Opinion
Cause No. IP00-0447-C-H/G
September 7, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Carol Roeder resigned from her position as a clerk for defendant Hendricks Community Hospital in May 1999. In this lawsuit she claims that the hospital violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by denying her reasonable accommodations for a disability, by subjecting her to a hostile work environment, and by constructively discharging her. The hospital has moved for summary judgment on all of Roeder's claims. As explained below, the court grants defendant's motion. Assuming that Roeder was a qualified individual with a disability under the ADA, the undisputed facts show that the hospital provided Roeder with reasonable accommodation. On this record, no reasonable jury could conclude either that Roeder was subjected to a work environment so hostile as to be actionable or that her working conditions were so intolerable that she was forced to resign.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). Rather, the proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 2001 WL 869361, *5 (7th Cir. Aug. 2, 2001) (same standard applies to any type of case).
Discussion
For purposes of the hospital's summary judgment motion, the facts set forth in this entry are either undisputed or reflect the record in the light reasonably most favorable to Roeder, the non-moving party. The court provides first some background facts and then addresses the facts most relevant to each ADA claim in the discussion of the respective claims.
In a separate entry today, the court addresses the defendant's motions to 1 strike large portions of the evidence Roeder relies upon to oppose summary judgment.
I. Background Facts
Roeder's Physical Condition: Roeder experienced a forcep-related birth injury that resulted in a stunted right arm and hand. She has limited muscle and nerve function in her right arm and hand. Her right wrist bones are fused so that she has no joint function in the right wrist. Roeder's muscle function in her right arm is so limited that she often uses her left arm and hand to move her right arm. Because of limited nerve function in her right hand and arm, she is subject to increased risk of injury. As Roeder puts it, she functions as if a splint were on her elbow and wrist and her fingers were taped together.Roeder also has an unspecified "lower back condition." According to Roeder and her chiropractor, the back condition is related to her birth injury because that injury causes her to carry herself differently than other people. Roeder has not alleged that her lower back condition requires her to make special efforts to perform any particular task. Nor has she identified anything that she cannot do because of her back problem.
The hospital tried to develop an argument about Roeder's weight being a 2 cause of her back condition, as well as a factor affecting the types of accommodations available to her. She testified generally that she carries "too much weight," see Roeder Dep. at 34, but she refused to answer more specific questions about her weight in her deposition. She also testified that she had problems using a lumbar roll in her chair because she is "not tall and thin" and did not have much "hind end" room in the chair. Id. at 164-65.
The hospital argues that Roeder's refusal to provide more specific information about her weight should preclude her from basing any ADA claim on her back condition because her weight might affect it. See Def. Br. at 10. Without reaching that issue, however, the hospital is entitled to summary judgment for the reasons explained below.
Roeder's Employment: Roeder worked at Hendricks Community Hospital from 1966 until 1969 and again from 1989 until 1999. During at least her last several years at the hospital, she worked full-time as a clerk or associate who was in charge of filing Medicaid-related documents. She also had certain responsibilities for two insurance desks. She occasionally helped the patient account representatives. Roeder Dep. at 37. Roeder was able to do her work; she received good reviews and said she loved her job at the hospital. Id. at 224; 52-53.
Roeder was hired, supervised, and reviewed by Jan Schmitt, director of patient accounts. Roeder and Schmitt are in their fifties and had been friends since high school. Id. at 55. The friendship cooled during the last two or three years of Roeder's employment because of what Roeder has described as "moral disagreements." Id. at 56. (Roeder testified that her primary concern was that Schmitt accepted gifts from the collection agencies she selected for the hospital. Roeder Aff. ¶ 15.) There is substantial evidence that the relationship between these long-time friends became difficult at work. Nevertheless, the two went shopping together as late as February 18, 1999, at a time when Roeder now claims Schmitt was making her employment intolerable.
Roeder's Leave and Resignation: On January 20, 1999, Roeder sent a letter to Schmitt's supervisor requesting a new desk chair that would be more comfortable. Over the next six weeks or so, there were several discussions regarding this request, as well as an evaluation of Roeder's work station and chair and experiments with lumbar rolls. A chair of the type Roeder wanted was brought to her from storage, but it seemed (incorrectly, it later turned out) to be broken. The perceived problems with that chair triggered another meeting on March 15, 1999. Roeder felt those meeting with her were "hostile" "assertive," and said she almost "fell apart" after the meeting. Roeder Aff. ¶¶ 66-68. The next day, Roeder began a two-month medical leave because of stress.
Roeder was released to return to work on May 17, 1999. On May 15th or 16th, before returning to work, she had prepared a resignation letter. On May 17th, Roeder arrived at the hospital between 7:45 and 7:50 a.m. Schmitt walked near Roeder but did not acknowledge her. Schmitt later walked up to Roeder's desk and tossed some papers on her desk in a "hostile" manner. Roeder Aff. ¶ 83. Roeder went to human resources to retrieve her new chair. Roeder Dep. at 80. She began to do her work, but the chair did not feel good or close to what she felt she could tolerate. Id. She did not try to adjust the chair or ask anyone to help her adjust the chair. Roeder was feeling "stressed to max" because Schmitt did not talk to her. Roeder turned in her resignation letter at 8:40 a.m. that same morning.
II. Disability under the ADA
The ADA prohibits discrimination by covered employers against qualified individuals with a disability. Sutton v. United Airlines, Inc., 527 U.S. 471, 475 (1999); Contreras v. Suncast Corp., 237 F.3d 756, 762 (7th Cir. 2001). The statute provides that no employer "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." 42 U.S.C. § 12112(a). Roeder alleges that Hendricks Community Hospital violated the ADA by failing to reasonably accommodate her, by harassing and treating her differently because of her condition, and by engaging in conduct that forced her to resign.
The threshold issue for all of these claims is whether Roeder is a "qualified individual with a disability." See, e.g., EEOC v. Sears, Roebuck Co., 233 F.3d 432, 437 (7th Cir. 2000), citing Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir. 1997). Both Roeder and the hospital agree that Roeder was able to do her job well. The hospital argues that Roeder is not an individual with a disability because the injury to her right arm and hand does not substantially limit her in any major life activity. In relevant part, the ADA defines "disability" as: "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2).
The ADA also defines "disability" as having a record of a disabling impairment or being regarded as having such an impairment. See 42 U.S.C. § 12102(2)(B) (C). Roeder has not alleged that she was covered by these definitions, so the court considers only whether she was actually disabled under § 12102(2)(A).
On this issue, Roeder has come forward with sufficient evidence of the effects the injury has on her daily life to create a fact issue on whether she is disabled under the ADA. Roeder must make, in her words, "special efforts" in caring for herself, in performing some household chores, and in doing tasks at work such as stapling, filing, collating, and sorting documents. Whether these special efforts amount to "substantial impairment" under the ADA requires an individualized inquiry, including consideration of measures taken to correct for or mitigate the effects of an impairment. See Sutton, 527 U.S. at 483.
For purposes of summary judgment, the court assumes that a reasonable trier of fact could find on this record substantial impairment resulting from Roeder's birth injury. See generally Emerson v. Northern States Power, 256 F.3d 506, 511-12 (7th Cir. 2001) (finding genuine issue as to substantial impairment but affirming summary judgment for employer on other grounds; a person is "substantially limited" if compared to the average person in the general population, she cannot perform or is limited in the manner, duration or condition in which she can perform a major life activity).
With respect to the issues relating to Roeder's chair at work, there is a different problem. The closest thing to medical evidence linking Roeder's unspecified back condition to her birth injury to her arm is a conclusory assertion by Roeder's chiropractor. In a document that Roeder gave to the hospital at an unknown time, the chiropractor wrote: "I feel that because of her right arm she needs the support [of an "orthopedic" chair] and is not as physically capable and this compromises her balance and posture." Roeder Aff., Ex. C. There is no evidence that the back condition itself imposes any substantial limitations on any major life activity. Cf. Vande Zande v. Wisconsin Dep't of Administration, 44 F.3d 538, 544 (7th Cir. 1995) (where effects of underlying condition caused plaintiff to miss work, those effects were part of disability under ADA). For purposes of summary judgment, however, the court assumes that Roeder is a qualified individual with a disability.
III. Reasonable Accommodation
Roeder's reasonable accommodation claim fails as a matter of law. Roeder has not come forward with evidence that creates a genuine issue on the reasonableness of the hospital's conduct, and Roeder thwarted the accommodation process by quitting the day she returned from her medical leave.
The ADA requires an employer to make accommodations that are reasonably possible in the circumstances so as to allow a qualified disabled person to perform the functions essential to her position. See Miranda v. Wisconsin Power Light Co., 91 F.3d 1011, 1016 (7th Cir. 2000), citing Vande Zande, 44 F.3d at 542-43. The ADA does not obligate an employer to provide a disabled employee with her preferred form of accommodation. Miranda, 91 F.3d at 1016. In a case under the Rehabilitation Act where the employer had taken several actions that were responsive to the plaintiff's accommodation requests, the court explained:
The fundamental problem with [plaintiff's] theory is his erroneous assumption that "accommodation" means the same things as "a perfect cure for the problem." If this were true, the statutes would require more from employers than reasonable accommodations.
Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir. 1996) (emphasis in original) (affirming summary judgment for employer on reasonable accommodation claim where, among other things, plaintiff alleged he still experienced neck and back pain after employer provided an ergonomic chair); see also Malabara v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998) ("An employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.") (internal quotation marks omitted), citing Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996).
Roeder complains that the hospital failed to accommodate her: (1) by not providing the chair she wanted; (2) by not reassigning some of her manual tasks and finding someone else to work on the recurring accounts; and (3) by not moving a file cabinet in her cubicle. None of these claims can support a finding of liability under the ADA.
In her brief, plaintiff includes many of her disparate treatment and 4 harassment allegations in the discussion of her reasonable accommodation claim. For example, plaintiff argues that Schmitt "refused to offer accommodation" for the fuzzy computer monitor she received when office space was reassigned in January 1999. Roeder eventually got a new monitor, although Schmitt had told Roeder she just needed glasses. This type of allegation has nothing to do with reasonable accommodation where the plaintiff has not alleged a impairment or disability based on her vision. The court considers Roeder's claims that reasonably can be construed as requests for accommodation (i.e., requests for modifications reasonably necessary for Roeder to do her job in light of her claimed disabilities).
The Chair: In light of the absence of any evidence of substantial impairment relating to Roeder's chair, the hospital may not have had any obligation under the ADA with respect to Roeder's request for a new chair. Assuming there was any such duty, however, the hospital fulfilled it.
Roeder and other employees had received new chairs in 1994. Second Schmitt Aff. ¶ 22. Before January 1999, Roeder had asked Schmitt for a different chair — one like Schmitt's, which Roeder had tried and had found more comfortable. There is no evidence that these requests had any significance under the ADA because they were not tied to any substantial impairment. On January 20, 1999, Roeder submitted a written request to the hospital's executive vice president and chief operating officer, Pat Craig:
Unfortunately an impasse has developed within my department and I must ask for your input. What I am asking from you is a clarification of hospital policy. For medical reasons I wish to purchase my own personal back support chair and have been told by my supervisor, Jan Schmitt, this is not permitted.
I have tried unsuccessfully to acquire one of these chairs through requests to Jan. Jan has acknowledged the fact that my current type chair hurts her back (she originally had one) and she procured a back friendly one for her and recently two more for the associates within the department. I am not attempting to make an issue of this request, I simply wish to be treated fairly and with respect.
I've been limiting my association with Jan to a professional level. I have known Jan for many years and have always been a friend. Within the last couple of years I have been distancing myself from her because of what I feel is her desire to keep me as a subservient friend and employee. I believe it is best for the hospital and me to limit our relationship to the work environment. Because of the change in our relationship, I may be receiving unfair treatment.
Please keep the specifics of this letter confidential, I do not wish to offend anyone. I merely wish to remain a good employee and purchase a comfortable chair to sit in while at work.
Def. Ex. 2.
Craig met with Roeder about a week later. Craig told Roeder that there was no guarantee a chair would take care of the problem. Roeder stated that she did not think the chair would cure her lower back but that it could help. See Def. Ex. 37. Roeder told Craig she was willing to buy her own chair, though she did not have a particular one in mind. Roeder Dep. at 159. Craig told Roeder she could not do so according to hospital policy, even though Roeder was willing to sign a waiver of liability.
Roeder then took her request to the hospital's vice president of finance, John Komenda, who met with Roeder and Schmitt in January or February 1999. Komenda offered Roeder the lumbar roll from his chair. Roeder was not satisfied with the result of the meeting. Komenda arranged for a physical therapist to evaluate Roeder's work station. On March 2, 1999, the therapist recommended that Roeder try two or three lumbar rolls, and she recommended lowering Roeder's desk (which apparently was not done). Roeder returned the lumbar roll to the therapist on the morning of March 3rd. According to Roeder, she had problems using the lumbar roll because she didn't have much "hind end room" in the chair because she is not tall or thin. Id. at 164-65. Roeder told the therapist that she did not want to try any other modifications or equipment at that time, and that she would call if she changed her mind. Santiesteban Aff. ¶ 7. Roeder never got back in touch with the therapist.
On March 4th, Schmitt brought Roeder a chair that was nearly identical to the type Roeder had requested. (The only apparent difference was in the color of the arms.) See Roeder Aff. ¶ 60; Lenard Aff. ¶ 6. Lenard and Schmitt had found the chair in the hospital storage area. On March 8th, Roeder called maintenance to examine the chair. She believed the back of the chair was broken, and she returned the chair to the storage area on the morning of March 9th.
On March 15, 1999, Roeder sent a letter to Lenard through inter-office mail because she believed that nothing had come out of her meeting with Komenda and Schmitt. Lenard responded to Roeder that same day. Roeder then met with Lenard and Craig. She indicated that she would be willing to try another lumbar roll. Roeder Dep. at 186.
According to Roeder, Lenard and Craig were defensive during the meeting. Craig's posture, demeanor, and tone of voice were "hostile" and "assertive." Roeder Aff. ¶ 66. The meeting felt like a disciplinary meeting to Roeder, and she almost "fell apart" after the meeting. Schmitt was so hostile to Roeder that day that Roeder became ill and then requested medical leave. Id. at ¶ 68.
Roeder went on medical leave. On March 18, 1999, Lenard called Roeder and told her that the chair she had returned to storage was not broken but just needed adjusting. Lenard told her that the chair would be waiting for her when she returned from leave. Roeder Dep. at 188.
Roeder returned to work on May 17, 1999. She tried the chair that had been retrieved from storage. Roeder testified that the chair did not feel good. She did not try to adjust her chair or ask anyone else to help her adjust the chair, which she described as the "old lumpy chair" with "crummy" arms. Id. at 80, 105, 242. Within an hour after arriving at work, Roeder turned in her resignation letter.
When Roeder was asked to distinguish between Schmitt's chair and the chair she received on May 17th, Roeder noted only that the chairs had different colored arms; there was a slight difference in the curve of the back of the chair; and the arms felt "bulky." Roeder also believed Schmitt's chair was "more work-friendly, much more person-friendly." Id. at 109. These slight differences between Roeder's ideal chair and the chair the hospital provided do not come close to raising a genuine issue of fact as to whether the hospital responded reasonably to Roeder's request for a different chair. No evidence suggests that the chair provided was materially different from the type of chair Roeder requested. Even under the most aggressive interpretation of the ADA as it might apply to Roeder's back condition, the hospital was not required to give Roeder exactly what she demanded.
Changing Assignments: Roeder also contends that the hospital should have accommodated her by having someone else work on recurring accounts and by assigning her different tasks. The undisputed evidence shows that Roeder was in fact able to perform all functions of her job without any of these changes. The court therefore need not address the distinction between essential and peripheral job functions. See Ozlowski v. Henderson, 237 F.3d 837, 841 (7th Cir. 2001). The hospital was not required to consider shifting job responsibilities for someone who was successfully doing her job.
Furniture Arrangements: Roeder and other workers were assigned to new cubicles and office space in January 1999. Roeder said that the new arrangement made it more difficult to perform her job because access to a file cabinet was limited, so that she could not use her strong side. Roeder asked Schmitt to have the file cabinet moved. Schmitt denied the request. Roeder Aff. ¶¶ 29-31. Assuming that the hospital had any duty to accommodate, Roeder has not come forward with evidence showing that moving the file cabinet was reasonably necessary for her to perform the essential functions of her job. In fact, the record evidence tends to show that she always able to get her job done, although perhaps not always as quickly as she or the hospital would have liked.
Terminating the Dialogue: As the hospital points out, even if its accommodation efforts described above might be deemed insufficient, when Roeder resigned, she ended the interactive process for devising reasonable accommodations. The ADA's implementing regulations provide that the employer may need to initiate "an informal, interactive process" with the employee to determine what accommodation is appropriate. 29 C.F.R. § 1630.2(o)(3); Beck v. University of Wisconsin, 75 F.3d 1130, 1135 (7th Cir. 1996). The regulations envision an interactive process that requires participation by both parties: "The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability." 29 C.F.R. pt. 1630, app.; Beck, 75 F.3d at 1135.
If the employer makes reasonable efforts both to communicate with the employee and to provide accommodations based on available information, and if the employee does not participate in the interactive process, the employer is not liable under the ADA. Beck, 75 F.3d at 1135-37 (affirming summary judgment for employer on reasonable accommodation claim where plaintiff refused to provide additional information about her condition to enable employer to evaluate other possible accommodations); accord, Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 738 (5th Cir. 1999) (affirming judgment as a matter of law for defendant where plaintiff quit rather than discuss alternatives after employer had provided some accommodation; "[t]he process broke down because she stayed silent, and quit.").
The undisputed facts show such a breakdown here as a result of Roeder's decision to resign. The hospital had no reason to believe that the chair Lenard had adjusted and had waiting for Roeder would not be acceptable to her. The undisputed evidence shows that it was the same model number as the chairs Schmitt and Komenda had — the chair that Roeder had said she wanted. Even if the chair felt "crummy" and "lumpy" to Roeder that morning of May 17th, there was no reason for Roeder to walk out without discussing other chair options with the hospital. See also Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir. 1999) ("We emphasize that an employee's subjective belief about the futility of initiating the interactive process will not, by itself, relieve him or her of that obligation.").
IV. Hostile Work Environment Disparate Treatment
Roeder also alleges that she was treated differently and subjected to a hostile work environment because of her disability. This claim has become an umbrella for a variety of job-related complaints by Roeder extending over several years. This claim also fails as a matter of law. The court treats Roeder's "disparate treatment" and harassment allegations together. They are best understood as one hostile work environment claim. Roeder has not identified any material adverse employment action against her (apart from her claim for constructive discharge, discussed below).
In Silk v. City of Chicago, 194 F.3d 788, 803 (7th Cir. 1999), the Seventh Circuit assumed (but did not hold) that a hostile work environment claim under the ADA is possible. The Silk court explained that any hostile work environment claim under the ADA would be subject to the same rules that govern such claims under Title VII. Id. at 804. Thus, to establish a hostile work environment based on disability, a plaintiff must show that her work environment was both subjectively and objectively hostile. See id., citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
In determining whether a plaintiff has met this standard, courts 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." Silk, 194 F.3d at 804 (internal quotation marks omitted), citing Harris, 510 U.S. at 23. To amount to 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." Silk, 194 F.3d at 804 (internal quotations marks omitted), citing Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998), quoting in turn Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). The law "does not prohibit all verbal or physical harassment in the workplace." Silk, 194 F.3d at 804, citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).
The Seventh Circuit's sexual harassment cases under Title VII set a high standard for establishing a hostile work environment. See, e.g., Pryor v. Seyfarth, Shaw, Fairweather Geraldson, 212 F.3d 976, 978 (7th Cir. 2000) (affirming summary judgment for employer in relevant part where plaintiff alleged that her boss had asked if he could see pictures of her in suggestive lingerie; stated he preferred to see her in open-toed shoes; and asked her to look at pictures of women in bondage); Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1168 (7th Cir. 1996) (affirming summary judgment for employer where co-worker called plaintiff, with whom he had had a failed relationship, a "sick bitch" numerous times over a four-year period and made an obscene gesture); Baskerville v. Culligan International Co., 50 F.3d 428, 430 (7th Cir. 1995) (affirming summary judgment for employer where supervisor referred to plaintiff as "pretty girl" and made a few isolated off-color comments, but never touched or physically threatened plaintiff or invited her to have sex with him); Saxton v. American Telephone and Telegraph Co., 10 F.3d 526, 528-29, 534 (7th Cir. 1993) (no actionable harassment occurred when supervisor touched and kissed plaintiff in a bar, "lurched" at her while taking a walk in a park, and then refused to speak to her after she rebuked his advances); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (summary judgment for employer upheld when one co-worker asked plaintiff for dates, called plaintiff a "dumb blond," put his hand on her shoulder several times, placed "I love you" signs in her work areas, and attempted to kiss her in a bar).
In Silk, the Seventh Circuit held that plaintiff's allegations of disability discrimination did not satisfy the "severe" or "pervasive" element of her hostile work environment claim as a matter of law. The plaintiff alleged verbal harassment (including being called a "medical abuser" and "limited duty phony"), threats of physical violence, and "administrative harassment" in the form of not receiving choice assignments. 194 F.3d at 796-97. The court concluded that he had not demonstrated that his "workplace was permeated with discriminatory conduct — ridicule, intimidation, insult — that was sufficiently severe or pervasive to alter the conditions of his employment." Id. at 808.
Roeder bases her hostile work environment claim primarily on her allegation that the hospital failed to accommodate her on several occasions, as discussed above. In addition, Roeder alleges other incidents where she was treated poorly, especially by Schmitt. For example, Roeder complains that she was given undesirable work areas; that she was not given a personal computer while others in the department were; that she was not given certain computer training; that Schmitt criticized her for not getting her work done quickly; that she was given a computer terminal with a fuzzy image; and that she was told she would have to bring a doctor's note if she was absent for more than two days.
Roeder also cites an incident in 1996. She had asked to work part-time 5 assisting the hospital pharmacist. Roeder claims that the hospital's controller denied her request after asking if she would be fast enough "one-handed" to be of any value to a pharmacist. Roeder Aff. ¶ 36. After Roeder complained, she approached the controller to explain. According to Roeder, the controller was antagonistic and compared her to a one-legged basketball player. Id. at ¶ 37. Assuming, as the court must, that these thoughtless remarks were made, they occurred far too long ago to be actionable, and they were not tied to any events that occurred within the 300-day period preceding Roeder's EEOC charge filed June 2, 1999.
The court assumes for purposes of summary judgment that Roeder subjectively perceived these events as harassing. Nevertheless, they were not so severe or pervasive as to raise a triable issue of fact on whether Roeder's work environment was objectively hostile. As in Silk, Roeder has not produced evidence sufficient to show that her work environment was permeated with discriminatory conduct.
V. Constructive Discharge
Constructive discharge occurs when an employer, without firing an employee, makes her working conditions so miserable that it drives her to quit. Ulichny v. Merton Community School Dist., 249 F.3d 686, 702 n. 15 (7th Cir. 2001) (Title VII). The Seventh Circuit has not yet decided whether a constructive discharge claim is cognizable under the ADA, but it has provided guidance on how such claims should be analyzed:
A claim of discriminatory constructive discharge would require a plaintiff to demonstrate first that she was constructively discharged — that the employer made the working conditions so intolerable as to force a reasonable person to leave . . . . Once that showing has been made, the plaintiff would have to establish that she was constructively discharged on account of her disability.
EEOC v. Sears, Roebuck Co, 233 F.3d at 440 (citation omitted) (fact issues on disability status did not preclude court from affirming summary judgment on constructive discharge claim); see also Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (to show constructive discharge under Title VII, plaintiff must show that her working conditions were so intolerable as a result of unlawful discrimination that a reasonable person would have been compelled to resign).
Seventh Circuit Title VII cases teach that a plaintiff who claims constructive discharge must, to survive summary judgment, show more than "ordinary" discrimination. Absent "extraordinary conditions," an employee is expected to remain employed while seeking redress. E.g., Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 667 (7th Cir. 2001), citing Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997). A constructive discharge plaintiff must prove that quitting was the only way she could extricate herself from intolerable conditions. Sweeney v. West, 149 F.3d 550, 558 (7th Cir. 1998).
The "extraordinary conditions" sufficient to support a constructive discharge claim require more than some negative job actions. For example, in Harriston v. Chicago Tribune Co., the Seventh Circuit affirmed summary judgment for the employer on plaintiff's constructive discharge claim where she alleged that she was excluded from office activities, was reprimanded, was assigned undesirable sales territories, and was not allowed to supervise two white employees because of race discrimination. 992 F.2d 697, 705 (7th Cir. 1993). The court held that the alleged conditions were not so onerous or demeaning that the plaintiff was compelled to leave her employment.
Similarly, in Rabinovitz v. Pena, the Seventh Circuit held that there was no constructive discharge where the plaintiff alleged that he was subjected to insults and workplace restrictions; received lower performance ratings which resulted in the loss of a bonus; and was refused a schedule accommodation. 89 F.3d 482, 489 (7th Cir. 1996). Even considered together, these incidents would not have compelled a reasonable employee to resign.
In contrast, the Seventh Circuit has held that constructive discharge can occur when an employee reasonably concludes that her job is over or has materially changed for the worse. See Hunt v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000) ("A person who is told repeatedly that he is not wanted, has no future, and can't count on ever getting another raise would not be acting unreasonably if he decided that to remain with this employer would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable."); Parrett v. City of Connersville, 737 F.2d 690, 694 (7th Cir. 1984) (affirming jury verdict finding that a transfer without a reduction in pay was a constructive discharge where the plaintiff, an "ambitious professional," was assigned to a windowless room that formerly had been a storage closet).
In EEOC v. Sears, Roebuck Co., the Seventh Circuit applied these Title VII principles to allegations of disability discrimination and concluded that an employee had not been constructively discharged as a matter of law. The EEOC sued on behalf of an employee who complained that he was denied reasonable accommodations "at every turn." The court concluded that quitting was not the only option available. 233 F.3d at 441. See also Miranda v. Wisconsin Power Light Co., 91 F.3d 1011, 1017-18 (7th Cir. 1996) (affirming summary judgment on ADA hostile work environment/constructive discharge claim where plaintiff complained that employer restricted her communications with co-workers and made conclusory allegations that she was being embarrassed and humiliated because of her physical condition).
Similarly here, Roeder's constructive discharge claim fails as a matter of law. Even when the record evidence is viewed in the light reasonably most favorable to her, she has not even shown "ordinary" discrimination, let alone the extraordinary conditions needed to show constructive discharge. Her underlying claims fail on their merits, so they fall far short of what would be needed to support constructive discharge.
In addition, the timing of Roeder's resignation undermines her claim that her working conditions were intolerable. Roeder resigned less than an hour after she arrived for her first day back at work following her two-month medical leave. She had received the style of chair she requested before her leave. She does not allege that the chair was broken or poorly adjusted upon her return to work. The problem, according to Roeder, was that Schmitt gave her the cold shoulder and the chair felt "crummy." As a matter of law, these allegations do not give rise to a constructive discharge.
The fact that Roeder wrote her resignation letter two days before these events occurred also undermines her claim that they made her feel compelled to resign. In an effort to deflect attention from the resignation letter, Roeder has taken the position that the constructive discharge occurred before she went on leave on March 17, 1999, stating that it occurred "by the time" she met with Craig and Komenda. Roeder Aff. ¶ 85. (Roeder has not pinpointed a date, but according to her testimony, those meetings took place from January to March 1999.) Even if she could get around the fact that an actual separation from employment is essential to any discharge claim (constructive or otherwise), her claim is no more valid under this theory.
According to Roeder, by the time she met with Craig and Komenda, she already found it intolerable to work with Schmitt because Schmitt purposely assigned physically difficult duties to her; treated her coldly; treated her differently from her co-workers in how she socialized with her and responded to her requests; criticized her work; and routinely refused requests for accommodations. If anything, Roeder raises a question about whether she found working under Schmitt's supervision tolerable because of their personal issues stemming from the dissolution of a nearly life-long friendship. Such conflicts are not protected by the ADA under a constructive discharge theory or otherwise. See, e.g., Palmer v. Circuit Court of Cook County, 117 F.3d 351, 352 (7th Cir. 1997) (noting that "a personality conflict with a supervisor or coworker does not establish a disability within the meaning of the disability law, even if it produces anxiety and depression, as such conflicts often do") (citation omitted); Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996) (concluding that plaintiff's claimed "disability," the stress and anxiety caused by her supervisor, is not recognized as a disability under the ADA and that her major life activity of working was not "substantially limited" if she merely cannot work under that particular supervisor).
Conclusion
Plaintiff Carol Roeder's ADA claims are insufficient as a matter of law. The undisputed evidence would not permit a reasonable jury to conclude that Hendricks Community Hospital failed to reasonably accommodate her disability, that she experienced a hostile work environment, or that she was constructively discharged. The court therefore grants summary judgment to defendant. Final judgment for defendant shall be entered.
So ordered.