Opinion
No. 99 C 7277
July 20, 2000
MEMORANDUM OPINION AND ORDER
Joseph Konewko sues the Village of Westchester ("Westchester") for employment discrimination. Konewko claims Westchester refused to transfer him to various positions within the police department due to his age (Count I) in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq., and refused to make a reasonable accommodation for his back injury (Count II) in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq. Konewko also alleges Westchester denied his transfer requests in retaliation for filing discrimination charges with the Equal Employment Opportunity Commission ("EEOC") (Count III). He further alleges Westchester retaliated against him for filing a workman's compensation claim (Count IV) in violation of Illinois law. Westchester moves for summary judgment pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1.
BACKGROUND
The court views the background facts in a light most favorable to Konewko as the non-movant; all disputed facts must be resolved in his favor for purposes of this motion.
I The parties
Konewko, who is fifty-six years old, has worked as a patrol officer for Westchester's police department since 1971. Westchester's police department has thirty-eight officers including: twenty-one patrol officers, seven sergeants, two detectives, two DARE officers, one juvenile officer, one temporary third detective (a temporary one-year detective position), one patrol commander, a deputy chief and the chief of police. Robert Smith is chief of police and has the discretion to assign light duty for injured officers. Joseph Gorski is a lieutenant in the police department and was in charge of selecting the temporary third detective for 1997-2000.
II Konewko's physical condition
Konewko originally injured his back in 1991. When he returned to work in 1995, Konewko had problems wearing a heavy gun belt and with prolonged sitting in a squad car. At his request, Westchester allowed Konewko to wear a lighter gun belt and pistol. This helped his back pain temporarily. However, the back pain continued. Dr. Henry Echiveri began treating Konewko for his back pain in October 1997. On November 24, 1997, Dr. Echiveri recommended that Konewko not wear a gun belt and service pistol while at work. On August 3, 1998, Dr. Echiveri placed him on temporary total disability and prescribed physical therapy. Konewko completed therapy and returned to work in September 1998. Dr. Echiveri continued to treat Konewko and on September 10, 1998 advised him to restrict his work to a desk job. On September 23, 1998, Konewko submitted two medical reports to Westchester. Dr. Echiveri's September 11, 1998 report stated that Konewko continued to have pain in his back which was reactivated by prolonged posture maintenance such as prolonged sitting or standing. Dr. Echiveri recommended that Konewko spend less time in a squad car and that he restrict a significant part of his work to a sedentary job. On October 28, 1998, Konewko was examined by Dr. Ryan, a doctor retained by Westchester to confirm Dr. Echiveri's diagnosis. Dr. Ryan confirmed Dr. Echiveri's recommendations and was of the opinion it would be difficult for Konewko to work as a patrol officer. Dr. Ryan recommended an "inhouse" position for Konewko where he could limit his bending, squatting, kneeling and crawling. Despite Dr. Echiveri's recommendation, Konewko continued to work as a patrol officer.
On November 1, 1998, Konewko was involved in an automobile accident while driving his squad car. On November 2, 1998, Dr. Echiveri treated Konewko as a result of the accident and placed Konewko on temporary total disability until December 15, 1998. On December 14, 1998, Dr. Echiveri issued a medical note stating Konewko was totally disabled from work until further notice. In July 1999, Konewko felt well enough to work and requested appointment to a job that did not require wearing a gun belt or prolonged sitting in a squad car. On April 26, 2000, Dr. Echiveri prepared a medical report that summarized his treatment and opinions regarding Konewko's condition. Dr. Echiveri stated that he restricted Konewko from wearing a gun belt and prolonged sitting in a squad car and that these are the restrictions currently in effect. Dr. Echiveri stated Konewko could perform the job functions of interviewing witnesses, driving for short periods of time, sitting at a desk, appearing in court and processing arrest or search warrants as long as he does not have to wear a gun belt or ride in the squad car for full days. However, Konewko admits that he cannot forcefully apprehend suspects.
III Konewko's requests for accommodation and transfer
In 1997, Konewko requested transfer to the temporary third detective position but was not awarded the position. In February 1998, he filed a charge of discrimination with the EEOC and again requested the third temporary third detective position as well as positions in the juvenile division, in the DARE program, as a community service officer, in administrative duty or as an evidence technician. Westchester did not assign Konewko to any of the requested positions. On September 23, 1998, Konewko sent a memo to Chief Smith and Lieutenant Gorski requesting transfer as an accommodation for his back injury. In the memo, he requested transfer to the third detective position juvenile officer, DARE officer, or any accommodation that would not require him to wear a gun belt or prolonged sitting in a squad car. Westchester refused to assign Konewko to any other position. Konewko filed a second EEOC charge in March 1999 requesting reassignment to the same positions. He again requested accommodation in July 1999 after receiving treatment for his car accident. Konewko claims he should be awarded one of the following positions as an accommodation: third detective, juvenile officer, DARE officer, 911 supervisor or 911 operator.
Westchester refused all Konewko's requests for accommodation and reassignment. Westchester claims it did not select Konewko for the temporary third detective position because he lacked the desired qualities for the position and because other officers were more qualified. According to Westchester, a temporary third detective must be able to work unsupervised, complete and handle assignments given and initiate tasks on his own. Lieutenant Gorski was responsible for selecting the third temporary detective for each year. Westchester claims Gorski worked with Konewko for several years and did not believe Konewko possessed these qualities. Westchester claims that there were no vacant DARE or juvenile officer positions at the time Konewko requested transfer. It further claims that he cannot perform the duties of detective, DARE officer or juvenile officer because he is unable to forcefully apprehend suspects, which is required for all police department positions. Westchester contends Konewko was not qualified to be 911 supervisor because it was not available and only sergeants could fill this position. It further claims it could not transfer him to an operator or records position because these are civilian positions that are covered by a different union contract. Finally, Westchester claims there were no permanent light duty positions for a police officer that would accommodate Konewko's back injury.
IV Westchester's treatment of other employees
In 1997, 1998, and 1999, Westchester chose officers Mersch, Kaiser and Rollins to fill the temporary third detective position. All three are substantially younger than Konewko; at time of their appointments Mersch was thirty-six, Kaiser was forty-five and Rollins was thirty-nine. After the lawsuit was filed, Westchester chose officer Luciano, who is twenty-eight years old, as third temporary detective for 2000. Westchester claims these individuals were selected based on attendance, performance, report writing and appearance. Officer Hayes is the juvenile officer for Westchester and was appointed to the position in 1995. Officer April Padalik is DARE officer and was appointed in October 1995. Sergeant Blazek also served as a juvenile and DARE officer until December 1998. Officer Steiber, who is thirty-eight years old, was appointed as a DARE officer in September 1999. Sergeant Blazek also briefly served as 911 supervisor. A civilian now holds the 911 supervisor position. Konewko claims there were vacant DARE and juvenile positions from late 1998 until officer Steiber filled the position in September 1999 and that the 911 supervisor position was vacant after Blazek's departure. Smith stated that there were openings in the records department and Westchester hired civilians to fill the positions near the time Konewko requested accommodation.
Westchester has provided other employees light duty when they were injured. Officer Lucaszek was not required to apprehend suspects or do regular patrol officer duties for two years. He was later allowed to work in the juvenile division without being required to apprehend suspects. Officer Sheehan, who suffers from a brain injury, was given light duty, short hours, and work modifications for almost a year following his injury. Sheehan was also allowed to work at a desk job in a civilian position for Westchester. Officer Blazek performed his DARE duties while he was on crutches with a cast on his foot. Officer Hayes was relieved of bike duty for one summer following an injury. Westchester claims there are no permanent light duty positions and it has never assigned an officer to permanent light duty.
V Konewko's EEOC charges and benefits requests
On February 20, 1998, Konewko filed a charge with the EEOC claiming age and disability discrimination. Specifically, he claimed there were positions available in the police department that would accommodate his disability in 1996 and 1997 but they were given to younger officers. On June 30, 1998, the EEOC issued Konewko a right-to-sue letter for this charge. After his November 1, 1998 accident, Konewko filed for a disability pension on November 11, 1998. Under Westchester's policy, Konewko was paid disability for twenty weeks full pay, twenty weeks half pay, plus five weeks of vacation, twelve holidays and six sick days. Konewko is no longer receiving disability benefits. On November 13, 1998, Konewko filed a workers' compensation claim for his November 1, 1998 injury. On March 19, 1999, Konewko filed a second EEOC charge against Westchester, The second charge mirrors his first charge and further alleges that he unsuccessfully applied for positions that would have accommodated his injury in September 1998. The second charge also alleges Westchester denied him these positions in retaliation for filing the prior charge. The EEOC issued a right-to-sue letter for the second charge on August 11, 1999. Konewko filed this suit on November 8, 1999. Westchester has not discharged Konewko and his disability pension application is still pending.
VI Konewko's subsequent employment
Konewko has not returned to work at Westchester since his November 1, 1998 accident. He is currently employed full-time at Ho Chunk Casino as a security guard. He began working at Ho Chunk in August 1999. At Ho Chunk, Konewko is not required to wear a gun belt and spends five to six hours walking around and two to three hours sitting. He told Ho Chunk told about his back injury but has not informed it of any limitation in his job duties. Before working at Ho Chunk, Konewko worked part-time as an investigator at two other companies.
DISCUSSION
I Summary judgment standard
A movant is entitled to summary judgment when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America. Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P.56(e); Becker v. Tenenbaum-Hil1 Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee. Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears. Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). This language should not be misconstrued to require heightened review in employment cases. The Seventh Circuit has stressed that "there is no separate rule of civil procedure in employment discrimination cases;" rather, the "added rigor" language means only that "courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often, though not always, will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Employment discrimination case or not, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Inus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
II Statute of limitations
Before a plaintiff may file a civil suit against an employer under the ADA or ADEA, he must exhaust his administrative remedies. See 42 U.S.C. § 12217; 29 U.S.C. § 626. A plaintiff must file a timely EEOC charge and receive a right-to-sue letter. Once the EEOC issues a right-to-sue letter, a plaintiff must file suit based on the allegations contained in that charge within 90 days. Konewko received a right-to-sue letter for his first EEOC charge on June 30, 1998. However, Konewko did not file suit until August 11, 1999, eighty-nine days after the EEOC issued a right-to-sue letter for Konewko's second EEOC charge. Therefore, allegations contained in Konewko's first EEOC charge are time barred and he cannot seek recovery for conduct alleged in the first EEOC charge. He may only recover for Westchester's actions taken after February 20, 1998, the date he filed his first EEOC charge. Even though Konewko cannot recover for discriminatory conduct that occurred before February 1998, the conduct alleged in his first EEOC charge may be considered as circumstantial evidence of Westchester's alleged discriminatory conduct. See Hasham v. California State Board of Equalization, 200 F.3d 1035, 1049 (7th Cir. 2000).
III The ADA claim
A The ADA legal standard
The ADA prohibits employers from discriminating against a "qualified individual with a disability because of the disability." 42 U.S.C. § 12112. Konewko claims Westchester violated the ADA by failing to reasonably accommodate his disability. To survive a motion for summary judgment, Konewko must show (1) that he was, or is, disabled as defined by the ADA; (2) that the employer was aware of this disability, and (3) that he was qualified for the position he was holding. Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir. 1997). The parties dispute whether Konewko is disabled as defined by the ADA and whether he is a qualified individual.
B Disability as defined by the ADA
The ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of an individual." 42 U.S.C. § 12102 (2). "Major life activities" include "basic functions of life, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2 (j); Knapp v. Northwestern University, 101 F.3d 473, 479 (7th Cir. 1996). Every injury or impairment does not qualify as a disability. An impairment is a disability under the ADA only if it "substantially limits" a major life activity. Boulos v. Roadway Express. Inc., 139 F.3d 1147, 1151 (7th Cir. 1998). For an impairment to substantially limit one or more of these major life activities, the individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population. 29 C.F.R. § 1630.2 (j). A determination of whether a plaintiff is limited in a major life activity is made on a case-by-case basis. Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959 (7th Cir. 1996). Factors to be considered are (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2; Hamm v. Runyon, 51 F.3d 721, 5444 (7th Cir. 1995). Konewko has the burden on summary judgment to come forward with evidence that indicates he could meet the ultimate burden of showing an ADA recognized disability. DePaoli v. Abbott Lab., 140 F.3d 668, 673 (7th Cir. 1998).
Konewko presents sufficient evidence to create a genuine issue of fact as to whether he is disabled as defined by the ADA. Konewko presents evidence that he suffers from a serious and painful back injury. According to Dr. Echiveri, Konewko suffers from disk herniation that limits him from prolonged sitting or standing in excess of one hour. It also makes bending, stretching, staying in one position, and getting into or out of a car very painful. Although Dr. Echiveri's final report only limits Konewko from wearing a gun belt and riding in a car for prolonged periods of time, Dr. Echiveri also testified that he limited Konewko to a sedentary job indefinitely. Furthermore, Dr. Ryan diagnosed Konewko with degenerative arthritis. Accordingly to Dr. Ryan's report, Konewko's injury limits him from bending, squatting, kneeling and crawling. Konewko has suffered serious back pain since 1991 and re-aggravated the injury in 1998. Despite continuous treatment, the pain has persisted and forced him to go on total temporary disability intermittently. Dr. Echiveri has restricted him to a sedentary position indefinitely. Konewko's injury is unlike the "temporary, non-chronic" impairments that are not disabilities under the ADA. Konewko has presented evidence that his back injury significantly restricts him from performing everyday activities such as sitting, standing, walking, and bending as compared to an average person in the general population. Konewko has also presented evidence showing the substantial duration of his impairment and that the pain will continue indefinitely. From this evidence, a jury could conclude that Konewko's back injury substantially limits him in a major life activity.
C "Qualified individual with a disability"
If Konewko shows he is disabled as defined by the ADA, he must then establish that he is a qualified individual. The ADA defines a qualified individual as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111 (8). There are two parts of this definition. First, the disabled individual must satisfy the requisite skill, experience, education and other job-related requirements of the employment position he holds or desires. Nowak v. St. Rita high Sch., 142 F.3d 999, 1002-03. Second, he must be able to perform the essential functions of the position with or without reasonable accommodation. Id. at 1003. "The ADA does not relieve a disabled employee or applicant from the obligation to perform the essential functions of a job. To the contrary, the ADA is intended to enable disabled persons to compete in the workplace based on the same performance standards and requirements that employers expect of persons who are not disabled." 29 C.F.R. § 1630, App. The employer is entitled to define the job in terms of both its essential functions and the qualifications required for it. Webster v. Methodist Occupational Health Centers, Inc., 141 F.3d 1236, 1238 (7th Cir. 1998). Konewko bears the burden of proof to show he is a qualified individual under the act. Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996).
It is undisputed that Konewko cannot perform the duties of a patrol officer. He is unable to apprehend suspects, wear a gun belt or spend extended periods of time in a squad car. All of these are essential duties of a patrol officer. However, this is not the end of the inquiry. The ADA requires that once an employee informs his employer of a disability, the employer has a responsibility to provide a "reasonable accommodation." Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996). The "reasonable accommodation" requirement of the ADA imposes a duty on employers to engage in a flexible, interactive process with the disabled employee so that together they may identify the employee's precise limitations and discuss accommodations that may enable the employee to continue working. 29 C.F.R. § 1630.2 (o)(3); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998). An employer must make a reasonable effort to explore accommodation possibilities with the employee.Hendricks-Robinson, 154 F.3d at 693; Miller v. Illinois Dep't of Corrections, 107 F.3d 483, 486-87 (7th Cir. 1997). "If the employee is unable to perform his job, with or without accommodation, the employer must consider reassignment as one form of accommodation.Hendricks-Robinson, 154 F.3d at 693; 42 U.S.C. § 12111(9)(B); see also Cochrum, 102 F.3d at 913 (the ADA may require an employer to transfer an employee to another available job as a reasonable accommodation); Gile v. United Airlines. Inc., 95 F.3d 492, 497 (7th Cir. 1996) (reasonable accommodation may require reassignment to a position wholly distinct and different from the one the disabled employee previously held). Konewko claims he can perform the duties of DARE officer, 911 supervisor or operator, juvenile officer and temporary detective. He concludes that Westchester should have transferred him to one of these positions as an accommodation for his back injury.
The duty to reassign a disabled employee is not without limits. "Nothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to intra-company transfers."Hendricks-Robinson, 154 F.3d at 695 (citing Dalton v. Subaru-Isuzu Automotive. Inc., 141 F.3d 667, 678 (7th Cir. 1998). The employer need only transfer the employee to a position for which he is otherwise qualified. Cochrum, 102 F.3d at 913. An employer is not obligated to provide an employee the accommodation he requests or prefers; the employer need only provide some reasonable accommodation. Baert v. Euclid Beverage Ltd., 149 F.3d 626, 633 (7th Cir. 1997). "Moreover, the employer is only obligated to assign an employee to vacant positions, and is not required to bump other employees to create such a vacancy. Nor is the employer required to create a new position for the disabled employee." Id.
Konewko has presented sufficient evidence to create a genuine issue of fact whether Westchester met its responsibility under the ADA. Konewko informed Westchester of his injury and requested accommodation on September 23, 1998. This request triggered Westchester's obligation under the ADA. Westchester made no attempt to engage in an interactive process or accommodate him. Westchester never discussed the injury or the possibility of transfer with Konewko. An employer has an "affirmative obligation to seek [plaintiff] out and work with [him] to craft a reasonable accommodation, if possible, that would have permitted [his] return to work." Gile v. Wal-Mart Store, Inc., ___ F.3d ___, 2000 WL 656348, *6 (7th Cir. 2000). While the "interactive process is not an end in itself," Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000), it nonetheless is an important means "for determining what reasonable accommodations are available to allow a disabled person to perform the essential job functions of the position sought." Id. (quotingSieberns v. Wal-Mart Store, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997)). Furthermore, Westchester did not offer Konewko any position as an accommodation for his injury. An employer may be liable for the failure to engage in the interactive process if it results in a failure to identify an appropriate accommodation for the employee. Id. Konewko has presented evidence that Westchester failed to engage in the interactive process.
Konewko has presented evidence that he was qualified for positions within the police department at the time he requested accommodation. In his final report, Dr. Echiveri stated that Konewko could perform the job functions of interviewing witnessers, driving for short periods of time, sitting at a desk, appearing in court, processing arrest or search warrants and any other duties as long as they do not entail wearing a gun belt on his hips or full days of riding in a squad car. He claims these skills would allow him to perform all of the requested positions. Konewko also has presented evidence that positions were available at the time he requested transfer. Since Konewko's September 23, 1998 request for accommodation, Westchester has appointed two temporary third detectives, an additional DARE officer, a supervisor of 911 and has filled openings in its records department. In short, there is a genuine issue of fact whether Westchester met its obligation to reasonably accommodate Konewko.
Westchester's arguments otherwise are unpersuasive. It claims Konewko is not qualified for any of the positions within the police department because he is unable to apprehend suspects. Westchester claims that this is an essential function of all police officer positions and Konewko's inability to do so would put other officers at risk. However, Konewko presents sufficient evidence to call this requirement into question. Westchester has previously assigned police officers to duties that did not require them to apprehend suspects when they were injured. Specifically, officers Lucaszek, Sheehan and Blazek were all given duties where they were not required to make arrests. Officer Lucaszek was allowed to work without being able to make arrests for almost two years. Considering these facts, it is unclear that Konewko's inability to physically apprehend suspects disqualified him from all positions within the police department. While an employer is entitled to define job requirements, it may not apply requirements selectively. Baert, 149 F.3d at 631.
Westchester further claims Konewko was not qualified for the DARE position because he cannot wear a gun belt and cannot perform bike patrol; both of which are essential for a DARE officer. Konewko presents evidence that these may not be essential functions of the job. Blazek stated that as a DARE officer, he was not required to wear a full duty belt and was able to perform his DARE duties while wearing a cast on his foot. Also, Hayes, who was scheduled to perform bike patrol as a juvenile officer, was relieved of bike patrol duty for the summer when he was injured. Westchester claims it denied Konewko's repeated requests for transfer to DARE officer because the position was not available at the time he applied for it. Specifically, it asserts that Padalik is the DARE officer and has been since 1995. However, Konewko has presented evidence that Blazek also served as a DARE officer until late 1998 and Westchester assigned Steiber to DARE duty in September 1999. Konewko was available for the position before his accident in November 1998 and again after he was treated for the accident and requested work in July 1999.
Westchester contends that Konewko could not be considered for 911 supervisor because the minimum rank to oversee 911 is sergeant. Chief Smith testified that the lowest rank that oversaw 911 was sergeant and that it was his requirement. However, the record does not necessarily support this contention. A civilian employee was the 911 supervisor before and after Blazek held the position. The fact that a civilian replaced Blazek as 911 supervisor after he left the position in February 1999 and currently holds the position undercuts Westchester's claim that it did not transfer Konewko to the position because he was not of sufficient rank. Similarly, Westchester claims it could not transfer Konewko to 911 operator because it is a civilian position and operators are paid considerably less than police officers. These requirements also may be suspect. Konewko has presented evidence that Blazek served as supervisor of 911 and Sheehan was allowed to work in a civilian position at a deskjob in the water department when he was injured. Furthermore, under the ADA, an employer's duty to accommodate includes considering transferring the employee to positions that would represent a demotion,Hendricks-Robinson, 154 F.3d at 695. Westchester did not consider offering Konewko a civilian position even with a corresponding cut in pay.
Ultimately, Westchester may prove that Konewko is not qualified for any of the police officer positions he requested, that there were no permanent light duty positions available in the department, and that it could not have assigned him to a civilian position. However, Konewko has presented sufficient evidence to create a genuine question of fact on these issues. At this point it is unclear whether Westchester met its responsibility to engage in the interactive process and offer Konewko a reasonable accommodation as required by the ADA. Accordingly, the motion for summary judgment on his ADA claim (Count II) must be denied.
IV ADEA claim
A The ADEA legal standard
The ADEA prohibits employers from discriminating against employees forty years of age or older. 29 U.S.C. § 621 (b), 631(a). Konewko claims Westchester denied his requests for transfer to DARE officer, juvenile officer and temporary third detective due to his age. To succeed in an ADEA claim, a plaintiff does not need to show his age was the determining factor, it is enough to establish that the employer would not have made the adverse employment decision "but for" intentional age-based discrimination. Fairchild v. Forma Scientific. Inc., 147 F.3d 567, 571 (7th Cir. 1998). A plaintiff may prove discrimination in two ways. He may present direct or circumstantial evidence that age was the determining factor in the adverse action. Cengr v. Fusibond Piping Systems. Inc., 135 F.3d 445, 451 (7th Cir. 1998). The second, and more common way, is to utilize the indirect, burden-shifting approach for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and adapted to age discrimination claims under the ADEA in McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992). See also Fairchild, 147 F.3d at 571; Cengr, 135 F.3d at 451.
Konewko focuses on the McDonnell Douglas approach to prove his age discrimination claim. In order to prevail under the burden-shifting approach, Konewko must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). A successful prima facie showing creates a presumption of discrimination and forces Westchester to produce a legitimate non-discriminatory reason for the discharge. Id. Once Westchester meets this requirement, the burden shifts to Konewko to demonstrate that Westchester's stated reason is pretextual. McDonnell Douglas, 411 U.S. at 802; Jackson v. E.J. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999). Despite these shifting burdens of production, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff." Fairchild, 147 F.3d at 572 (quotingSaint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). If Konewko is unable to meet this burden, his claim fails. Sarsha, 3 F.3d at 1039.
B The prima facie case
To establish a prima facie case for his ADEA claim, Konewko must show (1) he was a member of the protected age group of forty or older; (2) he was performing his job satisfactorily; (3) he suffered an adverse employment action; and (4) substantially younger, similarly-situated employees were treated more favorably. Debs v. Northeastern University, 153 F.3d 390, 395 (7th Cir. 1998). Scott v. Parkview Mem. Hosp., 175 F.3d 523, 525 (7th Cir. 1999). The parties do not dispute that Konewko establishes a prima facie case of age discrimination. Konewko is 56 years old, his job performance has never been questioned, he was denied various positions within the police department, and substantially younger employees were chosen for the requested positions.
C Westchester's non-discriminatory reason for termination
Westchester claims it denied Konewko's requests for transfer to the DARE and juvenile officer positions because the positions were not available at the time of the requests. Westchester claims it denied Konewko's requests to be temporary third detective because he lacked the qualities desired in a detective candidate and because the officers selected were more qualified. To meet its burden, Westchester need only proffer evidence that taken as true would permit the conclusion that there was a non-discriminatory reason for the adverse action. Hicks, 509 U.S. at 509. Westchester's stated reasons are sufficient to meet its burden of proffering a non-discriminatory reason for refusing Konewko's request for transfer.
D. Pretext
Because Westchester has demonstrated a legitimate nondiscriminatory reason for denying his transfer requests, Konewko must show by a preponderance of the evidence that the stated reasons are a pretext for discrimination. Jackson, 176 F.3d at 983. Pretext in this context means "a lie, specifically a phony reason for some action." Jackson, 176 F.3d at 983 (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Konewko may establish pretext directly, with evidence that Westchester was more likely than not motivated by a discriminatory reason, or indirectly, with evidence that Westchester's explanation is not credible. Sarsha, 3 F.3d at 1039. Konewko may show that Westchester's stated reasons are not credible by "demonstrating that the reasons are factually baseless, were not the actual motivation for the [adverse action], or were insufficient to motivate the [adverse action]."Jackson, 176 F.3d at 983. If Westchester's reason is a pretext, an inference may be drawn that the real reason for denying Konewko's transfer requests was age. Anderson, 13 F.3d at 1123-24. If Konewko shows that Westchester's proffered reason is pretextual, he need not come forward with further evidence of intentional discrimination to survive summary judgment. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000); Jackson, 176 F.3d at 983.
In making the pretext determination, the court will not sit as a "super-personnel department that reexamines an entity's business decisions." Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). The issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. McCoy, 957 F.2d at 373. "An employer's honest belief, whether or not it is mistakenly held, is the issue relevant to these situations." Jackson, 176 F.3d 971;see also Fairchild, 147 F.3d at 573 (the court's job is to determine whether the employer gave an honest explanation of its behavior). In order to establish pretext, Konewko must present evidence to show that Westchester did not honestly believe in the reasons given for denying his requests for transfer.
Konewko has presented sufficient evidence from which a jury could conclude that Westchester's stated reasons for denying his transfer requests are pretextual. Westchester claims it denied Konewko's 1998 application for the temporary third detective because Gorski felt Konewko did not have the qualities for the position. Konewko testified that when he asked why he was not chosen for the position, he was told Westchester was looking for someone younger. Chief Smith stated that one reason for not choosing Konewko may have been that it was unknown how long Konewko would remain on the force to make use of the detective training. This testimony is relevant even though Gorski initially made the decision because Smith is chief of police and had ultimate authority over who was selected. As further evidence of pretext, Konewko points out that even though Westchester now claims Konewko did not possess the necessary qualities for detective, Konewko's job performance was not questioned at the EEOC proceedings regarding the transfer decision. Furthermore, Westchester claims Gorski witnessed Konewko disregard orders and that he never initiated a task on his own. However, there is no evidence of any incidents of insubordination by Konewko and he has been repeatedly commended and received awards throughout his career for good performance. From this evidence, a jury could conclude Westchester did not honestly believe it denied Konewko's application because he lacked the qualities desired for the job.
Westchester claims it denied Konewko's repeated requests for transfer to DARE officer because there is only one DARE position and it was not available at the time he applied. Specifically, it asserts that Padalik is the DARE officer and has been since 1995. Konewko has presented evidence that Blazek also served as a DARE officer until late 1998 and Westchester assigned Steiber to DARE duty in September 1999. In its reply brief, Westchester claims that no one replaced Blazek and that Konewko was on medical leave when it appointed Steiber to the position. Konewko points out that he was available for the position after he was treated for the accident and requested work in July 1999. The fact that Westchester appointed Steiger, who was 37 years old at the time, to DARE duty shortly after Konewko claims he requested the position suggests Westchester's stated reasons for denying Konewko's request for the DARE position are pretextual. Konewko has presented evidence that Westchester did not honestly believe in the reasons given for denying the transfer requests. Accordingly, the motion for summary judgment on Konewko's ADEA claim (Count I) must be denied.
V Federal retaliation claim
Both the ADA and the ADEA prohibit an employer from retaliating against an employee for exercising his rights. Konewko claims his transfer requests were denied in retaliation for the discrimination charges he filed with the EEOC. To establish a prima facie case of retaliation, Konewko must show (1) he engaged in statutorily protected expression; (2) he suffered an adverse action by the employer; and (3) there was a causal link between the protected expression and the adverse action. Johnson v. City of Fort Wayne, 91 F.3d 922, 938-39 (7th Cir. 1996). In order to demonstrate there is a causal link, Konewko "must demonstrate that [Westchester] would not have taken the adverse action but for the protected expression." McKenzie v. Illinois Dep't of Transportation, 92 F.3d 473, 483 (7th Cir. 1997). It is undisputed Konewko engaged in protected expression by filing EEOC charges and suffered an adverse employment action when his requests for transfer were denied. However, Konewko has not established a causal connection between the EEOC charge and denial of his transfer requests. Konewko presents no evidence that suggests Westchester would not have denied his September 23, 1998 transfer requests but for his filing the EEOC charges. Furthermore, the fact that Westchester denied Konewko's requests for transfer for the two years prior to the filing of his second EEOC charge further detracts from Konewko's allegations of a causal link. Accordingly, summary judgment must be granted for Westchester on Konewko's retaliation claim (Count III).
VI Workers' compensation retaliation claim
Konewko claims Westchester denied his transfer requests in retaliation for filing a workman's compensation claim and this has resulted in his constructive discharge in violation of 820 ILCS 305/1 et seq. Illinois law recognizes the tort of retaliatory discharge. Sweat v. Peabody Coal Co., 94 F.3d 301, 304 (7th Cir. 1996). To establish a claim of retaliation for filing a workers' compensation claim, Konewko must show: (1) that he was an employee of the defendant prior to his injury; (2) that he exercised a right guaranteed by the Illinois Workers' Compensation Act; and (3) that his discharge was causally related to his exercise of that right. Id. Westchester claims Konewko cannot maintain a retaliatory discharge claim because he was not discharged.
Westchester is correct. In Kelsay v. Motorola. Inc., 384 N.E.2d 353 (Ill. 1978), the Illinois Supreme Court recognized the tort of retaliatory discharge where an employee is terminated for exercising his rights under the Illinois Workers' Compensation Act. See also Sweat, 94 F.3d at 304. However, since Kelsay, Illinois courts have expressed a policy against expanding the tort and have consistently refused to do so.Barr v. Kelso-Burnett Co., 478 N.E.2d 1354 (Ill. 1985) (the Illinois Supreme Court "does not "strongly support' the expansion of the tort"); see also; Zimmerman v. Buchheit of Sparta Inc., 645 N.E.2d 877 (Ill. 1995) (no claim for demotion or discrimination short of discharge);Hartlein v. Illinois Power Co., 601 N.E.2d 720 (Ill. 1992) (no claim against employer who told disabled plaintiff to look for job elsewhere);Scheller v. Health Care Services Corp., 485 N.E.2d 26 (Ill.App. 1985) (no claim for constructive discharge). "To date, [the Illinois] supreme court has not expanded the tort of retaliatory discharge to encompass any behavior other than actual termination of employment." Welsh v. Commonwealth Edison Co., 713 N.E.2d 679. 683 (Ill.App. 1999) (collecting cases). Konewko presents no evidence that he was actually discharged by Westchester. Furthermore, Westchester claims it has not discharged Konewko and points out that his pension benefit proceedings are still pending. Allowing Konewko to pursue his retaliatory discharge claim would require an expansion of the tort. Considering the Illinois courts' consistent refusal to expand the tort to any conduct beyond actual discharge, summary judgment is warranted on Konewko's workers' compensation retaliation claim (Count IV).
CONCLUSION
The motion for summary judgment is granted in part and denied in part. The motion is granted on the federal retaliation claim (Count III) and the workers' compensation retaliation claim (Count IV). The motion is denied in all other respects.