Opinion
IP 01-0889-C T/G.
September 30, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 39)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff, Vernell Holley, an African American woman who is legally blind, sued the Defendants alleging that she was discriminated against on the basis of her disability, race and gender, denied a reasonable accommodation for her disability, and retaliated against for seeking accommodations for her disability. Her claims are brought under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, Title VII of the Civil Rights Act of 1964 ("Title VII"), and 42 U.S.C. §§ 1981 and 1983. The Defendants seek summary judgment on all claims.
The following facts are taken from the parties' evidentiary submissions. Where facts are disputed they are viewed in the light most favorable to the Plaintiff. The discussion is lengthy and exhaustive, but this is necessary to provide a complete picture of the record and background for the Plaintiff's many claims. Additional facts may be included in the discussion section where warranted.
Vernell G. Holley was employed by the Indianapolis Public Schools ("IPS"), primarily as a special education teacher, from 1972 to June 2000, when she submitted a letter stating that she retired. James Whisler was the principal of the school where Ms. Holley worked, IPS #28, during the 1997-98 and 1998-99 school years. At the beginning of the 1997-1998 school year, Ms. Holley told her supervisor Mr. Whisler that she could not see very well and she could not do some things because of her poor eyesight. (Holley Dep. at 225, 229.) In October 1997, she informed him that she was having problems with her eyes and took a leave of absence for an operation on her eyes. (Holley Aff. ¶ 5.) In the beginning of December 1997, she told him that she was having vision problems and was blind. ( Id.) Ms. Holley returned from her leave of absence on December 16. ( Id.)
He very well may have been the principal of IPS #28 before the 1997-98 school year, but the record does not address this point.
When asked what accommodations she requested from Mr. Whisler during the 1997-98 school year, Ms. Holley testified that she asked for whatever accommodations he could provide. ( Id. at 225.) She conceded that she did not ask for any specific accommodation, explaining that she was recently blind and did not know what accommodation to request. ( Id. at 226, 230.) Ms. Holley felt that Mr. Whisler ignored her requests for accommodation. ( Id. at 124, 147.) However, according to Mr. Whisler, he talked to Ms. Holley about what she might need, but was unable to assess what accommodations, if any, were needed. (Whisler Aff. ¶ 11.) He also stated: "beginning in the 1997-98 school year, my staff and I helped Ms. Holley with any problem she identified. Every time Ms. Holley stated she needed something, usually in the area of reading and paperwork, we provided that help." ( Id.) Ms. Holley's own testimony confirms that during the 1997-98 school year, her co-workers assisted her by reading documents for her and another teacher, Mike Campbell, wrote all her student Individualized Education Plans ("IEPs") in that year. (Holley Dep. at 65-66, 237, 549.)
Mr. Whisler stated in his affidavit that during the time he was Ms. Holley's principal, she "repeatedly failed to complete required paperwork." (Whisler Aff. ¶ 4.) According to Mr. Whisler, in the spring of 1999, Ms. Holley "fell further and further behind in submitting statutorily-required reports and paperwork" ( Id. ¶ 14.)
Mr. Whisler indicated that Ms. Holley "failed to perform her job in an adequate manner in areas unrelated to paperwork." ( Id. ¶ 5.) He alleges that he "repeatedly and regularly received reports and complaints from other staff members that she failed to supervise and manage the students in her classroom." ( Id.) For example, Patricia Gholston, a teacher whose classroom was in the same room as Ms. Holley's classroom, reported to him on September 18, 1998, that one of Ms. Holley's students was screaming: "`big-eyed, fish lip ass, bitch!'" at the top of his lungs several times and told her "`I don't like niggers anyway.'" (Whisler Aff., ¶ 5 Ex. A.) Ms. Gholston indicated that she did not hear Ms. Holley reprimand the student, did not see her write him a warning or stop him in any way. ( Id.) She also reported that the "students wrestled, ran around, beat on any and/or every object in classroom . . . [and] yelled profanities. . . ." ( Id.) Ms. Gholston reported that this type of behavior had occurred before, without any attempt by Ms. Holley to reprimand the students. According to Mr. Whisler, Ms. Holley's problems with classroom management and student supervision had become serious before she advised him of her vision problem. ( Id.) He described her classroom management as "a major concern because of student safety issues and the overall learning environment." ( Id.)
Ms. Gholston and Ms. Holley were assigned to self-contained classrooms, but due to space needs, their classrooms were located in one large room, divided into two classrooms. ( Id.)
Mr. Whisler stated that as a result of Ms. Holley's alleged failure to control student misbehavior in class, in the fall of 1998, he decided to move Ms. Holley from a self-contained classroom to allow an additional teacher to be present and share responsibility for her students. (Whisler Aff. ¶ 6.) According to Mr. Whisler, Ms. Holley's performance problems continued after she was moved to the inclusion classroom and the regular education teacher assigned to the classroom complained to him that Ms. Holley did not carry her share of teaching duties. ( Id. ¶ 7.) Ms. Holley was unhappy with the assignment as well and wanted to be returned to a self-contained classroom. ( Id.) Later, when arrangements had been made to obtain an assistant for Ms. Holley, she was returned to a self-contained classroom. ( Id.) Mr. Whisler said that in the spring of 1999, Ms. Holley failed to exercise the needed discipline in her classroom and her classroom management was again a "major concern because of student safety issues and the overall learning environment." (Whisler Aff. ¶ 14.) He stated that when he discussed with Ms. Holley the problems she was having with completing paperwork and managing students, she did not attribute the problems to her visual disability. ( Id. ¶ 9.)
Special education teachers assigned to a self-contained classroom work with students who are not integrated into regular education classrooms. The special education teachers assigned to a self-contained classroom typically stay in one classroom all day. Inclusion teachers work with special education students who are assigned to regular classrooms. The primary task of a special education teacher in an inclusion classroom is to work with and assist the special education students assigned to the classroom. An inclusion classroom is staffed with both a special education and a regular education teacher, whereas, a self-contained special education classroom has one teacher. ( Id. ¶ 8.)
Contrasted with Mr. Whisler's affidavit statements regarding Ms. Holley's performance is the IPS evaluation of Ms. Holley's teaching performance for the 1998-1999 school year. (Pl.'s Ex. F.) The evaluation allows for ratings in a number of different areas relevant to teaching responsibilities, including "Classroom Management," "Interpersonal Relationships," and "Staff and Professional Obligations," which includes an area for "Submits accurate records as required by law, board policy, and administrative guidelines." ( Id.) The possible ratings are "Exceeds Performance Expectations," "Demonstrates Professional Competence," "Performs Unsatisfactorily" and "Not Applicable." Ms. Holley was rated "Demonstrates Professional Competence" in all areas, but one: "Is punctual" — where she was rated unsatisfactory because of ninety tardies. In the area for "Recommendation," a check is placed on the line before "Renewal of Contract." Other options were: "Renewal of Contract with Performance Improvement Plan," "Nonrenewal of Contract," and "Renewal of Contract: Reassignment to another area of certification." ( Id.) Ms. Holley appears to have signed and dated the evaluation on June 15, 1999. A signature is contained on the line provided for the evaluator's signature. A comparison of this signature and that on Mr. Whisler's affidavit suggests that both documents were signed by the same person.
The "Classroom Management" section is divided into (1) a subsection entitled, "Promotes Productive Student Behavior," which includes "Assumes responsibility for overall discipline," "Maintains class control that is conducive to learning" and "Encourages students to be self-disciplined," and (2) a subsection entitled, "Creates and Maintains an Appropriate Learning Environment," which includes "Maintains a room that is appropriate to the learning activity that is taking place." ( Id.)
No attempt is made to explain the inconsistency between Mr. Whisler's statements and the Defendants' position that Ms. Holley had serious and major problems in terms of supervising and managing students — problems which purportedly continued throughout the 1998-99 school year — on the one hand and the 1998-99 performance evaluation on the other. Nor is any effort made to explain the discrepancy between Mr. Whisler's statements regarding Ms. Holley's failure to complete paperwork, her falling "further and further behind" in reports and paperwork in the spring of 1999, and the evaluation's satisfactory rating in the area of submitting accurate records.
In August 1998, Ms. Holley submitted to Mr. Whisler a letter from her eye doctor regarding her vision impairment. (Whisler Aff. ¶ 9; Defs.' Ex. D.) The letter stated that Ms. Holley was legally blind, indicated that "she is able to work with proper accommodations," asked for "every consideration" for her, and instructed that the doctor be contacted if further information regarding her disability was required. (Defs.' Ex. D.) The letter did not identify any specific accommodations needed. After receiving the letter, Mr. Whisler asked Ms. Holley what she needed from IPS as an accommodation. (Whisler Aff. ¶ 10.) She responded that she was having difficulty reading documents and needed help with her reports. ( Id. ¶ 10.) At the time, staff was assisting Ms. Holley with her reports and with reading documents. ( Id.; Holley Dep. at 65-66, 237, 549.) Ms. Holley stated that she could perform all of the tasks of a teacher. (Whisler Aff. ¶ 11.)
On December 16, 1998, IPS held a meeting with Ms. Holley; Jane Ajabu, the IPS Elementary/Special Education Human Resources Supervisor; Charlie Kent, the Assistant Superintendent; Pat Kiergan, IPS district nurse; Ruth Miller, Special Education Supervisor; Erin Farrell, an IPS human resources supervisor; and Mr. Whisler, regarding Ms. Holley's disability and accommodations. (Ajabu Aff. ¶ 4; Holley Dep. at 121; Whisler Aff. ¶ 12.) Ms. Holley states that she initiated the meeting since Mr. Whisler was not providing her with any accommodations. She had requested a meeting in September, but it was delayed three times and not held until December. Mr. Whisler states in his affidavit that as a result of the meeting, IPS provided Ms. Holley with a fulltime assistant to read and write for her and assist her with other tasks that she could not perform because of her visual impairment, provided her with documents in large print and modified her classroom to allow as much natural light in as possible. (Whisler Aff. ¶¶ 12, 13.) Neither Mr. Whisler nor Jane Ajabu, who also states in her affidavit that these accommodations were provided as a result of the December 1998 meeting, indicates when these accommodations were provided. According to Ms. Holley, Mr. Whisler did not do anything to implement the recommended accommodations, so she had to contact Mr. Kent in January and again in February of 1999. (Holley Dep. at 238-39.) However, Ms. Holley was still getting assistance from staff with reading and writing reports. (Whisler Aff. ¶¶ 10, 12.)
Amy Johnson was hired to be Ms. Holley's assistant and began in March 1999. ( Id. at 349, 350, 355; Ferrell Aff. ¶ 4.) Ms. Johnson reported to Mr. Whisler that Ms. Holley expected her to perform instructional duties and write the reports herself rather than write what Ms. Holley dictated. (Whisler Aff. ¶ 14.) At the same time, Ms. Holley told Mr. Whisler that she still had some vision and was able to read with a magnifying device. ( Id. ¶ 15.) Mr. Whisler encouraged Ms. Holley to use rehabilitation services and offered her time off to attend appointments without loss of pay. ( Id.)
Mr. Whisler left IPS #28 in July 1999 and has had no contact with Ms. Holley since then. ( Id. ¶ 16.) Mr. Whisler was replaced by Stephanie Crutchfield who became the principal at IPS #28 in July 1999 and was principal for the 1999-2000 school year.
In July 1999, before the school year began, Ms. Holley informed Ms. Crutchfield of her visual disability and of her resulting need for a classroom with a lot of natural light. (Holley Dep. at 46.) At that time, according to Ms. Crutchfield, she advised Ms. Holley that though classroom assignments were not yet finalized, it appeared as if Ms. Holley would be an inclusion teacher. (Crutchfield Dep. 1 at 41, 46.) Carol Kitterman, the special education compliance monitor who recommends teaching assignments for special education teachers, had recommended an inclusion assignment for Ms. Holley. (Kitterman Aff. ¶ 7.) Ms. Kitterman states that her recommendation was based on Ms. Holley's increasing problems with classroom management and her belief that it was important for Ms. Holley to work in a classroom with another certified teacher. ( Id.) Ms. Crutchfield accepted Ms. Kitterman's recommendation. Ms. Holley alleges that she was not informed she would no longer be in a self-contained classroom until shortly before the school year began, she tried to move into her former classroom which was occupied by another teacher. She testified that when she called Ms. Crutchfield at home to inquire about the her room assignment, Ms. Crutchfield snapped at her and told her she could leave the building if she did not like it. (Holley Dep. at 428.)
In contrast, in her affidavit, Ms. Crutchfield states that she did not learn of Ms. Holley's visual disability until after the school year began and was unaware of it when she finalized her assignment to an inclusion classroom in the summer of 1999. The affidavit is undated; the deposition was given on March 27, 2003. The court will accept as true the deposition testimony as it seems more favorable to the Plaintiff.
Ms. Crutchfield met with Ms. Holley on September 16 and 20 and October 1, 1999, to discuss accommodations for her and concerns about her performance. (Crutchfield Aff. ¶ 5.) (The accommodations in place at the time included Ms. Holley's personal assistant and an agreement to keep the shades in her classroom open to allow as much natural light in as possible. ( Id.)) It had been reported to Ms. Crutchfield on three separate occasions at the beginning of the school year that Ms. Holley had been asked to cover a mildly mentally handicapped class and that on each occasion, the students were so disruptive and Ms. Holley lacked control over them that administrators were repeatedly asked to report to the classroom. It was also reported that on one such occasion, two students were physically battered by another student. (Crutchfield Aff. ¶ 6.) Ms. Holley told Ms. Crutchfield that she was capable of performing her duties as an inclusion teacher with the modifications that already had been provided her. ( Id. ¶ 7.)
Ms. Crutchfield does not indicate who reported these incidents to her.
Ms. Crutchfield received reports that Ms. Holley had a poor working relationship with her assistant, Ms. Johnson, and the regular education teacher in her classroom, Ms. Carey. (Crutchfield Aff. ¶ 9.) Beginning in September 1999, Ms. Johnson complained to Ms. Crutchfield that Ms. Holley had instructed her to develop and write student IEPs. (Crutchfield Aff. ¶ 10.) Ms. Crutchfield met with Ms. Holley to discuss Ms. Johnson's complaints. ( Id.) Ms. Crutchfield was concerned that required compliance data for Ms. Holley's students was being prepared by the assistant rather than Ms. Holley herself. ( Id.) Ms. Johnson was very unhappy in her position and expressed a strong desire to discontinue her work with Ms. Holley. ( Id. ¶ 11.) Ms. Carey indicated that Ms. Holley did not collaborate with her on IEPs for the special education students in their classroom, failed to show up to their assigned teaching location, rarely interacted with her students, had not provided supplemental materials or lesson plans for the special needs students, and was not keeping her students on task. (Crutchfield Aff. ¶ 9; Holley Dep. at 202-03.)
Parents complained to Ms. Crutchfield that Ms. Holley was not implementing modifications for special education students in accordance with the IEPs. (Crutchfield Aff. ¶¶ 14, 19.) When Ms. Crutchfield asked Ms. Holley for specific information relating to her students, she was unable to provide even minimal information about the content of student IEPs or familiarity with their individual needs. ( Id. ¶ 14.)
Because of Ms. Johnson's complaints, on October 8, 1999, she was replaced by Ann Boynton who was Ms. Holley's assistant for the remainder of the school year. (Crutchfield Aff. ¶ 11.) Ms. Carey reported to Ms. Crutchfield that Ms. Holley was unable to work well with Ms. Boynton. ( Id. ¶ 12.) Ms. Boynton also made complaints about Ms. Holley which were similar to those expressed by Ms. Johnson, for example, that Ms. Holley instructed Ms. Boynton to do Ms. Holley's work rather than tasks related to her visual disability, it appeared Ms. Holley did not know how to write a lesson plan, and she failed to respond to student misbehavior. ( Id. ¶¶ 12, 13.)
Meanwhile, IPS held additional meetings to address Ms. Holley's disability and accommodation needs on October 7, 1999, November 10, 1999, December 14, 1999, and January 26, 2000 ("section 504 meetings"). (Holley Dep. at 124, 232, 349, 355, 357, 579; Ajabu Aff. ¶ 6.) As a result of the October, November and December meetings the following additional accommodations were made for Ms. Holley: she was relieved of cafeteria duty to allow additional preparation time for her and her assistant (Crutchfield Aff. ¶ 8; Ajabu Aff. ¶ 6); her classroom was to be provided with natural lighting (Ajabu Aff. ¶ 6); she was provided a specific room and time to meet with her assistant each morning (Crutchfield Aff. ¶ 8; Ajabu Aff. ¶ 7); she was provided a chart with case conference deadlines for her students (Crutchfield Aff. ¶ 8; Ajabu Aff. ¶ 6); and her teaching assignment was structured so she would teach in only two classrooms located in the same hallway, only three rooms apart, thus minimizing her need to travel throughout the school day. (Crutchfield Aff. ¶ 8; Ajabu Aff. ¶ 6.) As a result of the January meeting, Ms. Holley was to meet with vocational rehabilitation services to obtain accommodation ideas. (Ajabu Aff. ¶ 8.)
During these section 504 meetings, Ms. Holley said she was capable of performing her duties as an inclusion teacher with the modifications that IPS had provided. (Ajabu Aff. ¶ 9; Crutchfield Aff. 7). Also during the meetings Ms. Holley requested reassignment to a self-contained classroom. (Ajabu Aff. ¶ 7; Crutchfield Aff. ¶ 8.) The section 504 committee members expressed concern about student safety because of Ms. Holley's lack of classroom management and control, and they did not believe she was qualified to teach in a self-contained classroom. (Ajabu Aff. ¶ 7; Crutchfield Aff. ¶¶ 8, 16.) Ms. Holley also suggested that she might be transferred to the Day Adult Learning Center ("Day Adult"), but that was not viewed as appropriate because she was unfamiliar with the Day Adult building and program and because she was unable to manage student behavior. (Ajabu Aff. ¶ 11.) In addition, Vicke Nowlin, the principal of the Day Adult program, informed Ms. Ajabu, who had the authority to grant Ms. Holley's request for a transfer, that she was looking for a teacher who was certified/licensed to teach emotionally handicapped students. ( Id.) Ms. Holley was not certified/licensed to teach emotionally handicapped students and never applied for the Day Adult position. (Ajabu Aff. ¶ 11.) A teacher who was certified to teach emotionally handicapped students was hired to fill the position. Ms. Holley believes that the need for a teacher certified/licensed to teach emotionally handicapped students was not present before she expressed interest in the transfer, but she testified she does not know when the requirement was added. (Holley Dep. at 504.)
Ms. Crutchfield states that by December 1999, Ms. Holley's performance had become a major concern, and on January 3, 2000, she gave Ms. Holley a memorandum summarizing the section 504 meetings and outlining performance expectations. (Crutchfield Aff. ¶ 17.) Ms. Holley agreed that Ms. Crutchfield's expectations were reasonable. (Holley Dep. at 365.)
Nonetheless, Ms. Crutchfield continued to receive numerous reports of Ms. Holley's poor performance during the remainder of the 1999-2000 school year. (Crutchfield Aff. ¶¶ 18-21.) It was reported that Ms. Holley refused to participate as a team partner in the inclusion classroom. ( Id. ¶ 18.) Ms. Holley's assistant, Ms. Boynton, complained that she often had to do Ms. Holley's job, at least on one day Ms. Holley was "napping constantly," and she had a great deal of difficulty working with Ms. Holley. ( Id.) It also was reported by Ms. Holley's colleagues that Ms. Holley regularly complained about her situation to co-workers, she told them she was not going to do certain things that were asked of her, and that IPS could not do anything about it because of her disability. (Crutchfield Aff. ¶ 20.)
Ms. Holley complains of various incidents of harassment, mostly involving Ms. Crutchfield, during the 1999-2000 school year. She states that Ms. Crutchfield called her to her office fourteen or fifteen times to give her negative feedback and tape recorded their meetings without informing her of the recording. (Holley Dep. at 437-39, 484-85.) During one incident at her office involving Amy Johnson, Ms. Crutchfield told Ms. Holley, "You just shut up and sit there." ( Id. at 480.) Ms. Crutchfield instructed the other teachers and Ms. Holley's assistants to evaluate and document her actions on paper. (Holley Dep. at 443-44, 448.) She asked the assistants to report on Ms. Holley's behavior and performance in Ms. Holley's presence, which was demeaning to Ms. Holley. ( Id. at 445-46.) Once Ms. Crutchfield came into Ms. Holley and Ms. Carey's classroom to evaluate Ms. Holley's teaching without advising Ms. Holley she was there. ( Id. at 452-53, 458-59.) Ms. Carey was out of the room, so Ms. Holley was teaching both the special education and regular education students on her own; her assistant made no effort to assist her. ( Id. at 456.) Ms. Crutchfield criticized Ms. Holley about her performance in front of her students and then criticized her further outside the classroom for taking too long to respond to a special education student who needed help when she had been teaching at the board. ( Id. at 459-60, 462-63.) Ms. Holley testified that due to her vision it was difficult for her to see the child since he was sitting in between other students and packed in five rows. ( Id. at 463.)
Furthermore, according to Ms. Holley, she could not remove special education students from the classroom unless instructed to do so by the regular teacher, Ms. Carey, whereas, other inclusion teachers could remove their special education students at their own discretion. (Holley Dep. at 406-07, 409.) The evidence is that Ms. Crutchfield instructed all special education teachers assigned to an inclusion classroom to keep their students in the classroom to further the purpose of the inclusion classroom — to keep special education students in a classroom with regular education students. (Crutchfield Aff. ¶ 31, 37.) Ms. Holley testified that she was not in the other classrooms of the other inclusion teachers to see what they were doing. (Holley Dep. at 526.) Thus, her views of what the other inclusion teachers were allowed to do is based on what they may have told her ( id. at 526-27), which is hearsay and inadmissible, and therefore fails to raise a genuine issue of fact.
Ms. Holley further complains that during the 1999-2000 school year she did not have a teacher's desk or chair in her classroom and had no place to put her personal things. (Holley Dep. at 376-78, 473-74.) She testified that she had to carry her personal belongings such as her coat, purse and lunch with her everywhere she went during the day, because the regular teacher, Ms. Carey, did not offer her the keys to put her things in the closet. ( Id. at 473-74.) Inclusion teachers work in a classroom with a regular education teacher and share space with that teacher. (Crutchfield Aff. ¶ 29.) According to Ms. Crutchfield, all special education inclusion teachers had a desk in their respective classrooms. ( Id.) From these statements, the court understands that there was just one teacher's desk and chair in an inclusion classroom and the inclusion teacher and regular education teacher had to share them.
Ms. Crutchfield states that while she was Ms. Holley's supervisor, neither Ms. Holley nor anyone else advised her that Ms. Holley did not have a desk or chair. ( Id.) Ms. Holley does not dispute this assertion. She testified, though, that she brought to "the committee's" attention that she did not have a desk or chair. (Holley Dep. at 379-80.) The committee to which she refers presumably is the section 504 committee which first met on December 16, 1998. Ms. Holley has not pointed the court to any evidence as to when she made the committee aware that she believed she had no desk or chair. Ms. Ajabu states that at the December 1998 meeting, Ms. Holley complained about having to share space with another teacher (Ajabu Aff. ¶ 4), which is consistent with Ms. Holley's statement that she made the committee aware of not having a desk or chair. As the court understands Ms. Holley's claim, she is not alleging that she had no desk or chair in the classroom which she as an inclusion teacher shared with the regular education teacher, but rather, she is complaining about having to share the desk and chair with the other teacher. In other words, she claims she should have had her very own desk and chair. The evidence, however, is that no other inclusion teacher had their own desk and chair.
Ms. Holley also claims that she was the only special education teacher who was assigned breakfast duty. Yet, the evidence from Ms. Crutchfield is that during the 1999-2000 school year all special education inclusion teachers except Ms. Holley were assigned breakfast duty; Ms. Holley was relieved of that duty in early October as an accommodation. (Crutchfield Aff. ¶ 27.)
Another claim of Ms. Holley's is that she did not have a key to the restroom. Ms. Crutchfield speculates that Ms. Holley had been assigned to room 210 during the spring of 1999 and was assigned to a new classroom for the 1999-2000 school year and therefore "likely" gave her key to room 210 to the teacher assigned to that room. ( Id. ¶ 28.) The same key unlocks the classroom and the restroom. (Holley Dep. at 329.) Ms. Crutchfield stated that neither Ms. Holley nor anyone else advised her that Ms. Holley did not have a restroom key. (Crutchfield Aff. ¶ 28) Ms. Holley testified, however, that Ms. Crutchfield instructed the compliance teacher to ask for her key and also asked the teacher assigned to her old room for her key, and she did not receive another key. (Holley Dep. at 325-26.) There is no evidence from which one could reasonably infer that Ms. Holley ever informed Ms. Crutchfield or any of Ms. Crutchfield's superiors that she was not given a restroom key.
Ms. Holley states that she asked other people to loan her their key to unlock the restroom (Holley Dep. at 325) and asked Ms. Crutchfield's assistant to let her in the restroom, but there is nothing to suggest that the assistant or these other people advised Ms. Crutchfield that Ms. Holley did not have a key.
Ms. Holley claims to have trouble swiping her attendance card through the machine in the morning. She testified that she asked Mr. Whisler and Ms. Crutchfield if she could have an assistant swipe her card and they both told her that she could not have someone else swipe her card for her. (Holley Dep. at 532.) Ms. Crutchfield, however, states that she did not know Ms. Holley was having problem with her attendance card and Ms. Holley never asked her to allow her assistant to swipe her card for her. ( Id. ¶ 32.) The court, of course, must credit Ms. Holley's version on summary judgment.
Ms. Crutchfield conducted Ms. Holley's performance evaluation on May 31, 2000 (Crutchfield Aff. ¶ 24), while IPS policy states that the second semester evaluation is to be conducted in early March. However, Jane Ajabu had advised Ms. Crutchfield that she needed to delay the evaluation until Ms. Holley met with rehabilitation services, in case additional accommodations were recommended. (Ajabu Aff. ¶ 12.) Ms. Crutchfield states that the evaluation was based on Ms. Holley's performance, with consideration to the accommodations provided her for her visual disability. (Crutchfield Aff. ¶ 24.) The evaluation reflects that Ms. Holley's performance was unsatisfactory in some aspect of every category evaluated — instruction, communication skills, classroom management, interpersonal relationships and staff and professional obligations. ( Id. ¶ 25; Defs.' Ex. J.) The comments section of the evaluation includes statements such as "Teacher refused to take or assume responsibility for overall classroom management," "Will not work collaboratively with her peers" and "Assumes no responsibility for overall classroom discipline or management." (Defs.' Ex. J at 1-2.) It was recommended that Ms. Holley's contract be renewed with a performance improvement plan. ( Id. at 3.)
Ms. Crutchfield placed the evaluation in Ms. Holley's school mailbox, but when Ms. Holley went to retrieve it on the last day of school, it was not there. (Holley Dep. at 469.) When Ms. Holley told Ms. Crutchfield that she had not received her evaluation, Ms. Crutchfield responded that she was "trifling and lazy" and showed "no initiative." ( Id. at 468.) Ms. Holley believes based on remarks from other teachers and her assistants' reaction — they did a "high five" ( id. at 470) — that others had read her evaluation.
Ms. Holley filed her first charge of discrimination on July 25, 2000, alleging age and disability discrimination and retaliation. (Holley Aff. ¶ 14.) She filed her amended charge of discrimination on December 22, 2000, claiming race, sex, age and disability discrimination as well as retaliation. ( Id.)
II. DISCUSSION
The Defendants seek summary judgment on all of Ms. Holley's employment discrimination and retaliation claims. Summary judgment should be granted if "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The court views all evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004). That party must come forward with specific facts that show a genuine issue for trial. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).
A. Disability Claims
Ms. Holley claims that the Defendants failed to accommodate her disability, subjected her to a hostile work environment, constructively discharged her, and retaliated against her for requesting an accommodation, all in violation of the ADA and the Rehabilitation Act. The same standards apply under both the ADA and the Rehabilitation Act, Dyrek v. Garvey, 334 F.3d 590, 597 n. 3 (7th Cir. 2003), so these claims are addressed together.
The ADA provides for employer liability; a supervisor cannot be held liable in his or her individual capacity under the ADA. See Silk v. City of Chicago, 194 F.3d 788, 797 n. 5 (7th Cir. 1999). Thus, the ADA claims against Dr. Pritchett and Ms. Crutchfield in their individual capacities should be dismissed for failure to state a claim.
1. Failure to Accommodate
Discrimination under the ADA includes "not making a reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" unless the accommodation would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A); Rauen v. U.S. Tobacco Mfg. Ltd., 319 F.3d 891, 895 (7th Cir. 2003). Thus, to prevail on a failure to accommodate claim, a plaintiff must establish that she has a disability, her employer was aware of her disability, she is "otherwise qualified" for the job, and her employer failed to make a "reasonable accommodation" for her disability. See Rauen, 319 F.3d at 895-96. It is undisputed that Ms. Holley has a disability as she is legally blind, IPS was aware of her disability, and she was otherwise qualified for teaching position. Accordingly, the issue is whether IPS failed to make a "reasonable accommodation" for her visual disability.
The determination of whether an accommodation is reasonable "is a highly fact-specific inquiry and requires balancing the needs of the parties." Rauen, 319 F.3d at 896 (quotation omitted). An employer need not provide an accommodation that is ideal from the employee's perspective, but rather, an employer need provide only an accommodation which is reasonable in terms of costs and benefits. Mays v. Principi, 301 F.3d 866, 872 (7th Cir. 2002). The Defendants claim that reasonable accommodations were made for Ms. Holley's visual disability, she was not qualified for an accommodation in the form of a transfer to Day Adult, and she was not entitled to any other accommodations because the could perform the essential elements of her job.
In their reply, the Defendants argue that the failure to accommodate claims are time-barred to the extent they are based on conduct or omissions which occurred more than 300 days before the filing of the Plaintiff's first EEOC charge — before September 29, 1999. However, because the Defendants did not advance this argument until their reply and the Plaintiff did not have an opportunity to respond, it would be an inappropriate basis upon which to grant summary judgment. Even if many allegations of a failure to accommodate are time-barred, the allegations regarding the attendance card, the need for natural light in the classroom, and a teacher's desk, chair, and restroom key would not be time-barred. (Reply at 6.)
The evidence does establish that Ms. Holley was provided with some reasonable accommodations. For example, she first was given staff assistance with reading documents and with her reports, and later was given additional accommodations including a full-time assistant to assist her with the tasks she could not perform because of her visual disability. The evidence also establishes that Ms. Holley was not qualified for the Day Adult position: the principal wanted a teacher certified or licensed to teach emotionally handicapped students, and Ms. Holley had no such certification or license. The duty to reassign as an accommodation does "not require an employer to abandon its legitimate, nondiscriminatory company policies." Winfrey v. City of Chicago, 259 F.3d 610, 618 (7th Cir. 2001) (quotation omitted). Thus, Ms. Holley cannot prevail on a failure to accommodate claim based on the failure to transfer her to Day Adult. She never applied for the Day Adult position anyway.
In opposing summary judgment, Ms. Holley admits that she was able to perform the essential functions of her teaching position with the accommodations made for her, but claims that it was not without challenge and difficulty. (Pl.'s Resp. at 15-16.) Thus, she claims she was entitled to further accommodations.
She alleges that: (1) when she left for surgery in October 1997, her personal teaching materials were thrown away; (2) she did not have access to a teacher's desk or chair in her classroom; and (3) she was not given a key to use the locked faculty restroom, forcing her to use the girls' restroom and the stalls there were difficult to use as the locks had been removed. Even assuming that Ms. Holley's teaching materials were thrown away, the evidence is insufficient to raise a reasonable inference that it was done intentionally or that Mr. Whisler was responsible for it. As for the lack of access to a teacher's desk and chair and not having a key, these are not accommodations for a disability, but items which Ms. Holley claims other teachers had whereas she did not. Thus, they are more appropriately considered in connection with the hostile work environment claim and will be addressed below.
Mr. Whisler stated that some IPS property from Ms. Holley's classroom was moved to another area of the building, based on building needs, but none of her personal belongings were moved and she continued to have access to IPS property. (Whisler Aff. ¶ 19.)
Nonetheless, Ms. Holley's evidence raises a genuine issue of material fact as to whether she was provided reasonable accommodations. First, Ms. Holley claims that she was not provided with a "qualified" assistant. She specifically complains that her assistant was not trained in how to aid a disabled teacher; could not read certain documents; could not write successful lesson plans for her; would not get out of her seat to read problems when Ms. Holley was working with individual students; refused to write what Ms. Holley dictated on the overhead projector for her; and did not help her lead the children outside the building during fire drills, but stayed with the regular education teacher. ( See Holley Dep. at 345, 385, 487.) Even though the assistants did not have to be ideal from Ms. Holley's perspective, see Mays v. Principi, 301 F.3d 866, 872 (7th Cir. 2002), there is a disputed issue of material fact as to whether the assistants were providing accommodation to her visual disability. The Defendants cite no authority for the proposition that it is sufficient to put an accommodation in place without regard to the effectiveness of that accommodation, as they seem to suggest. If the assistants were not helping Ms. Holley with the tasks she could not perform because of her visual disability, they could be viewed as not a reasonable accommodation or no accommodation at all.
Ms. Holley clarified, however, that the assistant could write every word she dictated to her and what she meant was the process of dictating to the assistant was very slow. (Holley Dep. at 360.)
Ms. Holley also alleges a failure to accommodate her visual disability with respect to using her attendance card. She testified that she had a hard time getting her attendance card to swipe through the machine, and as a result, was marked absent when she was not. She states that when she asked both Mr. Whisler and Ms. Crutchfield if she could have an assistant swipe her card, they told her that she could not have someone else swipe her card for her. In the reply brief, the Defendants claim that it would have been appropriate for Ms. Holley to have another person check to ensure that she had swiped her card through the machine correctly. They argue that because this alternate accommodation was available to Ms. Holley, she cannot show a failure to accommodate with respect to her attendance card. The Defendants did not make this argument in moving for summary judgment. Even if they had, they fail to acknowledge the body of case law which establishes the employer's responsibility under the ADA to engage in an interactive process with the employee through which reasonable accommodations may be determined. See, e.g., Emerson v. Northern States Power Co., 256 F.3d 506, 515 (7th Cir. 2001) ("[T]he ADA requires employers to engage in an interactive process with disabled employees needing accommodation so that together they can identify the employee's needs and discuss accommodation options."); Bultemeyer v. Fort Wayne Comm. Schs., 100 F.3d 1281, 1285 (7th Cir. 1996) ("An employee's request for reasonable accommodation requires a great deal of communication between the employee and employer . . . both parties bear responsibility for determining what accommodation is necessary."). There is no suggestion in the record that this alternative accommodation was suggested to Ms. Holley or that any effort was made to assist her with her attendance card problems which were due to her visual disability.
Furthermore, the evidence is that one accommodation which was to be provided to Ms. Holley was to allow as much natural lighting into her classroom as possible. According to Ms. Holley, however, Ms. Carey, with whom she shared a classroom during the 1999-2000 school year, kept the shades down the whole school year, though sometimes she would let up one shade. (Holley Dep. at 369.) Thus, there is a dispute of fact over whether this accommodation was actually provided Ms. Holley despite the Defendants' claim that this accommodation was made.
The Defendants contend that no further accommodation was required since it is undisputed that Ms. Holley could perform the essential functions of her job with the accommodations in place. They cite Rauen v. U.S. Tobacco Mfg. Ltd. Partnership, 319 F.3d 891 (7th Cir. 2003), as support, but acknowledge that the court did not address the issue in that case. Furthermore, in this case, in contrast with Rauen, there is no evidence that Ms. Holley is able to perform the essential functions of her job without accommodation. The same is true with respect to Black v. Wayne Center, Nos. 99-1225, 99-1249, 2000 WL 1033026, at *3 (6th Cir. July 2000) (unpublished decision), cited by Rauen, in which the court concluded that since the "plaintiff is able to perform the job without accommodation, [the] plaintiff cannot demonstrate the objective reasonableness of any desired accommodation". Even though Ms. Holley may have stated that she was capable of performing her duties with the accommodations provided her, the record reveals that the Defendants perceived deficiencies in her performance, including in the areas of student discipline and control and completing paperwork, which deficiencies may be attributable in part to her visual disability.
At the very least the evidence is that Ms. Holley was required to swipe an attendance card, was not fully capable of getting her card to correctly swipe through the attendance card machine, and, as a result, was marked absent at times when she was not. Thus, she could not fully perform this job requirement.
Accordingly, the Defendants will be denied summary judgment on the failure to accommodate claims.
2. Hostile Work Environment
Ms. Holley alleges that she was harassed because of her disability. The Seventh Circuit has not decided whether a hostile work environment claim exists under the ADA. See Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999). Assuming such a claim exists, in order to establish the claim, a plaintiff must show that her work environment was both subjectively and objectively hostile. Silk, 194 F.3d at 804 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Employers may be held vicariously liable for harassment by supervisors, but a plaintiff must show employer negligence to hold an employer liable for co-worker harassment. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, ___, 118 S. Ct. 2275, 2292-93 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431-32 (7th Cir. 1995)).
An objectively hostile work environment is one that a reasonable person would find hostile or abusive. Silk, 194 F.3d at 804 (citing Harris, 510 U.S. at 21). In deciding whether an environment is objectively hostile, a court "must consider all the circumstances, including `the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris, 510 U.S. at 23). To constitute a hostile environment, the harassment must be "so `severe or pervasive' as to `alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. (citing Faragher, 524 U.S. at ___, 118 S. Ct. at 2283 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986))). Therefore, a plaintiff "must demonstrate that a rational trier of fact could find that h[er] workplace is permeated with discriminatory conduct — intimidation, ridicule, insult — that is sufficiently severe or pervasive to alter the conditions of h[er] employment." Id.
In their moving brief, the Defendants contend that the majority of Ms. Holley's allegations regarding harassment relate to criticisms of her job performance or supervisory decisions regarding school management. They claim that her supervisors had legitimate, nondiscriminatory reasons for criticizing her performance and for their decisions regarding her assignments. They also claim that Ms. Holley failed to make IPS aware of the other problems she was having. (Defs.' Br. Supp. Mot. Summ. J. at 20, 21, 23.) Finally, the Defendants argue that Ms. Holley's complaints do not amount to actionable harassment. ( Id. at 24.)
This argument is made in the section of the Defendants' brief addressing the constructive discharge. However, the court does not constrain this argument to that claim as it may be read as directed to the hostile work environment claim as well.
Ms. Holley claims that the harassment primarily took the form of undue criticism of and frequent reprimands for her job performance, which performance issues were connected to her blindness. She also claims that she suffered humiliation at the hands of her supervisors and coworkers. Specifically, Ms. Holley testified that Mr. Whisler criticized her over the school loudspeaker for sloppy attendance sheets, rather than addressing the issue in private, even though she already had told him she could not see very well. While it seems inappropriate for him to criticize a teacher over the loudspeaker rather than in private and the criticism may seem unfair under the circumstances, this incident was not severe and there is nothing to suggest it happened more than once. Ms. Holley claims that she was reprimanded if she was late getting to class by trying to move through the hallways when students were present, or if she left her class ahead of time in order to move through the hallways when they were not crowded with students. (Holley Dep. at 522.) (Her assistant was supposed to assist her in moving through the hallways, but the evidence is she did so only sometimes ( id. at 521), which may bear on her failure to accommodate claim.) However, Ms. Holley has not directed the court to any evidence of the frequency of these reprimands.
Ms. Holley claims that Ms. Crutchfield called her into her office fourteen or fifteen times to give her negative feedback and tape recorded her each time but did not tell her before hand; told other teachers and her assistants to evaluate and document her actions on paper; and asked her assistants to report any complaints about her in her presence, which was demeaning to her. Ms. Holley, however, can point to no evidence which raises a genuine issue that Ms. Crutchfield gave her negative feedback and asked others to report and document her performance problems for any reason other than the fact that Ms. Crutchfield had concluded that Ms. Holley had serious performance problems which needed to be documented and addressed. The evidence is that Ms. Crutchfield's practice was to have staff talk directly to each other to resolve concerns among themselves and to document complaints and performance problems when warranted. (Crutchfield Aff. ¶ 34.) Further, even fourteen to fifteen incidents of tape recording meetings over the course of an entire school year are not sufficiently severe or pervasive and abusive as to support a hostile work environment claim.
Ms. Holley complains that Ms. Crutchfield once came into her classroom to evaluate her without letting her know she was there, and, because of her blindness, she was unaware of her presence. Ms. Holley states that on that occasion Ms. Crutchfield criticized her about not knowing her students in front of the class, "very harshly" said she wanted to see her outside of class, and then outside the class criticized her teaching and failure to help a student. Ms. Holley also complains about Ms. Crutchfield's treatment of her related to her May 2000 performance evaluation, including calling her "trifling and lazy" when she said she had not received the evaluation. As well, Ms. Holley complains that Ms. Crutchfield snapped at her when she inquired about her room assignment for the year and once told her to "shut up and sit there". On one occasion, when Ms. Holley did not hear what a student yelled at another teacher and she told the teacher that she did not hear what was said because she was not paying much attention and was working with other students, she later overheard the teacher say on a telephone, "Ms. Holley is as deaf as she is blind." (Holley Dep. at 205.) Ms. Holley claims that Ms. Crutchfield demanded explanations from her about incidents which were documented in her personnel file, although she was unaware of the documentation, and in one incident she was falsely accused of forging an assistant principal's name, but the documentation was never removed from her file when it became clear she was not responsible.
Ms. Holley's harassment claim also relies on her allegation that she was not allowed to remove special education students from the classroom without Ms. Carey's permission while other inclusion teachers could do so at their own discretion. However, as stated, her evidence regarding what other inclusion teachers did is hearsay and thus fails to raise a genuine issue.
While Ms. Crutchfield could have been more pleasant in her dealings with Ms. Holley, the ADA does not ensure civility or kindness in the workplace. See Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001). The teacher who referred to Ms. Holley as being as deaf as she is blind could have been more sensitive, too, but this was an isolated comment made by a co-worker, and there is nothing to suggest that any of the Defendants were made aware of this comment. Furthermore, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Silk, 194 F.3d at 807 (quotation omitted). These incidents complained of by Ms. Holley were relatively isolated and were not extremely serious. Thus, they do not establish a hostile work environment.
Finally, Ms. Holley claims that she was placed in an inclusion room with Ms. Carey who kept the shades pulled the whole year, although she needed a classroom with natural light; she had no private place to put her things; she had no teacher's desk or chair; she did not have a key to the faculty restroom which forced her to use the girls' restroom; and she had trouble swiping her attendance card properly which both Mr. Whisler and Ms. Crutchfield knew but would not allow her any accommodation. First, regarding the need for natural light, the Defendants' initial brief does not address whether Ms. Carey kept the shades down. In reply, they argue that Ms. Holley failed to dispute that she did not make anyone aware of this concern. (Defs.' Reply at 9 (citing Crutchfield Aff. ¶¶ 28-30.)) These paragraphs of Ms. Crutchfield's affidavit do not mention the lack of natural lighting or the window shades, and therefore do not support the claim that Ms. Holley has not disputed her failure to inform anyone that the shades were pulled down. Perhaps, the evidence could support a reasonable inference that Ms. Crutchfield was aware that the shades were pulled down — the evidence is that Ms. Carey kept the shades down the whole year, only sometimes pulling one shade up (Holley Dep. at 369), and one would expect that the principal would visit the classroom from time to time. Indeed, the evidence is that she came into Ms. Holley's classroom on at least one occasion — when she criticized her in the students' presence and was "very harsh." However, while keeping the shades down may have been the norm rather than the exception, it cannot be considered severe and could not be characterized as abusive.
She also claims that her personal materials were thrown away when she left for surgery in October 1997, but the evidence does not raise a reasonable inference that Mr. Whisler was responsible, as she seems to suggest.
As for the attendance card problem, Ms. Crutchfield disclaimed any awareness that Ms. Holley had a problem with her attendance card. Ms. Holley, on the other hand, testified that she asked both Mr. Whisler and Ms. Crutchfield if she could have an assistant swipe her card and they told her that she could not have someone else swipe her card for her. Thus, these facts are genuinely disputed. While the failure to provide Ms. Holley with assistance with her attendance card supports Ms. Holley's failure to accommodate claim and could be considered insensitive and uncaring, it cannot be characterized as abusive such that it would create a hostile work environment, however.
The same is true with regard to the alleged lack of a restroom key. Even if the evidence reasonably supports an inference that Ms. Crutchfield was aware that Ms. Holley had no restroom key, that would be insufficient to support a hostile and abusive environment. Ms. Holley also testified that she had no desk and chair, but the court understands her to be complaining that she had to share a desk and chair with Ms. Carey, the regular education teacher. The evidence is that all inclusion teachers and regular education teachers shared space. Thus, the fact that Ms. Holley did not have her own desk or chair, just like the other inclusion teachers, cannot raise an inference of a hostile environment.
Accordingly, the Defendants have persuaded the court that summary judgment should be granted on the hostile work environment disability claim. Their motion therefore will be granted on that claim.
3. Constructive Discharge
Ms. Holley alleges constructive discharge. The Seventh Circuit has yet to decide whether a constructive discharge claim arising from a hostile work environment is cognizable under the ADA. It has assumed that such a claim exists. E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 440 (7th Cir. 2000); Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999). In order to prove a constructive discharge claim, assuming one exists, a plaintiff must be able to show that "the employer made the working conditions so intolerable as to force a reasonable person to leave." Sears, Roebuck, 233 F.3d at 440. "Unless conditions are beyond `ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress." Id. at 440-41 (quotation omitted). If the plaintiff can show constructive discharge, then she must prove that she was constructively discharged because of her disability. Id. at 440.
Given the court's conclusion that the evidence is insufficient to raise a genuine issue of material fact on the harassment claim, it follows that the evidence is insufficient to raise a genuine issue of fact regarding the constructive discharge claim. Therefore, the Defendants will be granted summary judgment on the constructive discharge disability claim.
The conclusion that Ms. Holley has insufficient evidence to sustain a constructive discharge claim leads to the inevitable conclusion that her alleged discharge cannot support her retaliation claim either.
4. Retaliation
Ms. Holley alleges that she was retaliated against for requesting an accommodation for her disability. The retaliation, according to Ms. Holley, took the form of her alleged constructive discharge, a poor performance evaluation (which the court infers is the May 2000 evaluation from Ms. Crutchfield), Ms. Crutchfield's change in her teaching classroom assignment, performance criticisms, and specific instances of discriminatory treatment she received after asking for accommodations.
The Defendants contend they are entitled to summary judgment on the retaliation claim because Ms. Crutchfield's evaluation and her other criticisms of Ms. Holley's job performance were based on that performance, which provides a legitimate, nondiscriminatory reason which is unrebutted by the Plaintiff. The Defendants also claim that the evidence establishes that Ms. Crutchfield was informed that Ms. Holley would not be transferring to Day Adult before she prepared the evaluation (Crutchfield Aff. ¶ 35), so any allegation that the evaluation was prepared to prevent her transfer is unsupported by the evidence. Lastly, according to the Defendants, any claims of retaliation arising from conduct occurring before January 27, 2000 are time-barred.
The Plaintiff, however, does not pursue such a claim. In any event, as discussed, Ms. Crutchfield had a legitimate, nondiscriminatory reason for the performance evaluation — Ms. Holley's performance.
The court addresses the last argument first. Since Indiana is a non-deferral state for purposes of establishing when an employee must file charges alleging retaliation for having opposed an unlawful employment practice (in contrast with retaliation for having filed a complaint, testified at a hearing before the Indiana Civil Rights Commission or assisted the Commission, Ind. Code § 22-9-1-6(h)), a charge of discrimination alleging retaliation for opposing an unlawful employment practice must be filed within 180 days of the alleged act which forms the basis for the retaliation claim. See E.E.O.C. v. N. Gibson Sch. Corp., 266 F.3d 607, 617 (7th Cir. 2001) (age discrimination claims). On July 25, 2000, Ms. Holley filed her first charge of discrimination, alleging retaliation. Thus, any claim of retaliation arising from conduct which occurred more than 180 days prior, that is, prior to January 27, 2000, is time-barred. This includes all claims involving Mr. Whisler, who had no contact with Ms. Holley after 1999. This also includes any claims involving conduct of Ms. Crutchfield which occurred prior to January 27, 2000. This includes Ms. Crutchfield's change in Ms. Holley's teaching and classroom assignment for the 1999-2000 school year. However, it is unclear from the record whether many of the specific instances of alleged discriminatory treatment about which Ms. Holley complains occurred before January 27, 2000 or after that date. Thus, the court's analysis must proceed further.
An employee attempting to prove retaliation under the ADA, as with the other federal anti-discrimination statutes, may proceed in one of two ways: either under the direct method of proof or the indirect method of proof adapted from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). It seems that Ms. Holley proceeds under the latter method only. Under this method as articulated in Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th Cir.), cert. denied, 537 U.S. 879 (2002): the plaintiff must show that she engaged in statutorily protected activity; she performed her job according to her employer's legitimate expectations; nonetheless, she suffered an adverse action from the employer; and no similarly situated employee who did not engage in statutorily protected activity suffered an adverse action. Davis v. Con-Way Transp. Cent. Exp., Inc., 368 F.3d 776, 788 (7th Cir. 2004). If the plaintiff establishes these things, then the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse action. Id. If the defendant's evidence is not rebutted by a showing of pretext, then the defendant is entitled to summary judgment. Id.
The Defendants claim that Ms. Holley must rely on the McDonnell Douglas framework, and Ms. Holley does not dispute this in opposing summary judgment. However, to the extent she may claim she can proceed under the direct method, her claims would fail as she has insufficient direct evidence to raise a triable issue of fact and the mosaic of circumstantial evidence does not raise a genuine issue for trial.
It is undisputed that Ms. Holley can prove that she engaged in protected activity. However, the Defendants have offered legitimate, nondiscriminatory reasons for Ms. Crutchfield's poor performance evaluation of Ms. Holley as well as her numerous criticisms of Ms. Holley's job performance: Ms. Crutchfield concluded based on her own observations and reports of others that Ms. Holley's performance was unsatisfactory including in the areas of student control, classroom management, and her working relationships with her assistants, Ms. Carey and others. Ms. Crutchfield also was concerned that Ms. Holley was instructing her assistants to prepare required compliance data and was unfamiliar with her students' individual needs. Parents had complained to her that Ms. Holley was not implementing modifications for special education students in accordance with the IEPs. Ms. Crutchfield continued to receive a number of reports of poor performance by Ms. Holley throughout the 1999-2000 school year and continuing after her January 3, 2000 memorandum outlining her performance expectations, which Ms. Holley had agreed were reasonable.
Because the Defendants have offered legitimate nondiscriminatory reasons for Ms. Crutchfield's criticisms of Ms. Holley's performance and her poor performance evaluation, it is up to Ms. Holley to rebut the Defendants' evidence by a showing of pretext. Prextext may be shown by establishing that the stated reasons (1) have no basis in fact; (2) did not actually motivate the adverse action; or (3) were insufficient to motivate the adverse action. Davis, 368 F.3d at 784. A pretext is not a mere error, but a lie, specifically, a phony reason for the action. Hudson v. Chi. Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004); O'Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002). "The focus of a pretext inquiry is whether the employer's stated reason was honest, not whether it was accurate, wise, or well-considered." Davis, 368 F.3d at 784 (quotation omitted).
Though Ms. Holley argues that there are material facts as to whether the criticisms and evaluation were based on a lack of accommodation and employer insensitivity to her visual disability, she has not produced sufficient evidence to raise a reasonable inference that the asserted reasons are pretexts for retaliation. Ms. Holley's own disagreement with her employer's assessment of her performance is insufficient to create a triable issue of pretext. See, e.g., Pitasi v. Garnter Group, Inc., 184 F.3d 709, 719 (7th Cir. 1999); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1460-61 (7th Cir. 1994). Instead, she must offer evidence to raise a reasonable inference that her employer did not honestly believe that her performance was poor. See, e.g., Pitasi, 184 F.3d at 719; Dey, 28 F.3d at 1460-61. She has not offered any evidence to raise a reasonable inference that Ms. Crutchfield did not genuinely believe that her performance was unsatisfactory. Therefore, her retaliation claim premised upon Ms. Crutchfield's performance criticisms and poor performance evaluation fails.
This, however, leaves her retaliation claim to the extent it is based on specific instances of alleged discriminatory treatment she received after asking for accommodations. The Defendants' arguments for summary judgment do not adequately address this aspect of her retaliation claim. While some of the specific instances of alleged discrimination would no doubt be time-barred based on the filing of the EEOC charge, it is not apparent that all allegedly discriminatory conduct would be barred, as the Defendants have argued with a broad brush and the evidence fails to indicate when much of the alleged discriminatory treatment occurred. Therefore, the court finds that summary judgment should be denied on the disability retaliation claims.
The Defendants did not raise the argument of whether the specific instances of discriminatory conduct could constitute an adverse action sufficient to establish a prima facie case of retaliation. Perhaps such an argument could be gleaned from the argument in their reply brief that Ms. Holley's complaints fail to demonstrate "ordinary discrimination" (see Reply Br. at 11-12), but even if it could, their failure to advance the argument in their opening brief makes this an inappropriate ground upon which to grant summary judgment.
B. Title VII Claims
The Defendants argue that they are entitled to summary judgment on the Plaintiff's race and sex discrimination claims. As an initial matter, any Title VII claims against Dr. Pritchett and Ms. Crutchfield in their individual capacities should be dismissed for failure to state a claim. See, e.g., Robinson v. Sappington, 351 F.3d 317, 332 n. 9 (7th Cir. 2003) ("only the employee's employer who may be held liable under Title VII"); Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995) (because a supervisor does not come within Title VII's definition of "employer," a supervisor sued in his or her individual capacity cannot be held liable under Title VII). Accordingly, these claims will be dismissed.
The Defendants contend that Ms. Holley cannot establish a prima facie case of race or sex discrimination. The only argument offered in response by the Plaintiff is that "[t]he evidence supports . . . Plaintiff's race discrimination charge under 1981 and Title VII (Plaintiff's Affidavit ¶ 11 21)." (Pl.'s Resp. at 27.) Thus, the Plaintiff does not offer even a conclusory argument regarding her sex discrimination claims, and the court assumes she has abandoned these claims. Even if she has not abandoned her sex discrimination claims, the Defendants should be granted summary judgment on them for the reasons articulated in their supporting and reply briefs.
As for race discrimination, Ms. Holley may proceed in two ways: under the direct method of proof or under the indirect, burden shifting method of proof established in McDonnell Douglas. See Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1034 (7th Cir. 2004). There are two types of evidence under the direct method: (1) an admission by the decisionmaker of intentional discrimination, and (2) a "convincing mosaic of circumstantial evidence" that points to a discriminatory reason for the challenged action. Davis v. Con-Way Transp. Cent. Exp., Inc., 368 F.3d 776, 783 (7th Cir. 2004).
The Defendants do not assert that Ms. Holley cannot proceed under the direct method, but skip to the indirect, burden shifting method. What little can be gleaned from the scanty argument in Ms. Holley's brief regarding the race discrimination claims is that she does not proceed under the direct method of proof. In any event, she clearly has no admission by the Defendants of race discrimination. Other than her own statement that three Caucasian teachers were given accommodations for their physical disabilities, it is unclear what other evidence, if any, she relies upon to prove race discrimination through "a convincing mosaic of circumstantial evidence." The other evidence she offers pertains to her disability rather than race, and it cannot be described as a convincing mosaic of circumstantial evidence of racial discrimination. The mere fact that three Caucasian teachers were given some accommodations for their disabilities is insufficient to raise a triable issue as to the Defendants' discriminatory intent under the direct method of proving race discrimination. Therefore, the court proceeds to consider the race discrimination claims under McDonnell Douglas.
To survive summary judgment under McDonnell Douglas, a plaintiff must first demonstrate a prima facie case by establishing: (1) she was a member of a protected class; (2) she was meeting her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) other similarly situated employees who were not members of the protected class were treated more favorably. Davis, 368 F.3d at 784. If the plaintiff demonstrates these elements, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. Id. Once the employer does so, the plaintiff must rebut the stated reason with evidence that it is a pretext for race discrimination. Id. The Defendants argue that Ms. Holley cannot demonstrate a prima facie case of race discrimination because she cannot show that she was meeting her employer's legitimate expectations, that she was subject to an adverse action, and that similarly situated individuals were treated more favorably. They also argue that Ms. Holley cannot rebut their legitimate nondiscriminatory reasons for taking the challenged actions.
As stated, in opposing summary judgment with respect to the race discrimination claims, the Plaintiff's one sentence response cites to two paragraphs of her affidavit. Of these, only one refers to race. In that paragraph, Ms. Holley states that IPS granted reasonable accommodations to others at IPS #28, including Ms. Kitterman, a Caucasian special education teacher who had a serious hearing defect; Ron Burt, a blind Caucasian regular math teacher; and Dorothy Carey, a Caucasian Math teacher who had a leg impairment. (Holley Aff. ¶ 11.)
The court concludes that on the basis of the evidence, Ms. Holley cannot demonstrate a triable issue as to her prima facie case of race discrimination. As discussed above, the evidence establishes that she was not meeting her employer's legitimate expectations. Furthermore, because Indiana is a deferral state for purposes of race discrimination claims, a charge alleging race discrimination must be filed within 300 days of the alleged unlawful act. Ms. Holley's charge of discrimination filed December 22, 2000, alleged race discrimination. Thus, any race discrimination claims arising from conduct which occurred before February 26, 2000 is time-barred.
Accordingly, the Defendants should be granted summary judgment on the race discrimination claims.
C. § 1981 Claims
Ms. Holley further claims that the Defendants violated § 1981 which prohibits racial discrimination in the making and enforcing of employment contracts by discriminating against her on the basis of her age and race. The Seventh Circuit has said, though in dicta: "The legislative history of the statute clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality. Thus, section 1981 does not protect against discrimination based on sex or religion or age." Anooya v. Hilton Hotels Corp., 733 F.2d 48, 50 (7th Cir. 1984) (quotation and citation omitted). Therefore, the Defendants will be granted summary judgment on Ms. Holley's § 1981 claims based on age.
Though the Complaint does not allege a violation of the Age Discrimination in Employment Act ("ADEA"), the Defendants sought summary judgment on a claim under the ADEA because the Plaintiff testified that she believed she was discriminated on the basis of her age. The Plaintiff's brief does not argue that summary judgment should be denied on the age claims. Thus, she is considered to have abandoned those claims. Even if she has not abandoned them, the only evidence she offers of age discrimination is that she heard from others that Mr. Whisler and Ms. Crutchfield made comments about her age. This evidence is insufficient to entitle her to a trial on an age claims.
Furthermore, § 1981 race discrimination claims are subject to the same analysis as Title VII race discrimination claims. E.g., E.E.O.C. v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 658 (7th Cir. 2003); Alexander v. Wis. Dep't of Health Family, 263 F.3d 673, 681-82 (7th Cir. 2001). Thus, for the same reasons stated in the discussion of Ms. Holley's Title VII race discrimination claims, summary judgment will be granted the Defendants on Ms. Holley's § 1981 race discrimination claims.
D. § 1983 Claims
Ms. Holley alleges a claim under § 1983 which prohibits persons acting under color of state law from depriving a citizen of any right, privilege or immunity secured by the Constitution or federal law. 42 U.S.C. § 1983. The Defendants claim that both Ms. Crutchfield and Dr. Pritchett are entitled to summary judgment on the § 1983 claims. They argue that Ms. Holley must show that she was discriminated against by the Board pursuant to a policy, custom or practice. The Defendants claim that Ms. Crutchfield had no role in policymaking and, therefore, her decisions regarding Ms. Holley cannot serve as the basis for a § 1983 claim. They also claim that Ms. Holley has not alleged that Dr. Pritchett took any action against her at all.
Ms. Holley does not respond to the argument that Dr. Pritchett is entitled to summary judgment on the § 1983 claim. "Because § 1983 does not allow actions against individuals merely for their supervisory role of others, individual liability under 42 U.S.C. § 1983 can only be based on a finding that the defendant caused the deprivation at issue." Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (quotation omitted); see also Hildebrandt v. Ill. Dep't of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003) (§ 1983 "liability does not attach unless the individual defendant caused or participated in a constitutional deprivation") (quotation omitted). The Complaint does not allege and the evidence does not raise a reasonable inference that Dr. Pritchett took any action against Ms. Holley or otherwise caused any deprivation of her rights. Therefore, Dr. Pritchett will be granted summary judgment on the § 1983 claim against him.
Ms. Holley does not respond to the argument that she must show a custom or policy of the Board to hold the Board liable under § 1983. As explained by the Seventh Circuit:
A court may not hold a government entity, such as a board of education, liable under § 1983 unless the entity adopted a policy or custom that resulted in the deprivation of the plaintiff's constitutional rights. A plaintiff may prove the existence of municipal policy or custom in one of three ways: proof of an express policy causing the loss, a widespread practice constituting custom or usage that caused the loss, or causation of the loss by a person with final policymaking authority.Bennett v. Roberts, 295 F.3d 687, 700 (7th Cir. 2002) (quotations omitted). Ms. Holley offers no evidence whatsoever of an express policy or widespread practice. She offers no evidence to raise a reasonable inference that Ms. Crutchfield played any role in policymaking or any other evidence to establish that a custom or policy caused a deprivation of her rights. Therefore, summary judgment will be granted the Board on the § 1983 claims.
As for the § 1983 claim against Ms. Crutchfield, the Defendants err in suggesting that a § 1983 claim can be brought only against a policymaker. To the contrary, it is well-established that "[i]ndividual liability under 42 U.S.C. § 1983 can . . . be based on a finding that the defendant caused the deprivation at issue." Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (quoting Kelly v. Mun. Courts of Marion County, 97 F.3d 902, 909 (7th Cir. 1996)); see also Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Ms. Holley maintains there is a dispute of material fact as to Ms. Crutchfield's personal involvement in the failure to accommodate her. Ms. Holley is correct. Thus, summary judgment is denied Ms. Crutchfield on the § 1983 claim against her.
III. CONCLUSION
For the foregoing reasons, the Defendants' Motion for Summary Judgment (Docket No. 39) will be GRANTED in part and DENIED in part. Therefore, the ADA and Title VII claims against Dr. Pritchett and Ms. Crutchfield in their individual capacities will be DISMISSED for failure to state a claim; summary judgment will be GRANTED: (1) on the disability harassment and constructive discharge claims under the ADA and Rehabilitation Act, (2) on the sex discrimination and race discrimination claims under Title VII and § 1981, (3) on the age discrimination claims under § 1981, and (4) to Dr. Pritchett and the Defendant Board on the § 1983 claims; but summary judgment is DENIED on: (1) the failure to accommodate and disability retaliation claims under the ADA and Rehabilitation Act, and (2) the § 1983 failure to accommodate claim against Ms. Crutchfield.
Because claims remain for trial and these claims are closely related to the claims for which summary judgment should be granted, judgment will not be entered until the disposition of the remaining claims.
ALL OF WHICH IS ENTERED.