ACHORS v. FCA US, LLC
ORDER - Defendant's Motion for Summary Judgment doc. 34 is GRANTED as to all of Ms. Achors's claims. Because she abandoned her claims under the Family Medical Leave Act and her ADA claim, they will be included in the judgment as well. Signed by Judge Sarah Evans Barker on 9/29/2017. (CKM)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
CAUSE NO. 1:15-cv-2052-SEB-MPB
FCA US, L.L.C.,
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Kimberly Achors claims that her employer, defendant FCA US, L.L.C., is
liable to her for various violations of the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101, et seq. FCA moves for summary judgment on all of Ms. Achors’s claims
and its motion is now fully briefed and ready for decision. For the reasons explained
herein, the motion is granted despite a denial in part on a single underlying,
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of
the suit, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute about a
material fact is genuine only if, on the presented evidence, a reasonable jury could
return a verdict for the nonmoving party,” id., at 248.
“As the ‘”put up or shut up” moment in a lawsuit,’ summary judgment requires
a non-moving party to respond to the moving party’s properly-supported motion by
identifying specific, admissible evidence showing that there is a genuine dispute of
material fact for trial.” Grant v. Trustees of Indiana University, No. 16-1958, 2017 WL
3753996, *4 (7th Cir., August 31, 2017). “If there is no triable issue of fact on even one
essential element of the nonmovant’s case, summary judgment is appropriate.” Boss v.
Castro, 816 F.3d 910, 916 (7th Cir. 2016). A court construes the cited evidence in the light
most favorable to the non-moving party and draws all reasonable inferences in that
party’s favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008).
However, the non-moving party “is not entitled to the benefit of inferences that are
supported only by speculation or conjecture.” Boss, 816 F.3d at 916. A court does not
weigh the evidence or determine credibility because those tasks are reserved for the
fact-finder at trial. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).
I. Undisputed facts
Except as specifically noted, the following facts have been established by the
parties through citations to admissible evidence in the record and have not been
genuinely disputed by cited evidence or they have been admitted in the parties’
pleadings. Fed. R. Civ. P. 56(c)(1)(A); Perez v. El Tequila, L.L.C., 847 F.3d 1247, 1254 (10th
FCA hired Ms. Achors on March 7, 1994. Complaint and Demand for Jury Trial
[doc. 1] (“Complaint”), ¶ 10; Defendant’s Answer and Affirmative Defenses [doc. 15]
(“Answer”), ¶ 10. Ms. Achors was first assigned to a transmission assembly line where
she continued to work until 2001. Defendant’s Brief in Support of Motion for Summary
Judgment [doc. 35] (“Defendant’s Brief”), Statement of Material Facts Not in Dispute
(“SMF”), at 5. The parties dispute the specific title of Ms. Achors’s job but they do not
dispute that she actually performed assembly-line work.
In 2001, Ms. Achors experienced a seizure and was diagnosed with Tardive
dyskinesia, a disorder that results in seizures occurring on average once a month. 1 The
medical statement that she submitted to FCA restricted her from working in close
proximity to moving parts and flashing lights, which meant that she no longer could
work on or around the assembly line. These restrictions were continuously in effect
during her employment. Defendant’s Brief, SMF, at 5. For the next fourteen years, FCA
assigned her to jobs that complied with her medical restrictions. Id. Ms. Achors
testified that FCA was “pretty good and found me a lot of jobs” that all complied. Id., at
5-6. No one at FCA questioned or rejected her medical restrictions. Id., at 5-6.
After her seizure and submission of medical restrictions in 2001, Ms. Achors was
off work for several months. Following another seizure in 2012, FCA placed her on
“Code 31” status, which meant that she remained on the employment rolls despite there
being no work for her and she was paid approximately ninety percent of her normal
1 Ms. Achors testified that, earlier in 2001, she also was diagnosed with anxiety, depression, and
bipolar disorder, Defendant’s Brief, Exhibit A, Excerpts of Deposition of Kimberly Achors [doc. 35-1]
(“Achors Dep.”), at deposition p. 40-41; see also Complaint, ¶ 12, and that her Tardive dyskinesia started
soon after as an almost immediate reaction to an anti-depressant medication that she had started taking
to treat some or all of those mental disorders, Achors Dep., p. 33.
wage. She remained on Code 31 status for two years, from 2012 to October 2014, until
FCA called her back because it found work that she could perform. Plaintiff’s Brief in
Opposition [doc. 60] (“Response”), Plaintiff’s Statement of Additional Material Facts
(“SAMF”), at 4, ¶ 2; Defendant’s Reply [doc. 63] (“Reply”), Response to Plaintiff’s
Statement of Additional Material Facts (“RSAMF”), at 6, ¶ 2; Defendant’s Brief, Exhibit A,
Excerpts of Deposition of Kimberly Achors [doc. 35-1] (“Achors Dep.”), at deposition pp.
Mr. Larrison’s alleged comments. Myron “Mike” Larrison was “the Joint Team
Leader Selection Committee for the Kokomo Transmission Plant” (a union-appointed
position) and a co-worker of Ms. Achors. They did not actually work together but
occasionally saw each other in the outdoor smoking area during breaks and while
walking around the plant. Defendant’s Brief, SMF, at 7. Before October 15, 2014, Mr.
Larrison made certain unwelcome comments to Ms. Achors. The first such comment
occurred after she returned to work in October 2014 following her Code 31 status.
While conversing with other employees in the smoking area on a hot day, someone
mentioned that popsicles were not brought around and Ms. Achors expressed surprise
and said that “[w]e never got Popsicles” (before her Code 31). Mr. Larrison responded,
“Well, how would you know? You never come to work, you know, you’ve always been
on sick leave.” Response, SAMF, at 4, ¶ 1; Achors Dep., pp. 64-66. He made additional,
similar comments prior to October 15, 2014: (1) he commented about her being in the
hospital, (2) he said that she is a “mental patient,” (3) he asked her husband, “How
could you stay with her? She’s a bitch,” and (4) he asked her husband, “How could you
stay with her when she’s crazy.” Id., at 4, ¶ 3; Achors Dep., p. 72. Ms. Achors testified
that Mr. Larrison made many such comments to her, “one after another.” Achors Dep.,
According to Ms. Achors, on October 15, 2014, she and Mr. Larrison attended a
fundraiser at the plant and were present in the dunk tank area. In return for a five
dollar donation, a thrower received five balls to throw at the tank. Mr. Larrison was
getting ready to get in the dunk tank when Ms. Achors said to others that she would
donate ninety dollars to anyone who could dunk him. Ms. Achors testified that, after
someone told Mr. Larrison what she had said, he approached her and said, “Yeah, well
I know somebody that would give $2,000.00 if you go home and shoot yourself in the
head.” Defendant’s Brief, SMF, at 7; Achors Dep., pp. 72-73. 2 On October 21, 2014, Ms.
Achors reported Mr. Larrison’s alleged October 15, 2014, comment to James Smith, an
FCA Labor Relations representative at the time, and Mr. Smith investigated. He
interviewed Mr. Larrison, who denied making the statement, and two witnesses whom
Ms. Achors had identified as having heard the comment, but those witnesses denied
hearing it. No disciplinary action was taken against Mr. Larrison. Response, SMF, at 7-8.
Ms. Achors testified that, after she had reported Mr. Larrison’s comment to Mr.
Smith, Mr. Larrison said to her in passing, “You was stupid. That was about dumb of
Mr. Larrison’s version of this event was significantly different. Defendant’s Brief, Exhibit D,
Excerpts of Myron Larrison, Jr.’s Deposition [doc. 35-4], at deposition pp. 23-27.
you to do something like that.” Response, SAMF, at 4, ¶ 4; Achors Dep., pp. 78-79. Mr.
Larrison has testified that he did not make the comment. Defendant’s Brief, SMF, at 8 n.
November 11, 2014, incident. On November 11, 2014, Ashley Baugues, a Safety
Specialist at the Kokomo Transmission Plant, told Deidre Fultz, a Manufacturing
Manager, to find a job for Ms. Achors that would accommodate her medical restrictions.
Before this date, Ms. Fultz had not met or interacted with Ms. Achors, and she was
unaware of her restrictions and previous accommodations. Ms. Baugues explained Ms.
Achors’s restrictions to Ms. Fultz and Ms. Fultz responded that they could create an
accommodating work area where Ms. Achors would be prevented from having to see
moving objects. Ms. Fultz helped set up the workstation where Ms. Achors would be
performing her new job of taking parts out of a tub and placing them into a cart to be
taken to the assembly line. Curtains were installed to block Ms. Achors’s view of
“vehicular traffic” (apparently, motorized carts driven by employees), and she was
supplied with an ergonomic chair. In performing these tasks, Ms. Achors was able to
face toward the wall. Defendant’s Brief, SMF, at 8-9.
When Ms. Achors arrived at her work area, she questioned why the curtains
were placed to block the aisleway but would not block her view of a moving conveyor
belt, which she claimed would be visible when she would turn to retrieve parts from
the tubs. Ms. Achors testified that Ms. Fultz responded that the aisleway was screened
so that other employees would not stop their passing carts and talk to her, and that she
should not worry about viewing the conveyor belt, since she was to stare at the wall.
Because this would entail her having such a limited view, Ms. Achors asked that her
union steward be called. Defendant’s Brief, SMF, at 9; Response, Statement of Disputed
Material Facts (“SDMF”), at 3; Achors Dep., pp. 86-87.
Ms. Achors testified that, at that point, a heated altercation commenced between
her and Ms. Fultz, with Ms. Fultz screaming at her and spit getting on her face and in
her mouth. Ms. Achors told Ms. Fultz to “get the f out of my face.” Defendant’s Brief,
SMF, at 9; Response, SDMF, at 5, ¶ 10; Reply, RSAMF, at 9, ¶ 10; Achors Dep., p. 87. Ms.
Fultz asked Ms. Achors to get on her cart to go to Labor Relations and Ms. Achors
refused. Ms. Fultz called security. Security officers arrived and asked for Ms. Achors’s
badge. She refused to give it to them and told them not to touch her. Ms. Achors’s
union committeeman and union steward arrived at the area, as did Mr. Smith and his
boss, Doug Lutes, the Labor Relations Supervisor. Mr. Lutes asked for Ms. Achors’s
badge and she complied. Either the union committeeman and steward walked her out
of the Plant, Defendant’s Brief, SMF, at 10; Achors Dep., pp. 87-89, or security escorted her
out, Fultz Dep., p. 23.
Ms. Achors was indefinitely suspended as a result of the incident. Ms. Fultz and
Mr. Smith denied making the decision to suspend her. Consistent with standard
practice at the plant in cases of suspension, Ms. Achors’s union grieved the suspension
and Mr. Smith investigated the incident as part of the grievance process. He considered
a statement written by Ms. Fultz and signed by her and Ms. Baugues 3 and he
interviewed other witnesses. Ms. Fultz’s statement related that Ms. Achors screamed
and yelled throughout the incident; engaged in threatening behavior; and refused to
surrender her badge to security before finally handing it to Mr. Lutes. An agreement
was reached between FCA and the union whereby Ms. Achors’s indefinite suspension
was amended to allow her to return to work on January 20, 2015. Defendant’s Brief,
SMF, at 10-11; Response, SDMF, at 3.
In her response, Ms. Achors has abandoned her claims under the Family Medical
Leave Act, 29 U.S.C. § 2601, et seq., Complaint, Count Two, and her ADA claims based on
her termination, id., Count One ¶¶ 50, 52, and last clause of 51. Response, at 1 n. 1. What
remain are three claims under the ADA: (1) FCA failed to provide her with reasonable
accommodations for her Tardive dyskinesia; (2) FCA’s suspension of her in November
2014 because of her disability, her requests for accommodation, and/or her complaint
of harassment because of her disability; and (3) FCA subjected her to a hostile work
environment because of her disability. Response, at 7.
A. Reasonable accommodation.
The elements of a failure-to-accommodate claim under the ADA are: (1) the
3 Ms. Fultz had Ms. Baugues review and sign Ms. Fultz’s statement because Ms. Baugues “was
the safety specialist who brought [Ms. Achors] to my office and asked me to create a work environment . .
. .” Fultz Dep., p. 29. At her deposition, Ms. Fultz stated that she thought Ms. Baugues also was present
during the incident but honestly could not recall. Id. The statement does not state that Ms. Baugues was
present. Ms. Achors disputes that Ms. Baugues was present.
plaintiff is a qualified individual with a disability; (2) her employer was aware of her
disability; and (3) her employer failed to reasonably accommodate her disability. Equal
Employment Opportunity Commission v. Autozone, Inc., 809 F.3d 916, 919 (7th Cir. 2016).
There is no dispute for purposes of the present motion that Ms. Achors has a disability
and that FCA was aware of it. Ms. Achors claims that FCA failed three times to
reasonably accommodate her Tardive dyskinesia: (1) a job created for her in 2012
involved moving machinery; (2) the workstation created by Ms. Fultz on November 11,
2014, allowed Ms. Achors to see the moving conveyer line; and (3) in an unspecified
manner, FCA failed to accommodate her during her disciplinary suspension from
November 11, 2014, to January 20, 2015.
FCA makes an initial, general argument that Ms. Achors is not a “qualified
individual.” A “qualified individual” is a person who, “with our without reasonable
accommodation, can perform the essential functions of their employment position,” 42
U.S.C. § 12111(8), which are the fundamental job duties of the position, as opposed to
the marginal functions, 29 C.F.R. § 1620.2(n)(1). FCA contends that Mr. Achors was
hired “as an assembly employee” and that she worked “normal assembly line jobs”
until she submitted her medical restrictions in 2001. Defendant’s Brief, SMF, at 5. In
support, it cites Ms. Achors’s testimony that the position for which she was hired was
an “Assembly” position; that “it was just an assembly line” for transmissions, Achors
Dep., p. 16; and that, before her diagnosis, she was doing “[j]ust normal jobs” on an
assembly line, id., at p. 34. FCA argues that, because Ms. Achors cannot show that she
can perform her “normal” assembly-line job with or without reasonable
accommodation, she was not a qualified individual with a disability and, therefore,
cannot prove that FCA failed to reasonably accommodate her disability.
In this litigation, Ms. Achors disputes that she was an assembly-line employee.
She contends that she “was hired as a[n] hourly employee, a team member” and that
FCA referred to her as “an hourly production team member.” Response, SDMF, at 2. In
support, she cites several items of evidence: (1) Mr. Smith’s answer, when asked what
her position was when he first met her in 2014, that “[s]he’s an hourly employee, a team
member.” Plaintiff’s Appendix of Evidence [doc. 59] (“Plaintiff’s App.”), Exhibit 1, Excerpts
from the Deposition of James Smith [doc. 59-1] (“Smith Dep.”), at p. 36; (2) FCA’s answer
when it was asked to identify dates and title for each position that Ms. Achors held, that
she “was an hourly production team member during her entire employment,” Plaintiff’s
App., Exhibit 2, Defendant’s Answer to Interrogatory no. 8 [doc. 59-2]; (3) Ms. Achors’s
testimony that she performed jobs such as inspector and part-deburrer, which occurred
away from the assembly line, Response, at 2; Achors Dep., p. 19; and (4) evidence that
those jobs would have been performed by other hourly employees if she had not
performed them, Achors Affidavit, ¶ 5; Response, Exhibit 4, Excerpts from Deposition of
Yvonne Dean [doc. 59-4] (”Dean Dep.”), p. 5.
Ms. Achors’s point appears to be that, because the job for which she was hired
included some non-assembly-line functions, it was not strictly an “assembly-line” job
and she was qualified to perform it because she could still perform the non-assembly10
line functions. However, significantly, she does not assert or cite supporting evidence
that assembly-line work was not a substantial part of her job or that any other employee
hired for her position exclusively performed non-assembly-line work. She, moreover,
does not explain or cite any evidence showing why her cited labels of “hourly
employee,” “team member,” or “production team member,” are necessarily inconsistent
with FCA’s cited labels of “assembly employee” or “assembly line job,” or with a job
whose essential functions are performed primarily or substantially on an assembly line.
We note that the parties have not presented what should have been easily
obtained, and more convincing, evidence of the essential functions of the job for which
Ms. Achors was hired and which she actually performed. For example, written job
descriptions and affidavits or declarations from co-workers, supervisors, and human
resources describing her job would have been informative and helpful. However,
taking the evidence and arguments that have been presented relating to the present
motion, we conclude that FCA has shown, primarily from Ms. Achors’s own
descriptions and admissions, 4 that an essential function of her initial job was assemblyline work and Ms. Achors has not shown that there is a genuine dispute about that fact.
Ms. Achors has not alleged or argued that there were reasonable accommodations that
would have permitted her to perform her assembly-line job and she has not shown that
FCA had vacant, permanent positions to which it could have transferred her as a
The Court also notes that, in her affidavit, Ms. Achors distinguishes between “assembly
departments,” in which she worked before her restrictions, and “production departments,” to which she
was lent out after her restrictions and which “consist of jobs away from the assembly lines, and are not
assembly departments.” Achors Affidavit, ¶ 4.
reasonable accommodation. Thus, if the job for which the ADA requires FCA to
provide reasonable accommodation is Ms. Achors’s original assembly-line job, then
there is no genuine dispute that she was not a qualified individual with a disability.
However, there is a genuine issue of fact about the precise job that FCA was
required to accommodate. Ms. Achors was diagnosed with Tardive dyskinesia and
submitted her medical restrictions in 2001. FCA has not questioned her diagnosis or her
restrictions. For twelve years, FCA assigned Ms. Achors to a series of jobs away from
the assembly line that complied with her restrictions. She was off work for
approximately three months in 2001, after her initial seizure and submission of
restrictions, and she was off for approximately two years from 2012 to 2014 on the
“Code 31,” during which she received approximately ninety percent of her wage.
Response, SAMF, at 4 ¶ 2; Reply, RSAMF, at 6 ¶ 2. As noted above, FCA called her back
to work when they found work for her to do. Thus, for fourteen years, from her notice
of disability in 2001 to her termination in April 2015, FCA maintained Ms. Achors on
the payroll, mostly while working and all of that work in non-assembly positions.
Ms. Achors testified that she was “more or less called a float” throughout the
time she was employed after her diagnosis and restrictions. Achors Dep., pp. 18-19. She
performed a series of temporary assignments, e.g., inspector, deburrer, machineries
work, machine counts, office computer work. Id., pp. 16-22, 70-71. She testified that
FCA did a good job of finding work for her that complied with her restrictions. Id., pp.
24, 34. She did not bid on a permanent position through the union during this time but
only continually worked a series of positions. Id., at 18. Ms. Achors contends that she
was qualified to (and actually did) perform, with or without reasonable
accommodation, all of the jobs that she performed during her fourteen years from 2001
to her termination.
FCA argues that, while it found various positions for Ms. Achors to perform that
met her restrictions, it “was under no obligation to find these light duty positions for
Achors on an indefinite basis.” Defendant’s Brief, at 15. Although FCA is correct that the
ADA does not require an employer to create a new job for a disabled employee as a
reasonable accommodation, Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL
4160849, *4 (7th Cir., Sept. 20, 2017); Stern v. St. Anthony’s Health Center, 788 F.3d 276,
291 (7th Cir. 2015), it can be a question of fact whether an employer has, in fact, done so,
see, Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 697-98 (7th Cir. 1998); Razote v. Potter,
833 F.Supp.2d 913, 917-18 (N.D. Ill. 2011); Vojaskovic v. Premier Manufacturing Support
Services, No. 1:05-cv-116-TAB-DFH, Entry on Defendant’s Motion for Summary Judgment,
2006 WL 1594509, *3-5 (S.D. Ind., June 6, 2006).
In the present case, while there is no suggestion or evidence in the record that
FCA has a formal light-duty program for temporarily disabled employees to continue
working on the payroll until their restrictions are lifted, the undisputed evidence is that
FCA employed Ms. Achors for fourteen years after she became disabled and
continuously assigned her work as a “floater” for twelve of those years. It might not
have been a formally designated permanent job, open for union bidding, and FCA
might not have consciously considered whether it should be so designated and might
always have believed that it was not obligated to keep Ms. Achors employed, but it did,
in fact, so employ her for fourteen years, in positions that met her restrictions. 5
In these circumstances, we conclude that it is a genuinely disputed fact question
whether FCA’s assignment of Ms. Achors to the floater position for fourteen years
“must be treated as a reassignment to a permanent job for purposes of
accommodation.” Hendricks-Robinson, 154 F.3d at 697. There is no evidence that the
float job that Ms. Achors performed had the nature of a temporary, short-term lightduty job to which FCA voluntarily transferred her until she either recovered from her
disability or a different permanent job became vacant. There is no evidence that FCA
ever described the job in those terms to Ms. Achors. The fact that her floater job
persisted for fourteen years ― long after any characterization of the job as temporary or
short-term was reasonable, long after any idea of recovery 6 and return to the assemblyline was practical, and presumably after several permanent positions had become
vacant ― is a strong indication that it was not a temporary, stop-gap assignment. If the
factfinder were to find that Ms. Achors’s job, for ADA purposes, was her floater job,
then that is the job for which she must be a qualified individual and which FCA was
required to have provided reasonable accommodation, not her original assembly-line
“The evidence overwhelmingly shows that FCA US accommodated Achors for 14 years.” Reply,
The Court notes that Ms. Achors testified that, pursuant to FCA’s policy, her disability had been
re-evaluated every six months since it was diagnosed and, each time, the medical restrictions were
confirmed throughout her employment. Neither side described Ms. Achors’ prognosis as far as her
Tardive dyskinesia, whether recovery is possible and when or whether it is a permanent disorder.
job that she stopped performing over fourteen years earlier.
Viewing the evidence in the light most favorable to Ms. Achors and drawing all
reasonable inferences in her favor, the Court concludes that there is a genuine dispute
of fact that is material to the issue of whether she is a qualified individual with a
disability and that FCA is not entitled to summary judgment on that issue. However,
after analyzing the other elements of her claims, we conclude that Ms. Achors cannot
survive summary judgment.
1. 2012 incident. Ms. Achors argues that a particular job workstation that was
set up for her in 2012 involved an assembly line and moving machinery. She alleges
that, when she pointed out that the workstation did not comply with her restrictions,
the responsible safety specialist disagreed and told her that she would have to work the
job or be fired. She worked the job, suffered another seizure, and was off work on the
“Code 31” for two years. Response, SAMF, at 5, ¶ 6.
Ms. Achors cannot assert any claim based on this incident because she did not
plead it in her Complaint, Connor v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680
(7th Cir. 2005), and because it falls outside the scope of her EEOC charge.7 Her charge
was filed on April 8, 2015, Complaint, ¶ 37, which places the 2012 incident well beyond
the 300-day window for filing an EEOC charge, 42 U.S.C. § 2000e-5(e)(1); Majors v.
General Electric Co., 714 F.3d 527, 536 (7th Cir. 2013) (“A charge filed beyond the 300-day
Ms. Achors cannot (and does not) allege that this 2012 incident is only one part of a continuing
pattern or practice by FCA of failing to accommodate because, as noted above, she testified that FCA did
a good job of finding her jobs that complied with her restrictions.
period is untimely and barred.”).
2. November 11, 2014, incident. Ms. Achors argues that “[i]t is undisputed that
Defendant failed to accommodate Achors on November 11, 2014 . . . .” Response, at 9.
This is the date on which she was introduced to the workstation prepared by Ms. Fultz
that led up to their altercation and resulted in Ms. Achors’s suspension. She did not
explain the basis of her claim but we presume that she contends that the workstation
failed to accommodate her disability because it failed to screen the moving conveyor
line from her view. 8 FCA did not directly respond to this argument, apparently relying
only on its general argument that, because Ms. Achors was not a qualified individual, it
had no obligation to accommodate her disability. We rejected this argument above.
However, Ms. Achors’s claim still does not survive. Regardless of whether Ms.
Achors’s, FCA’s, or another version of the facts of the November 11, 2014, altercation is
credited, it is undisputed that Ms. Achors never worked the job for which the
workstation was created. According to both sides’ versions, the altercation between Ms.
Fultz and Ms. Achors began almost immediately after Ms. Achors arrived at the
workstation, and Ms. Achors was ultimately ejected from the plant and suspended for
approximately two months after her outburst. There is no evidence that, when she
FCA does not argue, as it did with regard to the 2012 incident, that Ms. Achors did not plead
this claim, although it appears that she did not. Regarding this 2014 incident, the Complaint initially
alleges that Ms. Achors accepted, as an accommodation, the job that was offered to her on November 11,
2014, Complaint, ¶ 23, and then it alleges circumstances of the altercation that quickly transpired between
her and her supervisor and Ms. Fultz, id., ¶¶ 24-27, without any mention of insufficient screening or a
request for further accommodation. Because Ms. Achors does not elaborate in her Response on the nature
of her claim, the Court speculates as best as it can.
returned, she ever worked at the workstation in issue. Because she separately claims
that FCA’s suspension was discriminatory and retaliatory, her claim here is solely that
FCA failed to set up the workstation in compliance with her restrictions. 9 If Ms. Achors
was suspended because of anti-disability discrimination or retaliation, it was not
because the workstation curtains did not screen the conveyor line.
We hold that Ms. Achors’s claim that the November 11, 2014, workstation did
not reasonably accommodate her disability is untenable on the facts before us because
she was suspended before even working at the workstation and she did not return to it.
3. Suspension from November 11, 2014, to January 20, 2015. Ms. Achors argues
that “[i]t is undisputed that Defendant failed to accommodate Achors . . . during her
suspension from November 11, 201 to January 20, 2015.” Response, at 9. 10 She does
not explain how FCA could have accommodated her work restrictions when she was
away from work during her suspension and the Court cannot imagine what such an
accommodation might be. She has a separate claim, addressed below, that her
suspension was the result of unlawful discrimination and retaliation. Therefore, we
reject Ms. Achors’s claim that FCA failed to accommodate her disability during her
Ms. Achors did not allege and does not argue that FCA intentionally set up a non-compliant
workstation in order to create or catalyze the altercation in service of a scheme to manufacture a
justification for dismissing her. Neither Ms. Achors’s pleadings nor her arguments here fairly include
such an allegation. At any rate, shoehorning such an allegation into a failure-to-accommodate claim is
awkward when her discrimination/retaliation claim appears to be a more natural fit.
This claim as stated in the Response also appears not to have been pled.
B. Hostile work environment.
Ms. Achors claims that FCA created a hostile work environment for her as a
disabled person who had invoked her rights under the ADA. Complaint, Count One, ¶
49. She relies on two incidents of harassment: first, comments made by Mr. Larrison to
her, 11 and, second, her altercation with Ms. Fultz at her new workstation on November
11, 2014, which resulted in her suspension, id., ¶¶ 23-27. Both incidents are described
We assume, without deciding, that a hostile work environment is actionable
under the ADA and that the standard for that claim is the same as under Title VII. See
Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005) (the court of appeals has not decided
whether such a claim exists).
A hostile work environment exists where an employee experiences
harassment that is “so severe or pervasive as to alter the conditions of
employment and create an abusive working environment.” A plaintiff
establishes an alteration in the terms and conditions of employment by
demonstrating either a tangible employment action, such as discharge or
demotion, or a non-tangible action, such as discriminatory conduct that is
so severe or pervasive as to create an “abusive” working environment.
Furthermore, the plaintiff must demonstrate that the workplace was both
subjectively and objectively hostile. An objectively hostile environment is
one that a reasonable person would find hostile or abusive.
According to Ms. Achors’s testimony, she did not work with Mr. Larrison, did
11 The Complaint alleges only the October 15, 2014, comment by Mr. Larrison at the fundraiser.
Complaint, ¶ 18. It alleges simply that Mr. Larrison told her “to go home, put a gun to her head and shoot
herself.” Id. The evidence adduced on the present motion provides a different version of that event, as
described above. In addition, on the present motion, Ms. Achors’s argument includes the additional
comments by Mr. Larrison described in the text.
not know what his job was, and encountered him only in passing in the plant and in the
outside smoking area during breaks. She testified to only a handful of brief comments
that he made to her over a short time period, after she returned to work from her twoyear “Code 31.” It appears that all of his comments, before her report to Labor
Relations, were made only during a part of October 2014. Achors Dep., pp. 63-66, 72-73.
On October 21, 2014, Ms. Achors reported Mr. Larrison’s fundraiser comment to Labor
Relations, including in that report some reference to his earlier comments (she did not
report those comments before), and stating that she believed that his comments were
related to her disability. Labor Relations investigated her report but determined that
Mr. Larrison denied making the comment, Smith Dep., pp. 9, 46, and Ms. Achors’s two
identified witnesses to the fundraiser comment did not corroborate her report, id., p. 9.
She has not asserted any deficiency in FCA’s investigation or its handling of Mr.
Larrison’s alleged harassment otherwise. She testified that, at some time after the
investigation, Mr. Larrison made an unspecified number of passing remarks to her in
the workplace about her complaint to Labor Relations, but she did not report them to
FCA. Achors Dep., pp. 78-79.
The limited number of brief comments, made over a brief time period, by Mr.
Larrison, who did not work with Ms. Achors and whom she saw only periodically and
in passing, were not objectively severe or pervasive enough to alter the terms and
conditions of Ms. Achors’s employment or to create an abusive work environment. In
addition, by not alleging or arguing any deficiency in FCA’s response to her reports of
Mr. Larrison’s comments, Ms. Achors has not shown any factual or legal basis for a
reasonable jury to find that FCA is liable for creating or maintaining a hostile work
Likewise, Ms. Achors’s claim that Ms. Fultz was hostile to her during their
altercation at the workstation on November 11, 2014, describes an incident, not a
pervasively or severely hostile or abusive work environment that altered the terms or
conditions of her employment. Moreover, Ms. Achors’s argument that her suspension
proves that the terms and conditions of her employment were altered is incorrect.
There is no evidence that Ms. Achors was suspended because Ms. Fultz was hostile;
rather, Ms. Achors was suspended, according to FCA, because she was insubordinate
and belligerent or, according to Ms. Achors, because FCA retaliated against her because
of her disability, accommodation request, or disability complaint. Finally, Ms. Achors’s
argument that Ms. Fultz’s alleged hostility should be considered in conjunction with
Mr. Larrison’s alleged hostility in order to establish a pervasive hostile environment at
FCA is unconvincing because she does not assert or prove any facts or circumstances
that establish a connection between the two incidents.
There is no genuine dispute of material fact and FCA is entitled to judgment as a
matter of law on Ms. Achors’s claim of a hostile work environment.
C. Discrimination and retaliation.
Ms. Achors next claims that FCA suspended her on November 11, 2014 because
she is disabled and because she requested accommodation, engaged in the interactive
process, and/or complained about FCA’s discrimination and retaliation. Her version of
events, as related in her deposition testimony, is that she told Ms. Fultz that she would
work the job that Ms. Fultz had set up for her but that, when she arrived at the
workstation site and commented that she could still see a moving conveyor line and
requested her union steward, Ms. Fultz immediately became agitated with her, told her
that she could stare at the wall for ten and on-half hours, started screaming and spitting
at her, and accused her of thinking that she could get any job that she wanted. Response,
at 9-10. Ms. Achors contends that this behavior shows animosity and prejudice against
her because she is disabled and because she was requesting an accommodation. Id., at
10. To prove disability retaliation, Ms. Achors must prove that she suffered an adverse
employment action because she engaged in protected activity, namely requesting an
accommodation or complaining about disability discrimination. See Lord v. High
Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016).
Under the “cat’s paw” theory of Staub v. Proctor Hospital, 562 U.S. 411 (2011), Ms.
Achors contends that the statement that Ms. Fultz wrote for Labor Relations after the
incident caused it to suspend her and, therefore, Ms. Fultz’s retaliatory animosity
against her was a motivating factor for her suspension. She argues that “[t]here is no
evidence in this case that labor relations relied on anything but Fultz’s statement,”
Response, at 11, and that “[a] jury could reasonably determine that Fultz was biased
against Achors for requesting an accommodation and seeking to engage in the
interactive process, and that Fultz’s report was a motivating factor, if not the cause of
Defendant’s retaliatory decision to suspend Achors,” id.
The versions of the incident related by Mr. Smith and Ms. Fultz differ
significantly from that of Ms. Achors. Smith Dep., pp. 10-11, 38-41; Smith Declaration, ¶
5; Fultz Dep., pp. 20-31. These versions depict Ms. Achors, upon arriving at the
workstation, immediately rejecting it and becoming belligerent, screaming and yelling,
being insubordinate, and refusing repeated direct orders from supervisors, Labor
Relations, and security to calm down, to accompany them to Labor Relations, to
surrender her badge, and to leave the plant. While neither side cited evidence of who
ultimately made the decision to dismiss Ms. Achors, the deposition testimony adduced
by FCA shows that the it was made during the incident, possibly by Ms. Achors’s
immediate supervisor or the head of security.
FCA argues several facts and circumstances that tend to show that Ms. Fultz was
not in any way antagonistic to Ms. Achors on account of her disability or request for
accommodation: for example, Ms. Fultz had never met or interacted with Ms. Achors
before, she did not know that her medical restrictions were longstanding, and she set
up the workstation to comply with her restrictions. At best, FCA’s evidence and
inferences might support an inference that Ms. Fultz was angry because Ms. Achors
was rejecting the accommodation that was designed for her, not because she was
requesting more accommodation. FCA also argues that there is no evidence that Ms.
Fultz decisively influenced the suspension decision because (1) her written statement
was submitted only after Ms. Achors was suspended, (2) the statement was considered
by Labor Relations only in relation to the union’s subsequent grievance of the
suspension, (3) other employees witnessed and reported Ms. Achors becoming
belligerent, aggressive, and insubordinate during the incident, and (4) Ms. Achors
admitted being insubordinate (e.g., by using profanity with Ms. Fultz, refusing to go to
the Labor Relations office, and refusing to surrender her badge). Defendant’s Brief, at 2224.
While this constellation of allegations and evidence regarding the circumstances
of the November 11, 2014, incident presents many factual disputes that ordinarily
would be reserved for the trier of fact, evidence of a critical fact is missing. The ultimate
issue is whether FCA, by suspending Ms. Achors, discriminated and retaliated against
her. Ms. Achors has presented no evidence of who made the decision to suspend her,
why that decision was made, and what information was considered. Both Mr. Smith
and Ms. Fultz deny making the decision, 12 and Mr. Smith said that he considered Ms.
Fultz’s written statement only after Ms. Achors had been suspended, as part of his
investigation of the union’s grievance. Without evidence of the crucial facts relating to
the decision-maker, Ms. Achors’s cats-paw theory and her reliance on Ms. Fultz’s
alleged animosity toward her disability and/or to her accommodation requests are
12 Mr. Smith testified the dismissal or suspension decision already had been made or was in
process by the time he arrived at the scene and that he had no involvement in ordering Ms. Achors to
leave the plant. Smith Dep., p. 40; Smith Declaration, ¶ 5. Ms. Fultz denied making the decision to suspend
and thought that Labor Relations had made it. Fultz Dep., p. 25.
Mr. Lutes, Labor Relations manager, was on the scene at the workstation, Fultz
Dep., p. 22, 23, 27, as was Steve Degenkolp, the area supervisor, 13 who apparently was
on site from the beginning of the altercation, id., pp. 19-21. This at least places them as
well within the group of possible decision-makers. In addition, according to Ms. Fultz,
Jack Johnson, the head of security, was present and instructed Ms. Achors that refusal
to surrender a badge on request is grounds for immediate dismissal, Fultz Statement
[doc. 35-5], at 2, but Ms. Achors continued to refuse. Ms. Fultz testified that Mr. Lutes
also instructed Ms. Achors that, contractually, she was required to surrender her badge
when requested by security to do so, but she continued to refuse. Fultz Dep., p. 23. Ms.
Fultz also stated that Mr. Johnson eventually ended the altercation, saying “enough is
enough” and “this has gone on way too long, she needs to leave,” and directing security
to escort her off the premises. Fultz Dep., p. 23. When Mr. Lutes told Ms. Achors to
either return to work or be dismissed and she refused to return to work, Mr. Johnson
declared that it was way past the point of her staying on the job due to her refusals to
hand over her badge. After asking her three times for her badge, Ms. Johnson
instructed security to take her out without her badge. Fultz Statement, at 2. These
portions of the submitted evidence are cited only to show that there were more persons
present during the November 11, 2014, incident than Mr. Smith and Ms. Fultz, any of
whom could have had the authority to dismiss or suspend Ms. Achors based on their
Ms. Fultz declared that Mr. Degenkolp told Ms. Achors during the incident that he was her
“immediate supervisor” and gave her a direct order to go to Labor Relations. Fultz Statement [doc. 35-5]
own observations and reports from others.
Ms. Achors’s failure to adduce any evidence of the decision-maker for her
suspension is fatal to her claim. Accordingly, we conclude that she has not shown a
genuine dispute of fact material to her claim of disability discrimination and retaliation
as a result of her suspension and that FCA is entitled to judgment as a matter of law on
Defendant’s Motion for Summary Judgment [doc. 34] is GRANTED as to all of Ms.
Achors’s claims. Because she abandoned her claims under the Family Medical Leave
Act and her ADA claim, they will be included in the judgment as well.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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