate.
1.
Qualified Individual with a Disability
Here, Mr. Monroe brings claims for discriminatory termination and failure to
accommodate under both the ADA and the Rehabilitation Act. In order to survive
summary judgment on any of his claims, Mr. Monroe first must establish that he is a
qualified individual with a disability, which is defined under the statutes as “an individual
with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” 42
U.S.C. § 12111(8). INDOT disputes only whether Mr. Monroe has established that he
suffers from a disability as defined by the ADA and Rehabilitation Act, arguing that he
has failed to make the requisite showing and that his claims fail on this basis.
An individual is disabled under the ADA and the Rehabilitation Act if he (1) has a
physical or mental impairment that substantially limits one or more of his major life
activities; (2) has a record of such an impairment, or (3) is regarded as having such an
impairment. 42 U.S.C. § 12102(1); see also Mays v. Principi, 301 F.3d 866, 869 (7th
Cir. 2002) (explaining that the definition of disability is the same under the ADA and the
Rehabilitation Act). When Congress passed the ADA Amendments Act (“ADAAA”) in
2008, it “stated that the term ‘substantially limits’ should be interpreted broadly to
provide wide coverage.” EEOC v. AutoZone, Inc., 630 F.3d 635, 641 n.3 (7th Cir. 2010).
15
The ADAAA implementing regulations provide that “[t]he question of whether an
individual meets the definition of disability under [the ADA] should not demand
extensive analysis.” 29 C.F.R. § 1630.1(c)(4). The “impairment need not prevent, or
significantly or severely restrict, the individual from performing a major life activity in
order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). Rather, the
impairment need only “substantially limit[] the ability of an individual to perform a major
life activity as compared to most people in the general population.” Id.
Here, Mr. Monroe contends that he is disabled under the first prong of the
disability definition, to wit, that he suffers from mental impairments (PTSD and
depression), which substantially limit him in the major life activity of sleeping. INDOT
argues that Mr. Monroe has failed to show that he was disabled at the time he alleges he
was discriminated against because he was not diagnosed with depression and PTSD until
January 28, 2013, after INDOT had allegedly failed to accommodate him by declining to
transfer him to a day shift and had already begun the investigation into the January 24
incident that ultimately resulted in Mr. Monroe’s termination.
It is undisputed that Mr. Monroe was diagnosed with depression and PTSD on
January 28, 2013 and that both PTSD and depression qualify as mental impairments
under the ADA and Rehabilitation Act. Although INDOT argues that this diagnosis did
not get made until after the alleged discrimination had already occurred, that argument
goes toward whether INDOT had knowledge of Mr. Monroe’s disability rather than
whether he was in fact disabled. Accordingly, we find that Mr. Monroe has provided
16
sufficient evidence to establish that he suffered from mental impairments. That is not the
end of the inquiry, however, as will become clear, because it is not enough simply to
suffer from an impairment; rather, that impairment must substantially limit a major life
activity.
Mr. Monroe contends that his depression and PTSD substantially limited him in
the major life activity of sleeping. INDOT does not dispute that sleeping is considered a
major life activity under the ADAAA. See Scheerer v. Potter, 443 F.3d 916, 920-21 (7th
Cir. 2006). However, INDOT contends that Mr. Monroe has failed to present evidence to
establish that his sleep issues were substantially limiting. As noted above, the 2008
Amendments to the ADA lessened the burden a plaintiff must meet in order to establish a
substantial limitation on a major life activity. Specifically, the Amendments provide that
an “impairment need not prevent, or significantly or severely restrict, the individual from
performing a major life activity in order to be considered substantially limiting.” 29
C.F.R. § 1630.2(j)(1)(ii). Rather, the impairment need only “substantially limit[] the
ability of an individual to perform a major life activity as compared to most people in the
general population.” Id. Although a close call, we are persuaded that Mr. Monroe has
presented sufficient evidence to raise a genuine issue of material fact regarding whether
his depression and/or PTSD substantially limited him in the major life activity of
sleeping.
Mr. Monroe has testified that during the relevant time period he “couldn’t sleep,
couldn’t concentrate,” that he was “burnt out” and experiencing increased irritability.
17
Monroe Dep. at 35, 80-81, 83. He also told his supervisors that he was not sleeping and
that he was seeing a vision of his co-worker who died on the job approximately ten years
before and that he would wake up “totally soaked with sweat.” Id. at 83-86. Mr.
Monroe’s medical records show that he made similar reports to a therapist and clinical
nurse specialist on January 29, 2013 and February 7, 2013, respectively. Those reports
memorialize his complaints that he was “experience[ing] insomnia and early awakening,”
that he was “irritable at work and with family” and that he was experiencing “recurring
images of a coworker who was crushed to death at his work place 10 years ago.” Dkt.
42-7. Mr. Monroe also reported to the therapist that he was “[s]leeping only two hours a
day recently” and that he was experiencing sleep issues “most days.” Id. at 7.
It is true that the majority of this evidence consists only of Mr. Monroe’s selfdescribed sleep issues and their effect on his daily living. However, as the Seventh
Circuit recently observed, “[n]o language in the ADA or implementing regulations states
that medical testimony is required” to prove a substantial limitation. AutoZone, Inc., 630
F.3d at 644 (holding that there was no need for medical testimony where plaintiff’s
personal testimony regarding his limitations was corroborated by his wife’s testimony
and supported by evidence of well-documented impairments). Here, Mr. Monroe
reported to the therapist that he was sleeping only two hours per day and testified that he
was having visions of his dead co-worker that were disrupting his sleep and that his lack
of sleep was making him irritable both at work and at home with his family. There is
also evidence in the record that his family members as well as his co-workers noticed his
18
increased irritability and connected his behavior to a lack of sleep. Under the less
demanding standard of the ADAAA, this evidence is sufficient to raise a genuine issue of
material fact regarding whether Mr. Monroe’s diagnosed depression and PTSD
substantially limited him in the major life activity of sleeping. 4 See Ceska v. City of Chi.,
No. 13 C 6403, 2015 WL 468767, at *3 (N.D. Ill. Feb. 3, 2015) (holding that a
reasonable jury could find that the plaintiff who reported sleeping less than three or four
hours a night was substantially limited in the major life activity of sleeping under the
ADAAA).
Having found that the question of whether Mr. Monroe is a qualified individual
with a disability must be resolved by a jury, we turn to address the remaining elements of
his discriminatory termination and accommodation claims under the ADA and
Rehabilitation Act.
2.
Discriminatory Termination
A plaintiff may proceed under either the direct or indirect method of proof to
establish a claim for disability discrimination. Hooper v. Proctor Health Care, Inc., 804
F.3d 846, 853 (7th Cir. 2015). Under the direct method, a plaintiff must establish: (1) he
is disabled within the meaning of the ADA and/or Rehabilitation Act; (2) he was
qualified to perform the essential functions of the job with or without accommodation;
4
Having found that Mr. Monroe has satisfied the first prong of the disability definition, we need
not address his alternative argument that he is disabled under the third prong of the definition, to
wit, that INDOT regarded him as disabled.
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and (3) he was terminated because of his disability. Id. To establish the third prong, the
plaintiff must “show that his disability was a ‘but for’ cause of his termination, which can
be demonstrated through direct or circumstantial evidence, with circumstantial evidence
encompassing, among other things, suspicious timing and pretext for the adverse
employment action. Id. (internal citations omitted).
To prove a disability discrimination claim under the indirect method of proof, a
plaintiff must establish that (1) he is disabled pursuant to the ADA and/or Rehabilitation
Act; (2) he was meeting his employer’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) his employer treated similarly situated, non-disabled
employees more favorably. Id. If the plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to show a legitimate, nondiscriminatory
reason for the employment action. Id. If the employer does so, the plaintiff must then
present evidence demonstrating that the employer’s nondiscriminatory reason is
pretextual. Id.
Although the Seventh Circuit has “recently questioned the continued utility of the
direct and indirect methods of proof in analyzing discrimination claim,” the court has
“continued to separately consider them.” Id. However, as Mr. Monroe highlights, “the
ultimately question under both methods, and which is relevant here, is ‘whether a
reasonable jury could find prohibited discrimination.’” Id. (quoting Bass v. Joliet Pub.
Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014)).
20
Here, Mr. Monroe has proceeded under the indirect method of proof, so we follow
his lead and apply that framework. As we have discussed supra, Mr. Monroe has made a
sufficient showing at this stage of the litigation as to the first prong of the test, to wit, that
he is a qualified individual with a disability. There is also no dispute that Mr. Monroe
was terminated, which constitutes an adverse employment action. Accordingly, the only
prongs of the indirect test that are at issue in this case are the second and fourth prongs,
namely, whether Mr. Monroe was meeting INDOT’s legitimate employment expectations
at the time of his termination and whether similarly situated non-disabled individuals
were treated more favorably. Under the circumstances before us here, our analysis of Mr.
Monroe’s performance of his employment responsibilities merges with the pretext
inquiry because INDOT’s proffered nondiscriminatory reason for Mr. Monroe’s
discharge is his alleged failure to meet INDOT’s legitimate job expectations as a result of
his conduct on January 24, 2013. See Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1002
(7th Cir. 2013); Vaughn v. Vilsack, 715 F.3d 1001, 1007 (7th Cir. 2013).
Mr. Monroe’s employment records establish and Defendants do not dispute that he
had a lengthy and positive employment record with INDOT and that he received
“exceeds expectation” ratings on his 2010, 2011, and 2012 annual evaluations with the
2012 annual evaluation being completed less than one month before his termination.
However, INDOT asserts that Mr. Monroe was nonetheless failing to meet its legitimate
employment expectations at the time of his termination as a result of his conduct during
the January 24 incident, following which a number of his subordinates complained to
21
management regarding Mr. Monroe’s ongoing abusive treatment of them and stated that
they would no longer work under such conditions. INDOT immediately initiated an
investigation into the allegations against Mr. Monroe which included interviewing all of
the employees he supervised. Some employees spoke positively about Mr. Monroe and
his leadership while a number of other employees stated that he was “demeaning” and
“threatening” and that he “picked on” one employee in particular. Dkt. 42-8.
At the time the investigation into the January 24 incident began, Mr. Monroe had
not yet visited a therapist or other medical professional or been diagnosed with
depression or PTSD. On January 28, 2013, INDOT supervisors spoke with Mr. Monroe
about the allegations regarding the January 24 incident. Mr. Monroe testified that at that
meeting, he told his supervisors that he had spoken with a therapist and INDOT spoke
with Mr. Monroe about the allegations on January 28, 2013. At that meeting, Mr.
Monroe reported to his supervisors that he believed he had PTSD because the woman to
whom he had spoken on the telephone in an effort to schedule a therapy appointment had
said it “sounded” to her like he had PTSD. Upon completion of its investigation, INDOT
determined that due to the severity of the allegations against Mr. Monroe, termination
was appropriate. INDOT terminated Mr. Monroe on February 4, 2013.
To demonstrate pretext a plaintiff must show “such weaknesses, implausibilities,
inconsistencies, or contradictions in [the employer’s] proffered reasons that a reasonable
person could find them unworthy of credence and hence infer that [the employer] did not
act for the asserted non-discriminatory reasons.” Boumehdi v. Plastag Holdings, LLC,
22
489 F.3d 781, 792 (7th Cir. 2007) (citation omitted). Mr. Monroe’s contentions and
evidence fall well short of satisfying that burden here. First, we highlight the fact that
when the investigation into the January 24 incident was initiated, INDOT was not even
on notice that Mr. Monroe suffered from a disability as he had not at that time shared
with INDOT that he suspected he might have a disability and he did not receive a
diagnosis until January 29, 2013, which was the first time he had ever been seen by a
therapist or other medical professional.
In addition, there is no indication that the investigation conducted by INDOT
following the January 24 incident was deficient or in any way a sham proceeding.
Rather, the evidence gathered as a result of that investigation corroborates INDOT’s
assertion that a number of Mr. Monroe’s subordinates reported that he had engaged in
continuing threatening and demeaning and abusive conduct and that they no longer felt
comfortable working for him. Mr. Monroe points to the fact that other of his
subordinates were supportive and complimentary of his leadership and argues that
INDOT made the wrong decision in terminating him. But to demonstrate pretext, it is
insufficient to show merely that the employer’s “stated reason was inaccurate or unfair”;
instead a plaintiff must establish that the employer did not “honestly believe” the reasons
it offered to explain its actions. Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 506 (7th
Cir. 2014). In other words, pretext requires “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.’” Argyropoulos v. City of Alton, 539 F.3d 724, 736 (7th Cir. 2008) (quoting
23
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 737 (7th Cir. 2006)). Mr. Monroe has
failed to establish such evidence here.
Mr. Monroe contends that INDOT’s treatment of similarly situated non-disabled
employees establishes that its nondiscriminatory reason for his termination is pretextual.
Specifically, Mr. Monroe identifies Jim Branson, Jim Patrick, and Jeff Wilson as nondisabled comparators who received more favorable treatment. It is true that evidence that
similarly situated employees outside the protected class were treated differently can
establish pretext. Coleman v. Donahoe, 667 F.3d 835, 858 (7th Cir. 2012)
(“[C]omparator evidence can do ‘double-duty’ at both the prima facie and pretext
stages.”). However, we are not persuaded that any of the identified comparators are in
fact similarly situated to Mr. Monroe.
A similarly situated employee need not be “identical,” Caskey v. ColgatePalmolive Co., 535 F.3d 585, 592 (7th Cir. 2008), but he must be “directly comparable to
the plaintiff in all material respects.” Naik v. Boehringer Ingelheim Parm, Inc., 627 F.3d
596, 600 (7th Cir. 2010) (quotation marks and citation omitted). This typically “entails a
showing that the two employees dealt with the same supervisor, were subject to the same
standards, and had engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer’s treatment of them.”
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).
Here, Mr. Monroe contends that each of the identified comparators engaged in
similarly serious, if not more egregious conduct than his, but were not terminated. We
24
need not delve too deeply into the specifics regarding each comparator’s conduct,
however, because the undisputed evidence establishes that Mr. Monroe’s behavior was
assessed under a different employment policy than the conduct of most of his alleged
comparators. Specifically, between January 11, 2005 and July 1, 2011, all INDOT
employees were deemed “non-merit” employees and as such, could appeal suspensions,
demotions, and terminations through the State Employee Appeals Commission under a
“just cause” standard. Defs.’ Exh. R ¶ 4. On July 1, 2011, laws were enacted and
codified at Indiana Code § 4-15-2.2, et seq., which, among other actions, redefined State
employment categories. Under this statute, all INDOT employees became “unclassified”
employees, defined under the statute as employees at will who serve at the pleasure of the
employee’s appointing authority and may be dismissed, demoted, disciplined, or
transferred for any reason that does not contravene public policy. IND. CODE § 4-15-2.224. Like non-merit employees, unclassified employees may also request an appeal of a
suspension, demotion, or termination through the State Employee Appeals Commission,
but an “at will” standard rather than the “just cause” standard applies. Defs. Exh. R at ¶
5.
Given this change in the statutes governing employees of the State, it would be
inappropriate to compare any decision pertaining to discipline of a non-merit INDOT
employee prior to July 1, 2011 with discipline given to an unclassified INDOT employee
after the 2011 statute took effect and the standard of review for any appeal changed from
a “just cause” standard to “at will.” Accordingly, Jim Patrick, who was disciplined in
25
September 2007 cannot be considered similarly situated to Mr. Monroe for purposes of
comparison. Likewise, the record shows that the more favorable treatment received by
Jeff Wilson occurred prior to July 1, 2011. When he again engaged in improper conduct
following the statute’s enactment, he received the same treatment Mr. Monroe did in this
case, to wit, he was given the option to resign or be terminated and he chose resignation.
The fact that he was treated more leniently before the statute went into effect but received
the same treatment as Mr. Monroe when they were both governed by the same
employment policies and standards in no way establishes pretext.
Jim Branson is the only identified comparator who received discipline following
the statute’s enactment in 2012 and was treated arguably more favorably than Mr.
Monroe. Nevertheless, we find that the differences in the conduct between the two are
distinguishable such that INDOT’s different treatment of them is insufficient to raise an
inference of discrimination or to establish pretext. Mr. Branson was initially given a
three-day suspension in February 2012 following an incident in which he acted
inappropriately in dealing with mechanics who wanted to take the truck he was using.
Then, in May 2013, he was demoted and received a 9% pay cut for “repeated and
consistent inappropriate conduct in performing management and supervisory duties.”
Defs.’ Exh. Q at 84. Although Mr. Branson apparently failed to perform his supervisory
duties to INDOT’s satisfaction, unlike Mr. Monroe’s situation, there is no indication that
a significant number of Mr. Branson’s subordinates reported that they could no longer
work for him or that he was accused by his subordinates of mistreatment. Moreover,
26
even if Mr. Branson’s conduct can be said to be comparable to Mr. Monroe’s, the fact
that INDOT on one occasion may have disciplined one non-disabled employee slightly
more leniently than Mr. Monroe is insufficient to defeat summary judgment in light of
the overwhelming evidence that INDOT terminated Mr. Monroe for a legitimate nondiscriminatory reason. Accordingly, Defendants are entitled to summary judgment on
Mr. Monroe’s discriminatory termination claim. 5
3.
Failure to Provide Reasonable Accommodation
Mr. Monroe also alleges that INDOT violated both the ADA and the
Rehabilitation Act by failing to provide him a reasonable accommodation. In addition to
proving he is a qualified individual with a disability, a point which we have addressed
above, in order to establish a claim for failure to accommodate under either the ADA or
the Rehabilitation Act, a plaintiff must also show that his employer was: (1) aware of his
disability; and (2) that his employer failed to reasonably accommodate that disability.
Povey v. City of Jeffersonville, 697 F.3d 619, 622 (7th Cir. 2012) (citing Miller v. Ill.
Dep’t of Transp., 643 F.2d 190 (7th Cir. 2011)).
Mr. Monroe claims that INDOT failed to provide him a reasonable
accommodation when it denied his request first in December 2012 and then again in
January 2013 to transfer to a day shift position. INDOT contends that Mr. Monroe’s
5
Because we have determined that INDOT’s termination decision was nondiscriminatory, we
need not address Mr. Monroe’s contention that his supervisors ignored his request for a
reasonable accommodation (i.e., to be transferred to a Highway Tech position) on January 29,
2013 when the investigation into his conduct that resulted in his termination had already begun.
27
accommodation claim cannot survive summary judgment because the undisputed
evidence shows that it had no knowledge that he suffered from a disability at the time it
declined to transfer him to a day shift position, and further, that the accommodation
requested by Mr. Monroe was unreasonable as there were no day shift positions then
available.
The evidence establishes that Mr. Monroe requested to be moved to a day shift
position on two occasions, once in early December 2012 and then again at some point
before January 24, 2013. It is undisputed that Mr. Monroe never attended a therapy
session until January 29, 2013 and was not diagnosed with depression and PTSD until
that date, which was after both of his requests for a transfer. At the time he requested the
transfer, Mr. Monroe told his supervisors only that he was “burnt out,” that he “couldn’t
sleep, couldn’t concentrate,” that he thought there was “something wrong” with him and
that he wanted to be moved to the day shift. Monroe Dep. at 35, 80-81.
It is true, as Mr. Monroe argues, that an individual need not use any particular
“magic words” to request an accommodation, and, if it appears that an employee may
need an accommodation but does not know how to ask for one, an employer cannot put
its head in the sand and avoid inquiring further. However, while we recognize that “some
symptoms are so obviously manifestations of an underlying disability that it would be
reasonable to infer that an employer actually knew of the disability,” (Hedberg v. Indiana
Bell Telephone Co., 47 F.3d 928, 934 (7th Cir. 1995)), that is not the case here. Mr.
Monroe’s vague and conclusory statements regarding being tired all the time and “burnt
28
out” without any prior indication of mental health issues could not possibly have put
INDOT on notice that he may have been suffering from a disability requiring
accommodation. Defendants are therefore entitled to summary judgment on Mr.
Monroe’s claims that INDOT failed to provide him a reasonable accommodation when it
failed to transfer him to a day shift position in December 2012 and January 2013 because
it was not made aware that he had a disability at that time. 6
III.
Conclusion
For the reasons detailed above, Defendants’ Motion for Summary Judgment is
GRANTED. Final judgment shall issue accordingly.
IT IS SO ORDERED.
Date: _________________________
3/31/2016
6
Even if INDOT had been aware of Mr. Monroe’s disability at the time it denied his request to
be transferred to a day shift position, his claim nonetheless fails because such a transfer would
not have been a reasonable accommodation under the circumstances. In response to INDOT’s
argument that he was requesting that a new position be created for him, Mr. Monroe states that
he was not asking that a new position be created, but merely that, as a training opportunity, he be
allowed to switch places with an employee on day shift. However, “[a]n employer is not
required to ‘bump’ another employee in order to create a vacancy for the disabled employee.”
McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159 (7th Cir. 1997) (quoting Gile v. United
Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996)).
29
Distribution:
Rebecca A. Brelage
INDIANA ATTORNEY GENERAL
rebecca.brelage@atg.in.gov
Jason P. Cleveland
JOHN H. HASKIN & ASSOCIATES
jcleveland@jhaskinlaw.com
John H. Haskin
JOHN H. HASKIN & ASSOCIATES
jhaskin@jhaskinlaw.com
Meghan Uzzi Lehner
JOHN H. HASKIN & ASSOCIATES
mlehner@jhaskinlaw.com
Eric J Hartz
JOHN H. HASKIN & ASSOCIATES, LLC
ehartz@jhaskinlaw.com
30
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