Opinion
Case No. 98 C 1198.
February 29, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Annie Lusk ("Lusk") brought suit against her former employer, Christ Hospital Medical Center, ("Christ"), alleging failure to accommodate her disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq (ADA). Christ now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the court grants Christ's motion.
Background
Plaintiff Annie Lusk ("Lusk") is a Licensed Practical Nurse ("LPN") who worked for Christ, from 1979-1986, and from 1988-1996. (Def.'s 12(M) Stmt. ¶ 1; Pl.'s 12(N) Stmt. ¶ 2.) From 1988 to 1994, Lusk worked as an LPN in Christ's Obstetrics/Gynecology ("OB/Gyn") department. (Def.'s 12(M) Stmt. ¶ 3; Pl.'s 12(N) Stmt. ¶ 2.) During her time in the OB/Gyn department, Lusk was disciplined for performance and attendance problems. (Def.'s 12(M) Stmt. ¶ 4.) In late 1994, Lusk voluntarily applied for a transfer to Christ's Occupational Health ("OH") department. (Def.'s 12(M) Stmt. ¶ 5; Pl.'s 12(N) Stmt. ¶ 5.) In February 1995, Lusk's transfer was accepted and she began working in the OH department assisting Christ's employees and job applicants. (Def.'s 12(M) Stmt. ¶ 5.) Lusk claims that she was never given a formal orientation to the OH department. (Pl.'s 12(N) Stmt. ¶ 5.) However, she admits that she interacted and communicated with her supervisors on a daily basis. (Def.'s 12(M) Resp. Stmt. ¶ 5.) Lusk's duties in the OH department consisted of performing drug screenings and physical examinations, administering immunizations and vaccinations, filing and completing medical charts and forms, scheduling appointments, and taking quality control measures. (Def.'s 12(M) Stmt. ¶ 6.)
Lusk's supervisors experienced problems with Lusk's performance very soon after her transfer into the department. (Def.'s 12(M) Stmt. ¶ 8.) Tina Hardwick ("Hardwick"), Clinical Coordinator of the OH department, and Lusk's immediate supervisor, discussed with Lusk her deficiencies and documented these problems, beginning in May 1995. (Def.'s 12(M) Stmt. ¶ 8). Lusk's performance problems continued, resulting in her receipt of a Level II disciplinary warning on June 23 1995. (Def.'s 12 (M) Stmt. ¶ 9.) Following this warning, Hardwick informed Lusk that she was still making errors and not executing her daily responsibilities. (Def.'s 12(M) Stmt. ¶ 10.) Subsequently, on August 8, 1995, Lusk was issued a Level III disciplinary warning, as well as a memorandum detailing her daily responsibilities. (Def.'s 12(M) Stmt. ¶ 10-11.)
Christ has three levels of discipline: Level I, Level II and Level III (final warning). With Level III being the most serious and the last step before termination. (Def.'s 12(M) Stmt. ¶ 4).
After learning she would need a hysterectomy to remove fibroid tumors, Lusk took a medical leave of absence from August 14 to September 25, 1995. (Pl.'s 12(N) Stmt. ¶ 9.) Lusk returned to work in October, and in November 1995, she was diagnosed with depression. Lusk's diagnosis was determined through Christ's employee assistance screening process, called the "Hope Program," and she was subsequently put on anti-depressant medication. (Pl.'s 12(N) Stmt. ¶ 9.) Lusk, however, did not inform her supervisors formally that she had been diagnosed with depression until April 1, 1996, when she was suspended.
Also in November 1995, Lusk discovered that she had breast cancer. As a result, she took another medical leave of absence from January 5 to February 19, 1996. (Pl.'s 12(N) Stmt. ¶ 9.) Lusk returned to work in late February. However, upon returning, she did not submit any doctor's notes regarding limitations in her ability to work, nor did she request an accommodation for her disability or any other medical problems, including her depression. (Def.'s 12(M) Stmt. ¶ 17.)
Lusk's supervisors continued to note deficiencies in Lusk's performance, even after she received a Level III warning in August 1995. On December 5, 1995, Hardwick noted that Lusk made an error in processing paperwork. In March 1996, Lusk made additional errors in processing medical records and paperwork, and gave an employee an additional vaccination without first checking his medical chart. (Def.'s 12(M) Stmt. ¶ 12.) Following these incidents, Lusk was placed on an indefinite suspension, pending further investigation, with possible termination. (Def.'s 12(M) Stmt. ¶ 13.)
In accordance with company policy, on April 1, 1996, Lusk met with her immediate supervisors, Hardwick, and Jan Kois, as well as Human Resource Specialist Bob Whalen, to discuss the suspension. (Def.'s 12(M) Stmt. ¶ 13, Pl.'s 12(N) Stmt. ¶ 8.) At this meeting, Lusk was presented with a memorandum detailing her performance problems and the mistakes her supervisors noted that she made. Lusk denied responsibility for any of the mistakes, (Def.'s 12(M) Stmt. ¶ 13, Pl.'s 12(N) Stmt. ¶ 8.) and stated that she felt, "her orientation or her period given her was not long enough to learn the skills necessary." (Def.'s Resp. to 12(N)(3)(a) Stmt. ¶ 17, Pl.'s 12(N) Stmt. ¶ 12.) Kois responded that Lusk had "enough or ample time to learn those skills," as her orientation period had already been extended on one occasion and that Lusk had routinely interacted with Hardwick and Kois in reference to her job duties. (Def.'s Resp. to 12 (N)(3)(b) Stmt. ¶ 5, Def.'s Resp. to 12(N)(3)(a) Stmt. ¶ 17.)
After the meeting, Hardwick decided conducted a further investigation into Lusk's performance problems. She subsequently discovered numerous other mistakes Lusk made in completing drug screening procedures and in filling out the Hepatitis B log book, as well other paperwork mistakes. (Def.'s 12(M) Stmt. ¶ 14.) Based on this additional discovery, Kois and Whalen decided to terminate Lusk permanently due to poor work performance. They informed her of such in writing on April 2, 1996. (Def.'s 12(M) Stmt. ¶ 14.)
On April 16, 1996, Lusk filed a grievance claiming that she was unjustly terminated due in that: (1) she never received a performance review, (2) she suffered a hysterectomy, breast cancer and mental depression, and (3) there existed a conspiracy to get rid of her. (Def's 12(M) Stmt. ¶ 15; Pl.'s 12(N) Stmt. ¶ 13.) Hardwick and Lusk met shortly after the filing of the grievance to discuss the matter. Lusk's grievance was ultimately denied. (Def.'s 12(M) Stmt. ¶ 15.) In late February 1998, Lusk filed a complaint with this court. Having completed discovery, defendant now presents its motion for summary judgment.
Analysis
Defendant moves the court to enter summary judgment on its behalf under Rule 56 of the Federal Rules of Civil Procedure. The court will render summary judgment only if the factual record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 173 (7th Cir. 1996) (quoting Fed.R.Civ.P. 56(c)). The court will not render summary judgment if "a reasonable jury could return a verdict for the non-moving party." Sullivan v. Cox, 78 F.3d 322, 325 (7th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, the court views the facts in the light most favorable to the non-moving party. Bratton, 77 F.3d at 171; Sullivan, 78 F.3d at 325. On a motion for summary judgment, the moving party "bears the initial burden of showing that no genuine issue of material fact exists." Hudson Ins. Co. v. City of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Then the burden shifts to the non-moving party, which "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995), cert. denied, 115 S.Ct. 2249 (1995).
These burdens are reflected in Rule 56.1 of the Local General Rules for the Northern District of Illinois. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). Under Rule 56.1(a), the moving party must submit a statement of material facts in the form of short numbered paragraphs supported by specific references to the factual record. Under Rule 56.1 (b), the non-moving party must submit a response to each such paragraph, including (in the case of disagreement) specific references to the factual record. If the non-moving party fails to disagree with a fact in the moving party's statement, the court will deem that fact admitted. See Local Rule 56.1(b). Similarly, if the non-moving party disagrees with a fact in the moving party's statement, but fails to support its disagreement with a specific reference to the factual record, the court may deem that fact admitted as well. Fed.R.Civ.P. 56(e); Flaherty v. Gas Research Institute, 31 F.3d 451, 453 (7th Cir. 1994).
The United States District Court for the Northern District of Illinois recently adopted new rules concerning motions for summary judgment and renumbered the rules to reflect the Federal Rules of Civil Procedure. The substance and effect of the rules remain the same. See Local Rule 56.1.
Rule 56.1(b) further instructs the non-moving party to submit a statement of any additional facts requiring denial of summary judgment, in the form of short numbered paragraphs supported by specific references to the factual record. In turn, Rule 56.1(a) instructs the moving party to submit a concise reply to any such additional facts, including (in the case of disagreement) specific references to the factual record.
The court reminds the parties of the necessity and importance of complying with the local rules pertaining to motions for summary judgment. The Seventh Circuit has made clear "`the exacting obligation [local] rules impose on a party contesting summary judgment'." Little v. Cox's Supermarket, 71 F.3d 637, 641 (7th Cir. 1995) (citations omitted). Local rules 56.1(a) and (b), like their predecessors 12(M) and 12(N), are designed to "inform the court of the evidence and arguments in an organized way — thus facilitating its judgment of the necessity for trial." Id. These rules clearly and specifically put the moving and non-moving parties on notice as to the required material each party must present to the court.
Lusk claims that Christ discriminated against her on the basis of her disability, in violation of the Americans with Disabilities Act ("ADA"). The materiality of a disputed fact depends on the relevant substantive law — in this case the ADA, 42 U.S.C. § 12101 et seq. See Anderson, 477 U.S. at 248;Sullivan, 78 F.3d at 325. The ADA aims to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101 (b)(1) (1994).
The ADA states that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." Id. It further states that, discrimination includes:
(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
(B) or denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;42 U.S.C. § 12112.
Under the ADA, two categories of disability discrimination claims exist: failure to accommodate and disparate treatment. See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir. 1997). Initially, defendant treats Lusk's claim as one of both disparate treatment and failure to accommodate her disability. Lusk however notes that her "claim is properly characterized as discrimination from a failure to reasonably accommodate." (Pl.'s Mem. at 6.) It is well-settled that "a failure to accommodate claim is separate and distinct from a claim of discriminatory treatment under the ADA." Green v. National Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir. 1999). A review of the complaint shows that Lusk indicated she was bringing a failure to accommodate claim, and in deference to Lusk's characterization of her own claim, the court will treat her claim as a one for failure to accommodate her disability, rather than disparate treatment. The resulting analysis is therefore restricted to the law and facts which pertain to such a claim.
To state a prima facie case of "failure to accommodate" disability discrimination, a plaintiff who has suffered an adverse employment action must show that: (1) she was or is disabled; (2) defendant was aware of her disability; (3) she was otherwise qualified for her job; and (4) the disability caused the adverse employment action (a factor which is implied if not stated). See Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1284 (7th Cir. 1996); Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996); and 42 U.S.C. § 12112 (a).
Here, defendants maintain that Lusk cannot show that (1) she was disabled; (2) Christ knew about her disability; (3) she was otherwise qualified; (4) or that it was the disability that caused the adverse employment action. Lusk maintains that her disabilities, breast cancer and clinical depression, were known to her supervisors, that she was otherwise qualified and that it was her disability which caused her termination. She also contends that Christ failed to accommodate her request for additional time to obtain training and orientation.
I. Disability
Defendant argues, among other things, that the facts do not show that Lusk suffers from a disability as required by the ADA. Under the ADA, Lusk has the burden of establishing the existence of her disability. See Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). The ADA considers a person disabled if she: (1) has a physical or mental impairment which substantially limits one or more of the major life activities (actual disability); (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102 (2); 29 C.F.R. § 1630.2 (g); Roth, 57 F.3d at 1454.
Lusk proceeds under the theory that she has both a physical and mental impairment which substantially limits her ability to work; a recognized major life activity. See 29 C.F.R. § 1613.702 (c); Roth, 57 F.3d at 1454. Therefore, to defeat summary judgment, Lusk must present sufficient evidence to show (1) that she had a physical or mental impairment and (2) that her impairment substantially limited her ability to work. See 42 U.S.C. § 12102 (2)(A). Here, the principal question is whether Lusk's claimed disabilities, breast cancer and depression, substantially limited her ability to work.
The ADA defines a physical or mental impairment as (1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. See 29 C.F.R. § 1630.2 (h); Byrne v. Board of Educ., 979 F.2d 560, 563 (7th Cir. 1991). Neither party takes issue with Lusk's claim that breast cancer and clinical depression qualify as an ADA recognized disability. However, the court notes that if in fact Lusk is able to demonstrate that she is clinically depressed, but she is on medication which mitigates this impairment, under a recent Supreme Court ruling, she may not be considered disabled.See Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2146 (1999) ("A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently `substantially limits' a major life activity.").
The facts Lusk presents fail to demonstrate that her impairment substantially limits any major life activity. Her argument fails on two levels. First, she has not presented enough evidence to suggest that it was her breast cancer and depression that impacted her performance as an LPN. Second, even if she could show that the impairments limited her ability to work as an LPN in the OH department, Lusk has not presented evidence that her impairments limit her ability to work generally.
Lusk presents no evidence and little argument to support a finding that her depression or breast cancer precluded her from carrying out duties as an LPN or service provider. In her brief, Lusk simply states that her, "impairments limited a major life activity, that is her ability to work as an LPN at the performance level she had achieved for the fourteen years prior to the onset of her disabilities." (Pl.'s Resp. to 12(M)Stmt. ** 7). However, beyond this bare assertion, Lusk produces scant evidence of how her impairment limits her ability to work. This is insufficient to defeat summary judgment. To receive protection from the ADA, an individual must demonstrate a significant restriction "in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." 29 C.F.R. § 1630.2 (j)(3)(i).
According to the Appendix to the regulations relating to the ADA: The terms "number and types of job" and "number and types of other jobs," as used in the factors discussed above, are not intended to require an onerous evidentiary showing. Rather, the terms, only require the presentation of evidence of general employment demographics and/or of recognized occupational classification that indicate the approximate number of jobs (e.g., "few," "many," "most,") from which an individual would be excluded because of an impairment. See 29 C.F.R. Pt. 1630, App. § 1630.2(j).
Lusk does not argue that she was unable to perform her duties as an LPN, or that she was unable to handle the responsibilities of working in service industry. Instead, she maintains that "the time she was able to be `at work' was constrained by her disabilities" and that she was not able to perform as well as she had prior to her cancer and depression. (Pl.'s Mem. at 7.) Lusk simply provides no insight into what activities she can and cannot perform in light of her disability. As such, without more evidence, the court cannot conclude that her disabilities substantially limited her ability to work as an LPN at Christ.
In addition, Lusk has set forth no evidence that her disabilities precluded her from getting a similar job within the healthcare industry. In her deposition, Lusk states that after being terminated from Christ, she was employed at a home health care agency and has also applied for two LPN positions at area hospitals. (Lusk's Dep. 98-101). "Working" under the ADA "does not mean working at a particular job, for a particular employer or a narrow range of jobs." Roth, 57 F.3d at 1454-55; Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994), 29 C.F.R. § 1630.2 (j)(3)(i). Rather, plaintiff's impairment must substantially limit employment generally. See Homeyer v. Stanley Tulchin Assoc., 91 F.3d 959, 961 (7th Cir. 1996) (citation omitted).
To determine whether a plaintiff's disability has substantially limited her ability to work generally, courts frequently consider: (1) the geographical area to which plaintiff has reasonable access and (2) the job from which the individual's impairment disqualified her and the number and types of jobs utilizing (and those not utilizing) similar training, knowledge, skills, or abilities, within that geographical area, from which the individual's impairment also disqualified her. See 29 C.F.R. § 1630.2 (j)(3)(iii). The fact that Lusk was able to obtain similar work at a home health care agency belies her claim that her disability limited her ability to work. See Harrington v. Rice Lake Weighing Sys., Inc., 122 F.3d 456, 460 (7th Cir. 1997) (An inability to perform one particular job, a portion of one particular job for a single employer, or increased discomfort while performing a major life activity does not constitute a substantial limitation). Furthermore, Lusk provides the court no facts allowing the court to compare her ability to perform her duties to that of an average person with comparable training, skill and abilities. See Bolton, 36 F.3d at 944 (granting summary judgment where plaintiff did not produce evidence regarding these factors).
At no point does Lusk identify how her ability to work was impaired by her medical problems. In fact, Lusk reported that she believes her job performance was satisfactory. She notes, "I believe my job performance was fine. I believe that I was going through my medical problems, and for a job to like fire me. . . . [T]he suspension I felt was adequate enough, not the termination of my job." (Lusk Dep. at 86, Pl.'s Ex. 1.) Having failed to raise a genuine issue as to whether her impairments limited her ability to work, either as an LPN at Christ or as a health care provider generally, the court must conclude that Lusk cannot show she is disabled under the ADA.
II. Christ's knowledge of Disability
Assuming arguendo, that Lusk could create a genuine issue that she was disabled, her claim must still fail. Lusk has not presented sufficient facts to show that Christ was aware of her disability, as required to sustain a failure to accommodate claim under the ADA. Although Lusk informed her superiors that she had been diagnosed with breast cancer, she did not report her diagnosis of clinical depression until the day she was given an indefinite suspension. Lusk does not dispute that she never informed Christ that she felt she had a disability. Instead she points to a number of events suggesting that Christ should have known her disability existed. For example; (1) she had taken substantial medical leave; (2) when she returned, she spoke frequently about problems at home and health problems; (3) the quality of her work diminished; (4) Christ delayed her annual evaluation because her supervisors "recognized Lusk was facing substantial emotional difficulties." (Pl.'s Mem. at 9.)
Lusk provides little information to establish a link between her declining performance at work and either of her impairments, breast cancer or depression. However, a review of the evidence and the memoranda suggest she believes her clinical depression was the principal cause of her troubles. She writes "such changes [in her performance] and requests are indicative of substantial health problems that anyone, but particularly professionally educated medical personnel, would recognize as causes and symptoms of depression. Furthermore, Lusk specifically told her supervisors about her depression at the April 1 meeting." (Pl.'s Mem. at 9.)
The Seventh Circuit has held that without actual notice of a plaintiff's disability, defendants cannot be held liable under the ADA. "Allowing liability when an employer indisputably had no knowledge of the disability, but knew of the disability's effects, far removed from the disability itself and with no obvious link to the disability, would create an enormous sphere of potential liability." Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 934 (7th Cir. 1995). Like the plaintiff in Hedberg, Lusk asks the court to infer that defendant knew of her disability and its concomitant impact on her ability to work, because her supervisors knew she had medical problems. Contending that the ADA did not require actual knowledge of his disability on the defendant's part, Hedburg argued that since he was terminated because of perceived tardiness and laziness, which was actually fatigue and other symptoms of his illness, the defendant should have been held liable. The Seventh Circuit rejected this line of reasoning:
The ADA hardly requires that merely because some perceived tardiness and laziness is rooted in disability, an employer who has not been informed of the disability, and who has no reason to know of the disability, is bound to retain all apparently tardy and lazy employees on the chance that they may have a disability that causes their behavior. The ADA does not require clairvoyance. Of course, if an employee tells his employer that he has a disability, the employer then knows of the disability, and the ADA's further requirements bind the employer.Id.
Other courts applying Hedburg to cases in which plaintiff's claimed disability was clinical depression agree. See Dikcis v. Nalco Chemical Co., 974 F. Supp. 669, 674 (N.D. III. 1997) (granting summary judgment where plaintiff admitted that he failed to inform anyone at work that he had been diagnosed with clinical depression or that he suffered from symptoms of any illness). Lusk admits that she failed to tell Christ supervisors about her clinical depression until she was faced with suspension. After returning from medical leave, she never informed supervisors of any restrictions or special accommodations she needed or gave them any reason to believe she would be unable to perform her duties satisfactorily. Additionally, Lusk's problems at work were not so obvious as to serve as indicators of clinical depression or the effects of breast cancer. Finally, the fact that Lusk's supervisors are medical professionals does not place any additional burden on them to recognize an employee's disability without actual notice. As the Dikcis court wrote, "mere knowledge of alleged symptoms or effects of a disability alone is insufficient to establish knowledge of disability." Id. at 675.
"Where there is no real issue that an employer who fired a disabled employee knew nothing of the disability, summary judgment in favor of the employee is appropriate." Hedburg, 47 F.3d at 934. This is the case here. Therefore, the court concludes that Christ did not have actual knowledge of Lusk's disability as required for liability under the ADA. See Adkins v. Briggs Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998).
III. Disability Caused Termination
Having concluded that Lusk can neither show that she was disabled nor that Christ was aware of her alleged disability, the court will briefly address the final reason Lusk's claim fails.
Although not always stated expressly, to prevail on an ADA failure to accommodate claim, plaintiff must show present evidence that it was the disability and not some other reason that caused the challenged adverse employment action. "An employee cannot state a cause of action for disability discrimination where his employer terminated him for reasons unrelated to (i.e., not because) of his disability. Accordingly, to state a prima facie case of disability discrimination for failure to accommodate the disability, a plaintiff must demonstrate all four of the elements . . . including the claim that she was discharged because of her disability." See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032-33 (7th Cir. 1999) (citations omitted).
Christ claims that it terminated Lusk because of her poor performance record, not her disability. A review of the evidence supports defendant's argument. In Dikcis, the court granted summary judgment despite plaintiff's prior satisfactory evaluations and in light of documented errors by plaintiff at work. Dikcis, 974 F. Supp. at 676. Like the plaintiff in Dikcis, Lusk has not presented sufficient evidence to show that she would not have been terminated but for her disability. In fact, Lusk's performance problems were well documented.
To be actionable, plaintiff must show that her disability was a substantial factor motivating her termination. "The impermissible consideration must contribute to the adverse employment decision in some substantial way." Foster, 168 F.3d at 1033 (citing Owen v. Thermatool Corp., 155 F.3d 137, 139 (2nd Cir. 1998). Lusk points to no evidence that Christ's decision to terminate her was rooted in anything but legitimate concerns about her work performance. Lusk does not dispute that Christ noted deficiencies in her performance both before and after her transfer to the OH Department. Further, she received both a Level II and Level III disciplinary warning for performance problems, even before she was diagnosed with depression or breast cancer. Her employers chronicled additional missteps she'd made in December 1995 and March 1996. As such, the court concludes that, on the evidence presented, Lusk cannot show that Christ fired her on account of her disability.
Having found that Lusk has not met her burden to show that she is disabled as defined by the ADA, that Christ was aware of her alleged disability, and that Christ terminated her because of her disability, the court grants defendant's motion for summary judgment.
Conclusion
Accordingly, for the reasons set forth above, the court grants defendant's motion for summary judgment [15-1].