Opinion
IP 98-1621-C-M/S
July 30, 2003
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the motion of defendant, Vencor Nursing Centers, Limited Partnership, d/b/a Regency Place of Greenfield ("Regency Place"), for summary judgment on the claims of plaintiff, Richard L. Darst, Trustee in Bankruptcy for Rhonda K. Maupin ("Maupin") and Steven E. Maupin ("Plaintiff"). Plaintiff's complaint alleges that Regency Place discriminated against Maupin, who has diabetes and hypothyroidism, on the basis of her disability and perceived disability in regard to the terms, conditions and privileges of Maupin's employment. Regency Place has moved for summary judgment on the bases that Maupin is not disabled, and that even if she were, Regency Place did not fail to make reasonable accommodations, Maupin was not otherwise qualified to perform her essential job duties, and that Regency Place did not terminate Maupin because of her alleged disability. Because the Court finds that Maupin was not disabled or regard as disabled, Regency Place's motion is GRANTED.
I. BACKGROUND A. EVIDENTIARY ISSUES
Before reciting the relevant facts, it is necessary to explain that the Court did not consider certain evidence Plaintiff submitted in opposition to Regency Place's motion. Regency Place first took Maupin's deposition in 1999. In September of 1999, pursuant to this Court's local summary judgment procedure at the time, Regency Place served on the Plaintiff, but did not file, a motion for summary judgment. The Plaintiff, in turn, served on Regency Place, but did not file, a response. See Regency Place's Reply in Support of Motion for Summary Judgment ("Reply Brief") at 2 n. 1. This case was dismissed on October 4, 1999, after Regency Place filed for bankruptcy, and was reopened on May 23, 2002. On December 13, 2002, Regency Place took Maupin's deposition again. In her second deposition, Maupin provided testimony that significantly differed from her original testimony, mostly with regard to her health condition.Regency Place argues that the Court should disregard Maupin's later testimony on the grounds that it is an attempt to create fact issues. Regency Place's Brief in Support of Motion for Summary Judgment ("Brief in Support") at 18-19. Regency Place further argues that Maupin's 2002 testimony is not credible in light of her 1999 testimony and the medical evidence. Id. Plaintiff argues that Maupin's 2002 testimony is not contrary to her 1999 testimony, but rather is in response to more specific questions. Plaintiff's Response to Defendant's Motion for Summary Judgment ("Response Brief") at 19. Plaintiff also argues that the Court should not make a credibility determination, but should examine all of the evidence in the record. Id. at 20.
The inconsistencies in Maupin's testimony, by themselves, do not create fact issues sufficient to preclude summary judgment. "Self-contradictory and logically suspect testimony is simply not sufficient to support a jury finding that [Maupin] was disabled." Plant v. Morton Int'l, Inc., 212 F.3d 929, 937-38 (6th Cir. 2000) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)). The Court is entitled to find that where a plaintiff's self-serving assertions are not supported by any of the evidence in the record, such as medical records, the plaintiff has produced no evidence from which a jury might find the plaintiff was disabled. See Stein v. Ashcroft, 284 F.3d 721, 726-27 (7th Cir. 2002). It is true that the Court should not make credibility determinations; however, the Plaintiff should not "confuse credibility issues with the district court's duty to ignore sham issues in determining the appropriateness of summary judgment." Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir. 1985). It is the Plaintiff's burden to come forth with evidence demonstrating Maupin is disabled within the meaning of the ADA. See Stein, 284 F.3d at 727. If the Court finds that the Plaintiff cannot meet this burden, summary judgment is appropriate. Id.
In Stein v. Ashcroft, the plaintiff alleged her impairment caused her to be substantially limited in several "major life activities." However, the only evidence of these limitations was the plaintiff's own conclusory assertions, which were not supported by the medical evidence. Id. at 726. The plaintiff failed to provide any factual support for her allegations in the form of examples or details. Id. In fact, the medical evidence in Stein tended to show that the plaintiff's condition was under control and her doctors had not imposed any specific limitations on her activities. Id. Thus, the plaintiff's conclusory assertions could not support her claim.
Some of Maupin's 2002 deposition testimony includes the same sort of unsupported, conclusory assertions as those in Stein. Moreover, some of Maupin's 2002 testimony simply is not believable in light of her 1999 testimony and the medical evidence in the record. For example: In 2002 Maupin testified that her health condition limited her life activities of running, talking, eating, drinking, learning, seeing, sleeping, and taking care of herself. Deposition of Rhonda Maupin ("Maupin Dep.") Vol. 3:5, 42. Maupin also testified in 2002 that her blood sugars were "out of control," that she had hypoglycemic episodes daily, and that they lasted up to 30 minutes. Id. Vol. 3:6-7, 26. Maupin also now claims that while she worked at Regency Place, co-workers assisted her during a hypoglycemic episode at least two or three times per week. Id. Vol. 3:9. Maupin testified in 2002 that she blacked out once or twice a week during a two-month period while she was working for Regency Place. Id. Vol. 3:25. As will be shown in I.B., below, this testimony is in contrast with the testimony Maupin gave in 1999, and is not supported by her medical records. Maupin's 2002 testimony becomes more suspect when the Court considers that following her first deposition, Maupin and the Plaintiff had the opportunity to read Regency Place's arguments in support of summary judgment.
Plaintiff also has offered Maupin's affidavit, dated February 15, 2003, in opposition to Regency Place's motion. Where Maupin's affidavit conflicts with her earlier deposition testimony, the Court will disregard the affidavit. See Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001). "It is by now well-settled that a party may not attempt to survive a motion for summary judgment by manufacturing a factual dispute through the submission of an affidavit that contradicts prior deposition testimony." Id.
Maupin's affidavit conflicts with her deposition testimony where she, for example, alleges that she monitored her sugar level eight times a day, Maupin Aff. ¶ 11, and that she requested the accommodation of emergency leave for her past absences from work and emergency leave for any future absences, Maupin Aff. ¶ 56. Other inconsistencies include assertions Maupin also made in her 2002 deposition.
The Court has considered all of the admissible, credible evidence from both of Maupin's depositions, and has based its decision on that evidence as a whole.
B. RELEVANT FACTUAL BACKGROUND
Maupin has had diabetes since the age of 8. Maupin Dep. Vol. 1:8. While in college, Maupin was diagnosed as a "brittle diabetic." Id. This means that Maupin is prone to serious fluctuations in her blood sugar level that can be very dangerous. Id. Vol. 1:9. Maupin, a registered nurse, graduated from nursing school in 1989. Id. Vol. 1:8-9. Maupin has testified that her diabetes did not interfere with her training or education to become a registered nurse. Id. Vol. 1:8. However, Maupin also has testified that she had a "disability scholarship" in college. Maupin Aff. ¶ 24. Maupin had to take the State nursing examination three times because she was so nervous that she would not eat before the exam, causing her blood sugar level to be low. Maupin Dep. Vol. 3:29. However, when her blood sugar was within a normal level, she did not experience problems. Id.
Following college, Maupin worked continuously in the health care field. Maupin Dep. Vol. 1:74-75. Immediately prior to working for Regency Place, Maupin worked as Director of Nursing at Hillside Haven. Id. Vol. 1:78. At Hillside Haven, Maupin was on call for 24-hour days, seven days a week. Id. Maupin testified that she "loved the job, [but] just felt like [she] needed a little bit of time at home because [she] had the young child." Id.
Maupin's diabetes was controllable by medication and she functioned normally as a registered nurse prior to working for Regency Place. Id. Vol. 1:11. Prior to working for Regency Place, Maupin's diabetes did not interfere with her work performance. Id. Vol. 1:9. Maupin's doctors, in December, 1995, believed Maupin had "better than average control" of her diabetes. RM0009. Maupin checked her blood sugar level four to six times a day. Id. Vol. 1:40; RM 0010. If Maupin felt an episode coming on she would check her blood sugar level with a glucometer. Maupin Dep. Vol. 3:7. Prior to working for Regency Place, Maupin had experienced only one episode of serious fluctuation in her blood sugar level. Id. Vol. 1:9. During that episode, Maupin's husband was unable to bring Maupin's blood sugar to a stable level, and had to call an ambulance. Id. Vol. 1:10. Maupin does not know what caused that episode of dangerously low blood sugar. Id. Maupin estimated that during the time she worked for Regency Place, her husband had to call an ambulance two to four times because of Maupin's blood sugar level. Id. Vol. 1:135-36.
Documents produced during discovery that the parties have submitted for the Court's consideration are referred to herein by their Bates stamp number.
Maupin agreed with her doctor that she had better than average control of her diabetes. Id. Vol. 1:33. She had "occasional" less serious episodes of low blood sugar, during which time Maupin would look into space, start getting shaky, and perspire. Id. Vol. 1:35. Maupin could experience double-vision or blurry vision. Id. Vol. 3:43-44. Sometimes her speech would become slurred during these episodes. Id. Vol. 3:18. She needed someone near her to remind her to eat and swallow. Id. Vol. 3:20. During these episodes, Maupin had trouble learning or comprehending information. Id. Vol. 3:26. During these episodes, Maupin's blood sugar level could be brought back up within five to 10 minutes with a cola or juice. Id. Vol. 1:35-36. When Maupin first began working for Regency Place she did not have any of these episodes. Id. Vol. 1:36.
Maupin began working for Regency Place as a unit coordinator in late July or early August, 1996. Id. Vol. 1:83. When Maupin interviewed for the position at Regency Place, she told Carolyn Williams, Staff Development Coordinator, she had diabetes. Maupin Dep. Vol. 1:81; Affidavit of Carolyn Williams ("Williams Aff.") ¶ 2. Maupin informed Williams that she had occasional episodes of low blood sugar, and that she was not able to work night shifts because of her diabetes. Maupin Dep. Vol. 1:81-82. Williams did not refuse to hire Maupin, and agreed to allow Maupin to work day shifts only. Id. Vol. 1:82. Williams did not express any concern about Maupin's diabetic condition, or any of the information Maupin had given Williams about her diabetes. Id. Vol. 1:83.
During the time she worked for Regency Place, Maupin was on a 1200 calorie diet recommended by the American Diabetes Association. Id. Vol. 3:14. She was to eat at least three meals a day, going no more than four hours at a time without eating. Id. Vol. 3:15. Maupin was restricted from eating sugary foods. Id. Vol. 3:14. Maupin gave herself insulin injections three to four times a day. Id. Vol. 3:12. Regency Place permitted Maupin to keep food at her side and take frequent breaks to test her blood sugar level and give herself insulin injections. Maupin Aff. ¶ 32.
Maupin understood her job responsibilities at Regency Place to include: oversee the Cambridge Unit, oversee patient care, evaluate patients' health, supervise nurses and evaluate staff, arrange for relief coverage for absent staff, constantly review the facility for safety and cleanliness, and complete paperwork. Id. Vol. 1:83, 111-12. Maupin was responsible for ensuring that appropriate nursing care was provided for the residents of Regency Place 24 hours a day, seven days a week. Id. Vol. 1:111. Regency Place has testified that the unit coordinator is an integral management position, and thus "exemplary attendance is an essential function of the job." Affidavit of Robert Haines ("Haines Aff.") ¶ 5. At Maupin's orientation, Williams informed her that violations of the attendance policy could result in termination. Williams Aff. ¶ 4; VE0051.
Maupin was diagnosed with hypothyroidism in November, 1996. Maupin Dep. Vol. 1:12. Her thyroid condition caused Maupin to experience more frequent "less serious" episodes of low blood sugar level. Id. Vol. 1:38. Beginning in October, 1996, Maupin began having these less serious episodes anywhere from one to three times a week, although not always while she was at work. Id. Vol. 1:36. Maupin began requiring more frequent insulin injections. Id. Vol. 3:13. With medication, Maupin now is able to function normally with her hypothyroidism, and it has not affected her ability to work as a registered nurse. Id. Vol. 1:13, 46-47. Maupin's doctor believed her diabetes and hypothyroidism would not impair her performance as a registered nurse. Id. Vol. 1:47; RM0038-39.
Maupin did not come to work on October 31, November 6, 7, and 8, 1996. Maupin Dep. Vol. 1:133-35; VE002-04. Maupin's doctor authorized her to return to work on November 9, 1996. VE0006. On November 13, 1996, Maupin left work two to four hours early because her blood sugar had dropped. Maupin Dep. Vol. 1:61, 66; VE0074. Maupin did not realize she had left work early until Debbie Metzger, Director of Nursing, called Maupin at home and asked why she had left early. Id. Vol. 1:61-62. Maupin was given a written Notice of Disciplinary Action for this incident. Id. Vol. 1:62; VE0074. This was the only notice of disciplinary action issued to Maupin while she was employed at Regency Place. Id. Vol. 1:64.
On December 2, 1996, Maupin told a supervisor, Phyllis Hustedt ("Hustedt"), that she wasn't feeling well. Id. Vol. 1:37. Hustedt was Assistant Administrator of Clinical Operations and also has diabetes. Affidavit of Phyllis Hustedt ("Hustedt Aff.") ¶¶ 2,5. Maupin's blood sugar level was "just a touch low." Maupin Dep. Vol. 1:37. Someone brought Maupin juice, but she was feeling lightheaded, so Hustedt called an ambulance. Id. The hospital released Maupin to return home that day. Id. Vol. 1:38. That night Maupin had another episode of seriously low blood sugar, which caused her not to wake up in the morning. Id. Vol. 1:40. Maupin did not go back to work that week. Id.
Maupin returned to work on December 9, 1996. Maupin Dep. Vol. 1:141; VE0008. Maupin informed Hustedt that Maupin's doctors thought she would be tired, and that although it might take some time for her blood sugars to return to normal, she should not have more extreme fluctuations. Id. Maupin testified that Hustedt asked whether she needed a leave of absence, but Maupin did not think she needed one or that her doctor would authorize it. Id. Vol. 1:142. On December 10, 1996, Hustedt and Becky Nash, the new Director of Nursing at Regency Place, asked Maupin whether she should take a six-week leave of absence, but Maupin reiterated that her doctor did not see a need for it. Id. Vol. 1:145-46. Maupin also could not afford to take a leave of absence without pay, and she had not been employed with Regency Place long enough to receive a paid leave of absence. Id. Vol. 1:146. Maupin testified that Hustedt and Nash were worried about Maupin's attendance and did not think she could miss more work. Id. Vol. 2:185. Maupin testified Hustedt and Nash told her they did not think she was performing her duties. Id. Vol. 1:146. Maupin told Hustedt and Nash that she could continue to perform her job responsibilities and that it would take a little time to recover from the fatigue she was experiencing. Id. Vol. 1:146. Maupin informed Hustedt and Nash that her doctors thought it might take from four to six weeks to overcome her fatigue. Id. Vol. 2:185. Maupin testified that Hustedt and Nash discussed with her that her diabetes had been fluctuating, and Maupin told them that while she would continue to have some lows, her blood sugar levels would no longer be a significant problem. Id. Vol. 1:148.
Maupin testified that Hustedt and Nash wanted her to take some time off for her health, but that they would not allow her to come back to work without reapplying. Id. Vol. 1:147. Maupin testified that Hustedt and Nash asked whether she would consider a part-time position so that Maupin could rest. Id. Maupin testified that Hustedt and Nash said they would keep her resume and job application on hand and call her if another job came up that they felt Maupin could handle. Id. Maupin remembers being told that she was relieved of her position, and that Nash walked her to the door. Id. Vol. 1:148. Maupin recalls that she asked Hustedt and Nash whether they were letting her go because of her health and they nodded "yes." Id. Vol. 1:152.
After Regency Place terminated Maupin as unit coordinator, she waited for someone from Regency Place to call her about becoming re-employed there, but no one contacted her. Id. Vol. 1:104. Maupin returned to Regency Place about one week following her termination and spoke with the MDS director about an available part-time position. Id. Vol. 1:104-05. The MDS director had not heard that Maupin was interested in a position. Id. Vol. 1:105. Maupin did not speak with Williams or Hustedt after her employment with Regency Place ended. Id.
Nash asserts that neither Maupin's diabetes or hypothyroidism played a role in Nash's decisions about Maupin's employment. Affidavit of Becky Nash ("Nash Aff.") ¶ 5. Nash did not regard Maupin as disabled. Id. ¶ 4. According to Regency Place's records, Maupin had the worst attendance of any registered nurse unit coordinator in 1996. Affidavit of Deborah Renfro ("Renfro Aff.") ¶ 7. Nash stated on Maupin's payroll termination notice that her termination was a "health release." Deposition of Becky Nash ("Nash Dep.") at 57; VE0009.
Since January, 1997, Maupin has been on an insulin pump, which essentially provides insulin at regular intervals, 24 hours a day. Maupin Dep. Vol. 3:33; RM0004. Also in January, 1997, Maupin's symptoms of hypothyroidism had resolved and Maupin's doctor believed that her medical condition would not impair her work performance as a registered nurse. RM0038. Maupin testified that her diabetes has not prevented her from performing any job since leaving Regency Place. Id. Vol. 3:41.
Maupin is able to dance, swim, ride a bike, cook, and take walks with her children. Id. Vol. 3:16-17, 21. Maupin also is able to clean her apartment, wash her dishes, vacuum, shop for groceries and use the internet. Id. Vol. 3:46-47. As a result of the diabetes, Maupin's feet are insensitive to hot and cold. Id. Vol. 3:35. Maupin does not have retinopathy, but has "one spot" on her eye. Id.; RM0009. Maupin alleges her diabetes affected her fertility, requiring her to take medication for three months before she became pregnant with her first child. Maupin Dep. Vol. 3:37. Maupin's diabetes has never caused her to be hospitalized and she does not have any driving restrictions. Id. Vol. 3:40.
II. STANDARD
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., Inc., 975 F.2d at 1294.
III. DISCUSSION
The Plaintiff brings this action on behalf of Maupin for alleged violation of the ADA, which prohibits an employer from discrimination against a qualified individual with a disability on the basis of that disability. 42 U.S.C. § 12112(a). For the Plaintiff to survive summary judgment, he must demonstrate that Maupin (1) is disabled within the meaning of the ADA, (2) is qualified to perform the essential functions of her job either with or without reasonable accommodation, and (3) suffered from an adverse employment decision because of her disability. See Bekker v. Humana Health Plan, Inc. 229 F.3d 662, 669-70 (7th Cir. 2000).
A. DISABILITY
A person is disabled for purposes of the ADA if she (1) suffers from a physical or mental impairment that substantially limits one or more of her major life activities; (2) has "a record of such an impairment," or (3) is "regarded as having such an impairment." Bekker, 299 F.3d at 670 (quoting 42 U.S.C. § 12102(2)). The Plaintiff has alleged Maupin is disabled, or was regarded by Regency Place as disabled.
Merely having an impairment does not establish that a person is disabled — the impairment must substantially limit a major life activity. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002); Lawson v. CSX Transp., Inc., 245 F.3d 916, 923-24 (7th Cir. 2001). "Major life activities" have been defined to include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). A person's disability "substantially limits" her major life activities if she is unable to perform the function or is "significantly restricted as to the condition, manner or duration" with which she can perform the function. 29 C.F.R. § 1630.2(j). A plaintiff must be actually, presently substantially limited, not merely potentially or hypothetically substantially limited. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999). It is not enough that a impairment "might," "could" or "would" be substantially limiting in the absence of mitigating measures, if the disabled individual takes mitigating measures. See id. The Supreme Court has used the following example: Without taking mitigating measures into account, all diabetics would be disabled because if they fail to monitor their blood sugar and administer insulin, "they would almost certainly be substantially limited in one or more major life activities. . . . This is contrary to both the letter and the spirit of the ADA." Id. Thus, diabetes is not a disability in every case. The determination of whether a person has a disability must be made on a case-by-case basis. Toyota Motor Mfg., 534 U.S. at 198.
An impairment also does not substantially limit a person's performance of life functions if the impairment interferes only in a minor way. Toyota Motor Mfg., 534 U.S. at 197. "Substantially limited" means "considerably", or "to a large degree." Id. at 196. The impairment must one that "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment impact must also be permanent or long term." Id. at 197.
The Plaintiff alleges that Maupin is substantially limited in the major life activity of seeing. Maupin testified that when she experiences fluctuations in her blood sugar level she could experience double-vision or blurry vision. Maupin Dep. Vol. 3:43-44. The Plaintiff alleges that Maupin is substantially limited in the major life activity of speaking. Maupin testified that when she experiences fluctuations in her blood sugar level her speech becomes slurred. Id. Vol. 3:18. The Plaintiff alleges Maupin is substantially limited in her ability to learn. Maupin testified that when she experiences fluctuations in her blood sugar level she has trouble learning or comprehending information. Id. Vol. 3:26. However, Maupin also testified that usually when she experiences episodes of low blood sugar, her blood sugar level could be brought up within five to 10 minutes with a cola or juice. Id. Vol. 1:35-36. While these symptoms certainly impaired Maupin's ability to perform certain major life activities, the episodes were rare and when they occurred they lasted a very short time. These impairments were not substantial. By her own admission, Maupin was able to function normally, and her diabetes and hypothyroidism did not affect her ability to work as a registered nurse. Id. Vol. 1:13, 46-47.
However, the Court must give pause to the Plaintiff's allegation that Maupin was substantially limited in the major life activity of eating. The Seventh Circuit found in Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001), that Lawson had presented sufficient evidence to survive summary judgment where he had to administer blood tests multiple times each day, had to adjust his food intake and level of exertion to account for blood sugar fluctuations, and when his blood sugar dropped he had to "stop all other activities and find the kinds of food that will bring his levels back to normal." Lawson v. CSX Transp., Inc., 245 F.3d at 924. Otherwise, Lawson would experience dizziness, weakness, loss of concentration and deterioration of bodily functions. Id.
It appears that Maupin's symptoms were quite similar to those of the plaintiff in Lawson. The Plaintiff alleges that Maupin is substantially limited in the major life activity of eating. Maupin testified that while working for Regency Place, she need to eat something at least every four hours. Maupin Dep. Vol. 3:15. Maupin was restricted from eating sugary foods. Id. Vol. 3:14. When she is experiencing an episode of low blood sugar, Maupin brings her levels back to normal with a cola or juice. Id. Vol. 1:35-36. She would need someone to remind her to eat and swallow during these episodes. Id. Vol. 3:20. Also like Lawson, Maupin was diagnosed with diabetes at a young age, and thus the duration of the impairment is significant.
Yet, the Seventh Circuit makes clear that it was the severity of Lawson's condition that supported a finding that he was disability. Lawson, 245 F.3d at 924-25. Lawson's case is at one end of a sliding scale that recognizes "whether a person is disabled under the ADA is an individualized inquiry based on the particular circumstances of each case." Id. at 926. Lawson's diabetes had affected "many of the organ systems in his body," causing him trouble with his "metabolic, vascular, urinary, and reproductive systems as well as his joints and eyes." Id. at 923. Lawson suffered from retinopathy, impotence, limited joint mobility, swelling and pain in his joints, and proteinuria, a condition that ultimately would lead to renal failure. Id. at 919. Lawson also presented evidence that his "ability to regulate his blood sugar and metabolize food is difficult [and] erratic." Id. at 924. Lawson experienced "wildly fluctuating glucose levels." Id. at 918. Lawson had "great difficulty" throughout his life regulating his blood sugar levels and had been hospitalized quite a bit. Id. Lawson's doctor testified that Lawson's medical condition would "continue to deteriorate over time as a direct consequence of his diabetes." Id. at 926. Lawson's doctor predicted that Lawson's inability to regulate his blood sugar would always keep Lawson's life at risk, regardless of the vigilance with which Lawson monitored his condition. Id. at 919. Lawson was unable to hold jobs and received Social Security Disability Insurance for nearly twelve years. Id. at 920.
In contrast, there is no evidence in the record that Maupin's strict adherence to a demanding eating regimen would cause "dire consequences." See Lawson, 245 F.3d at 924. In fact, Maupin does not know what caused her to experience the one episode of seriously low blood sugar that caused her husband to call an ambulance. Id. Vol. 1:10. Maupin continuously has held jobs in the health care field. Id. Vol. 1:74-75. Maupin has not presented any evidence that her diabetes has caused other severe medical problems, but she alleges her diabetes required her to take medication for three months before she became pregnant with her first child. Id. Vol. 3:37. Maupin does not have retinopathy. Id. Vol. 3:35. Except perhaps for the short time her hypothyroidism caused a flare-up of her diabetes, Maupin has been able to control her diabetes and function normally as a registered nurse. Id. Vol. 1:11. Maupin's doctors believed Maupin had "better than average control" of her diabetes. RM0009.
Maupin is able to dance, swim, ride a bike, cook, and take walks with her children. Id. Vol. 3:16-17, 21. Maupin also is able to clean her apartment, wash her dishes, vacuum, shop for groceries and use the internet. Id. Vol. 3:46-47. Maupin's diabetes has never caused her to be hospitalized and she does not have any driving restrictions. Id. Vol. 3:40. Since her termination from Regency Place, Maupin's diabetes has not prevented her form performing any job. Id. Vol. 3:41.
To the extent Maupin must eat on a regular basis, she may have some impairment on the major life activity of eating. However, that impairment is not substantial, as is evidenced by the great degree of control Maupin has over her blood sugar levels, her relative good health, and her ability to maintain a normal, active and consistent professional and personal life. The Plaintiff has not presented evidence with which a jury reasonably could find Maupin disabled.
B. REGARDED AS DISABLED
Neither can the Plaintiff establish that Regency Place regarded Maupin as disabled. A person is regarded as disabled if the employer believes that the employee "has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton, 527 U.S. at 489. The Plaintiff has the burden of selecting which of Maupin's major life activities he will attempt to prove Regency Place regarded as substantially limited by her diabetes. See Amadio, 238 F.3d at 924.
The Plaintiff has not identified what major life activity Regency Place may have regarded as substantially limited. Further, there is no evidence in the record that Regency Place regarded Maupin as having an impairment that substantially limited any of her life activities. Maupin told Regency Place before she was hired that she had diabetes. Maupin Dep. Vol. 1:81; Williams Aff. ¶ 2. Maupin informed Carolyn Williams during her interview that she had occasional episodes of low blood sugar, and that she was not able to work night shifts because of her diabetes. Maupin Dep. Vol. 1:81-82. Williams did not refuse to hire Maupin, and agreed to allow Maupin to work day shifts only. Id. Vol. 1:82. Williams did not express any concern about Maupin's diabetic condition, or any of the information Maupin had given Williams about her diabetes. Id. Vol. 1:83. Regency Place permitted Maupin to keep food at her side and take frequent breaks to test her blood sugar level and give herself insulin injections. Maupin Aff. ¶ 32.
Yet, it was not until Maupin began frequently missing work that Regency Place expressed a concern about Maupin's ability to perform her job. Maupin has testified that Hustedt and Nash were concerned about Maupin's attendance. Maupin Dep. Vol. 2:185. Maupin testified that Hustedt and Nash told her she had not been performing her job duties. Id. Vol. 1:146. Hustedt and Nash discussed with Maupin the idea of a part-time job and told Maupin they might be able to rehire her in the future. Id. Vol. 1:147. While it is evident that Hustedt and Nash were concerned about Maupin's health, the evidence also shows that they did not believe Maupin's health substantially limited any of her major life activities. See Mack v. Great Dane Trailers, 308 F.3d 776, 782 (7th Cir. 2002) (holding that employee's "regarded as disabled" claim failed as a matter of law where evidence showed employer may have found employee limited in performing some job-related task, but not substantially limited in a major life activity); Duff v. Lobdell-Emery Mfg., Co., 926 F. Supp. 799, 806-07 (N.D. Ind. 1996) (finding that although employer knew employee suffered from a heart ailment and thus could not work over 40 hours per week, no evidence suggested employer thought employee to be substantially limited in a major life activity). The evidence in this case shows only that Regency Place was concerned that Maupin's recent record of irregular work attendance was preventing Maupin from performing her job.
IV. CONCLUSION
Because the Plaintiff cannot demonstrate that Maupin was disabled or that Regency Place regarded Maupin as disabled, his ADA claim must be dismissed. Regency Place's motion for summary judgment is GRANTED.