Opinion
No. 98 C 4438
July 27, 2000
MEMORANDUM OPINION AND ORDER
This unfortunate case arose out of an employee's inexplicable refusal to submit to a tuberculin skin test and her employer's incomprehensible refusal to accept outside medical evidence indicating that she was not infected with tuberculosis. Plaintiff Kimberly Spight ("Spight") filed this action against her former employer, Safer Foundation ("Safer"), alleging that Safer discriminated against her on the basis of her disability, lupus, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). Plaintiff's ADA claim charges Safer with wrongfully terminating her employment based on her lupus and with failing to reasonably accommodate her condition. Now before the court are the parties cross-motions for summary judgment. Defendant contends it is entitled to summary judgment because it has offered a legitimate, non-discriminatory reason for her discharge: that she falsified a company document. In her own motion, Plaintiff argues that Safer terminated her because of her lupus, and that Defendant's proffered non-discriminatory reason is pretextual because the document she altered was not a "Safer document." For the reasons set forth below, the court grants Safer's motion for summary judgment and denies Plaintiff's motion for summary judgment.
Plaintiff's complaint originally contained eight counts. On March 29, 1999 this court dismissed Counts I, II, IV, V, VI, VII, and VII, leaving only Count III, Plaintiff's ADA claim. See Spight v. Safer Found., No. 98 C 4438, 1999 WL 184198, at *1 (N.D. Ill. Mar. 29, 1999). Count I alleged that Safer breached its employment contract with Plaintiff by fabricating a false reason for her termination. Count II alleged that Safer was estopped from terminating Plaintiff because she relied to her detriment on Safer's promise to treat its employees fairly. Count IV alleged that Dan Coughlin and Safer breached Plaintiff's employment contract in bad faith for wrongfully terminating Plaintiff. Count V alleged that Safer terminated Plaintiff in violation of public policy. Count VI alleged that Safer and IDOC intentionally inflicted emotional distress upon Plaintiff by pressuring her to take medical tests and then subsequently firing her. Count VII alleged that Marjorie Brown and Dr. Harry Shuman committed libel and slander against Plaintiff by drafting a memorandum indicating, in part, that it was possible that Plaintiff had TB. Count VIII alleged that Safer, Crossroads, IDOC, Dr. Harry Shuman, Marjorie Brown, and Dan Coughlin deprived Plaintiff of liberty and property interests without due process of law.
The parties filed statements of material fact in accordance with the Northern District of Illinois' Local Rules. The court's local rules have been amended, effective September 1, 1999, replacing Local Rule 12 (M) and 12(N) with Local Rule 56.1. Based on the parties' filings, however, the court will use the old nomenclature for the sake of clarity.
Safer is a nonprofit corporation that performs contract work for the Illinois Department of Corrections ("IDOC"). (Safer Foundation's Rule 12 (M) Statement in Support of its Motion for Summary Judgment (hereinafter "Def.'s 12(M) Statement") ¶ 1.) Specifically, Safer contracted with IDOC to operate Crossroads Community Correction Center ("Crossroads"). ( Id. ¶ 5.) Located in Chicago, Illinois, Crossroads is a minimum security institution designed to provide pre-release housing, social services, and security monitoring to adult inmates with less than two years remaining on their prison sentence to reintegrate into society. ( Id.) The contract requires, in part, that: (1) Safer provide qualified staff, as determined by IDOC rules and directives, to administer the program ( Id. ¶ 10); and (2) Safer and its employees "comply with all applicable fiscal, operational and program policies of the IDOC contained in Administrative Directives, Administrative Rules and applicable memoranda." ( Id. ¶¶ 9, 11; Ex. F., IDOC Contractual Services Agreement, at 2.13(a).) Safer requires that all its employees comply with IDOC "rules, written procedures, bulletins and written or verbal orders." ( Id. ¶ 22; Ex. J, Safer Standards of Conduct § II(E)(1)(d).)
IDOC policies require tuberculosis ("TB") screening for all employees at least once a year. ( Id. ¶ 14; Ex. H, IDOC Administrative Directive 03.02.109 § I.B.2.) The U.S. Department of Health and Human Services ("DHHS") has issued standards regarding the control of TB in correctional facilities which state that "[w]hen a person with suspected or confirmed TB seems to be infectious, close contacts should be skin tested unless they have a documented history of a positive tuberculin skin test result." ( Id. ¶ 13; Ex. G., DHHS "Controlling TB in Correctional Facilities," at 35.) The IDOC follows those standards and requires that the annual TB screening be performed by means of a skin test. ( Id. § 14; Ex. H, IDOC Administrative Directive 03.02. 109 § II.F.2.a.(6).) Beginning in 1991 and in every year subsequent, IDOC required every Safer employee working at Crossroads to take the purified protein derivative ("PPD") TB skin test unless the employee previously had a positive PPD. (Plaintiff's Response to Defendant Safer Foundation's Rule 12(M) Statement and Plaintiff's Rule 12(N) Statement of Additional Material Facts (hereinafter "Pl.'s 12(N) Statement" ¶ 16.) Because persons previously testing positive with a PPD skin test will thereafter always test positive with a PPD skin test, IDOC permitted such employees to submit to a chest x-ray instead. ( Id., Ex. G, Rochelle Portee-White Dep., at 17.) Safer itself does not administer the TB skin testing; Safer's sole role in the testing is to arrange for its employees to be present for the testing. ( Id. ¶ 17-18.)
Rochelle Portee-White was one of Plaintiff's direct supervisors. (Def.'s 12(M); Ex. B, Spight Dep., at 95.)
In July 1985, Safer hired Spight to work at Crossroads. (Def.'s 12(M) Statement ¶ 23.) Spight initially worked as an account technician, but was promoted to the position of Assistant Chief of Security at Crossroads in 1991. ( Id. ¶¶ 23-24.) Pursuant to its policies outlined above, IDOC required Plaintiff to undergo annual TB screenings by skin testing every year from 1991 until 1996. ( Id. ¶ 25.) In April or June 1992, Spight was diagnosed with systemic lupus erythematosus ("lupus"). ( Id. ¶ 27.) Suffering a stroke brought about from complications related to her lupus, Plaintiff was hospitalized and treated with immunosuppressant drugs in 1992. ( Id. ¶ 28; Ex. K, Dr. Bruce Huck Dep., at 10; Plaintiff's Local Rule 12(M) Statement of Facts (hereinafter "Pl.'s 12(M) Statement") ¶ 8.) By September 1992, Plaintiff returned to her position as Assistant Chief of Security at Crossroads, performing all of her work assignments. Notably, despite her illness, Plaintiff underwent annual TB skin testing pursuant to Safer's requirements. (Def.'s 12(M) ¶¶ 25, 29, 30.)
Systemic lupus erythematosus is an auto-immune disease that attacks and impairs the patient's immune system. (Plaintiff's Local Rule 12(M) Statement of Material Facts ¶ 7.)
The record does not make clear exactly when or for how long Plaintiff remained hospitalized from the stroke.
Dr. Huck is Plaintiff's treating physician. (Pl.'s 12(M) ¶ 27.)
It is undisputed that from the time of her diagnosis until October 1996, Defendant considered Plaintiff a "good employee." (Safer Foundation's Rule 12(N) Statement in Support of its Response to Plaintiff's Cross Motion for Summary Judgment (hereinafter "Def.'s 12(N) Statement") ¶ 4.) In fact, Safer named Plaintiff "Employee of the Year" in 1992. (Pl.'s 12(M) Statement ¶ 5.) In early 1993, Plaintiff's lupus went into complete remission and has remained in remission ever since. (Def.'s 12(M) Statement ¶ 31; Ex. K, Dr. Huck Dep., at 18.) As a result of remaining dead brain tissue caused by her 1992 lupus-related stroke, however, Plaintiff did suffer a seizure in March 1996, and was hospitalized for one week. (Pl.'s 12(N) Statement ¶ 31.) Plaintiff's physician permitted her to return to work on a full-time basis and without restriction on May 1, 1996. (Def.'s 12(M) Statement ¶ 36.) According to Plaintiff, upon her return to work in May 1996, her lupus did not preclude her from performing any job assignments. (Spight Dep., at 57.)
IDOC administered its annual TB testing of Crossroads employees during Plaintiff's medical absence in March or April 1996. (Def.'s 12(M) Statement ¶ 33.) Shortly after this test, IDOC and Safer discovered that there had been an outbreak of TB among the residents at Crossroads. ( Id. ¶ 34.) Although the record does not reflect who specifically issued the order, someone at IDOC then mandated that all Safer employees working at Crossroads be re-tested. ( Id. ¶ 35.) Upon Plaintiff's return from medical leave in May 1996, either Milton Wright or Rochelle White, Plaintiff's immediate supervisors, instructed her to submit to the re-testing. ( Id. ¶ 39; Spight Dep., at 95.) Plaintiff responded by refusing to submit to the PPD skin test, telling her supervisors that she had been screened for TB during her recent hospitalization and had evidence that she was TB-free. (Spight Dep., at 94-95.) Plaintiff also contends that she refused to take the skin test pursuant to her doctor's orders. (Pl.'s 12(N) Statement ¶ 41.) On June 18, 1996, upon request from her supervisors that she submit documentation of her recent screening, Plaintiff submitted a copy of a letter to Safer from Dr. Calvin Brown Jr., stating, "TB skin testing is contraindicated . . . Had [negative] chest x-ray March 26, 1996." (Pl's 56(1) Statement ¶ 9; Ex. G.) Plaintiff contends that in August 1996, she submitted to Safer a copy of a letter from Dr. Brown stating in part, "[s]he should under no circumstances receive a TB skin test. Skin testing will be invalidated by her treatment and is of no value in her particular case . . . Ms. Spight has had a recent chest x-ray confirming absence of the disease." (Pl.'s 12(M) Statement ¶ 22; Ex. F.) Plaintiff's supervisors indicated that they had spoken to IDOC personnel who insisted that she take the skin test. (Spight Dep., at 95.) Ultimately, Plaintiff was directed to contact IDOC herself to resolve the issue. ( Id. at 104.)
The court pauses here to note that Safer has moved to strike Plaintiff's Exhibits F and G for lack of a supporting affidavit. The court denies this motion for two reasons. First, the Seventh Circuit has recognized the use of unattested letters as evidence in opposing summary judgment when it is apparent that they can be replaced by proper evidence at trial. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Plaintiff has indicated that she would seek leave to submit the affidavit of Dr. Brown to certify Exhibits F and G, thereby demonstrating that these letters could be presented in an admissible form at trial. Second, the letters at issue do not create a material issue of fact: they do not establish that Plaintiff was medically precluded from taking the TB skin test. This same reasoning applies to Safer's motion to strike three paragraphs of Plaintiff's affidavit. Accordingly, Safer's motion to strike (Doc. 68-1) is denied.
Plaintiff began having direct discussions with Jimmy Ellis, Superintendent of IDOC's Community Correctional Center, and Marjorie Brown, Deputy Director of the IDOC Community Services Department, regarding her refusal to submit to a TB skin test in June of 1996. (Spight Dep., at 114-16.) On August 22, 1996, Ellis issued a directive to Daniel Coughlin, Safer's Vice-President of Operations, demanding that Mr. Ellis either receive results of a TB skin test, or information that Plaintiff took a TB skin test by August 23, 1996. (Def.'s 12(M) Statement ¶¶ 44-45; Ex. M, Memorandum of Jimmy Ellis.) The directive further indicated that Spight should be transferred to Safer's downtown office until resolution of the matter because IDOC could not be assured that Plaintiff was not transmitting TB to staff and inmates at Crossroads. ( Id.) Coughlin faxed Spight a copy of Mr. Ellis' memorandum on August 22, 1996 and advised Plaintiff by phone that if she did not take the TB skin by the following day, she would be transferred to the downtown office. (Def.'s 12(M) Statement ¶ 47; Spight Dep., at 114-16.) Plaintiff spoke with IDOC's Medical Director, Dr. Harry Shuman, later that day, and requested that she be excused from the TB skin test. (Def.'s 12(N) Statement ¶ 46; Spight Dep., at 81-82.) Dr. Shuman denied Plaintiff's request. ( Id.) Plaintiff refused to submit to the TB skin re-test on August 23, 1996. At her deposition, she explained that she refused to submit to the test because her "doctors said it would be contraindicated because it added no particular value to [her] case because [she] had taken the chest x-ray which clearly showed that [she] did not have it." (Def.'s 12(M) Statement ¶¶ 49, 50; Spight Dep., at 116.) It is unclear from the record whether Plaintiff explained this to anyone at Safer at the time of her refusal, although it does appear that she had submitted the letter from Dr. Brown stating that the TB skin test was "contraindicated." The court pauses here to note that Plaintiff (and perhaps also Dr. Brown) appears to understand the term "contraindicated" not in its ordinary sense, as meaning that the test itself could aggravate her condition, but rather meaning that the test would not be reliable, given her use of immuno-suppressive medication. (Spight Aff. ¶ 6 ("It is my understanding that TB skin tests are contraindicated for me because the test can show a false positive as well as a false negative.")); Pl.'s Reply in Support of her Motion for Summ. J, at 3 ("Plaintiff could have TB, show negative on the skin test, yet be infected herself and spreading the disease to others.").) As such, it is undisputed that Plaintiff was physically capable of taking the TB skin test. In fact, Plaintiff's treating physician, Dr. Bruce Huck, testified that a TB skin test would cause her no physical danger "whatsoever," although given her use of certain medication, a skin test would not be very reliable. (Pl.'s 12(N) Statement ¶¶ 42, 43; Huck Dep., at 23.)
Coughlin testified that Safer had no option but to remove Plaintiff from Crossroads and reassign her to the downtown office until the issue could be resolved. (Def.'s 12(m) Statement ¶ 48; Coughlin Dep., at 35.) Coughlin testified that "[IDOC's] insistence was very clear that she be located outside the center." (Coughlin Dep., at 35.) Plaintiff contends that Mr. Ellis' memo to Coughlin did not order Plaintiff's transfer if she refused to submit to the skin test because it stated in part, "I have recommended that Ms. Spight be transferred . . . until such time as this matter is resolved." (Pl.'s 12(N) Statement ¶ 48; Memorandum of Jimmy Ellis.) On August 23, 1996, Plaintiff was involuntarily reassigned to Safer's downtown office. (Pl.'s 56(1) Statement ¶ 29.) Pending resolution of the matter, Plaintiff retained her position as Assistant Chief of Security for Crossroads subsequent to her reassignment despite the fact that the reassignment prevented Plaintiff from performing essential functions of her job. (Pl.'s 12(N) Statement ¶ 52-53.) Based on her transfer, Plaintiff filed a dual charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission alleging that she was being discriminated against by reason of her lupus, on September 4, 1996. (Pl.'s 12(M) Statement ¶ 25.)
On October 2, 1996, Plaintiff submitted to Henrietta Mason, Safer's Director of Human Resources, a copy of a medical report prepared by Dr. Huck indicating, in part, that Plaintiff had a negative TB skin test in September 1996. (Pl.'s 12(N) Statement ¶¶ 64, 65.) Before turning the document over to Mason however, Plaintiff altered the document by obliterating ("whiting out") one sentence, which read: "Ms. Spight had a positive PPD at age 5, and was treated with INH for one year. Since then . . .," and then photocopied the altered version for submission to Safer. ( Id. ¶ 66.) Plaintiff contends that she omitted the sentence because it was based on inaccurate information her doctor had received from Plaintiff's mother. (Pl.'s 12(M) Statement ¶¶ 28, 29; Ex. L.) At the time Plaintiff submitted the document to Safer, Dr. Huck was not aware that Plaintiff had altered it, nor did he give Plaintiff permission to alter it. (Def.'s 12(M) Statement ¶ 67; Dr. Huck Dep., at 28.) Plaintiff claims that upon noticing that the information was inaccurate she attempted to contact Dr. Huck, but was unsuccessful prior to submitting the letter to Henrietta Mason. (Pl.'s 12(N) Statement ¶ 67.) Plaintiff did not disclose to Mason that she had altered the report before its submission ( Id. ¶ 68); apparently just from looking at the document, Mason independently discovered that the report had been altered. (Mason Dep., at 73.) Upon discovering the alteration shortly after its submission, Mason telephoned Dr. Huck's office and obtained a facsimile copy of the original unaltered report which revealed the substance of the omission. ( Id.) On October 8, 1996, Coughlin and Mason summoned Plaintiff to discuss the altered report. (Def.'s 12(M) Statement ¶ 70.)
The record does not explain INH treatment.
At this meeting, Plaintiff admitted altering Dr. Huck's report, but claimed that she deleted the sentence because it was inaccurate (Spight Dep., at 163), whereupon Coughlin notified Plaintiff that she was terminated effective October 8, 1996. (Def.'s 12(M) Statement ¶ 71.) The termination notice stated, in part, "It has come to my attention that you submitted an altered correspondence from your physician to the Safer Foundation. This action . . . is viewed as an act of gross misconduct . . . This conduct demonstrates a breach of trust by a senior security staffer." (Def.'s 12(M) Statement ¶ 72; Ex. Q.) Coughlin testified that in light of Plaintiff's position as second in command of Crossroad's security, he could not tolerate Plaintiff's actions because the trustworthiness of a senior security officer was crucial to the security of Crossroads. (Coughlin Dep., at 76-77.) Coughlin further testified that Plaintiff did not raise the issue of her lupus in response to his decision to terminate her at the October 8, 1996 meeting, and that her lupus condition did not factor in any way his decision to terminate Plaintiff. (Coughlin Dep., at 77.) Plaintiff herself acknowledges that from August 23, 1996 to October 8, 1996, "[her] physical condition was fine" and "there was no limitation to what I could do because of my lupus at that time." (Spight Dep,. at 57, 60.)
Safer's Personnel Policy sets forth Rules of Conduct, any violation of which provides for the possible termination of employment. (Def.'s 12(M) Statement ¶ 73; Safer Personnel Policy and Procedures, at 36.) Safer's Personnel Policy allows for immediate termination without prior notice for actions of "gross misconduct." (Safer Personnel Policy and Procedures, at 36.) Safer's Personnel Policy classifies "falsifying Safer records" as "gross misconduct." ( Id. at 33.) According to Coughlin, Safer classified the altered report as a Safer document because it was submitted to Safer to be relied upon by Safer in resolving the TB skin test dispute with Plaintiff. (Def.'s 12(M) Statement ¶ 74; Coughlin Dep., at 55.) Plaintiff contends the opposite: that the altered report was not a "Safer document" when she altered it because Mason testified that a document becomes a Safer document "when we receive it. (Pl.'s 12 (N) Statement ¶ 74; Mason Dep., at 51.)
On October 9, 1996, Plaintiff submitted to Coughlin a written grievance contesting her termination. (Def.'s 12(M) Statement ¶ 78.) The grievance stated that she did not falsify a Safer document, but merely deleted some incorrect information before she submitted it to Mason. (Pl.'s 12(M) Statement, Ex. L.) Plaintiff requested a grievance hearing and reinstatement based on Mason's failure to secure Plaintiff's authorization to receive her medical information from her doctor. ( Id.) Safer's Personnel Policy allows for grievance procedures in all situations except for conduct classified as "gross misconduct" or where the employee has filed simultaneously a charge of discrimination or lawsuit involving the matter to be grieved. (Def.'s 12(M) Statement ¶¶ 79, 82.) Coughlin advised Plaintiff by correspondence dated October 18, 1996 that Safer denied her request, and that the subject matter of the grievance would be addressed through the proceedings involving her charge of discrimination with the Illinois Department of Human Rights. ( Id. ¶ 81.)
Safer discharged two other employees, Melvin Brown and DeAngelo Finley, the same month as Plaintiff for falsifying Safer records. (Pl.'s 56(1) Statement ¶¶ 40-41.) Specifically, Brown and Finley noted on a Safer document that they took a head count of the IDOC inmates when in fact no count was taken. ( Id.) In April of 1997, Safer terminated Gloria Harvey for gross misconduct also based on falsifying an inmate head count. ( Id. ¶ 42.)
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). It is the movant's burden to establish the lack of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether that burden has been met, the court must examine the evidence and draw all reasonable inferences in favor of the nonmovant, and must resolve factual disputes in the nonmovant "s favor as well. See Thomas Betts Corp. v. Panduit Corp., 138 F.3d 277, 291 (7th Cir. 1998), cert. denied, 525 U.S. 929 (1998). When considering cross-motions for summary judgment, the court considers the motions simultaneously, "extend[ing] to each party the benefit of any factual doubt when considering the other's motion." Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D.Ill. 1992), aff'd 9 F.3d 1198 (7th Cir. 1993). This "Janus-like perspective . . . sometimes forces the denial of both motions," but only where there are material facts in dispute. See id. In employment discrimination cases, the standards for summary judgment are applied with added rigor in light of crucial intent and credibility issues. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995) (quoting Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)). Nevertheless, even where issues of motive and intent are involved, summary judgment may be appropriate if the plaintiff fails to present evidence demonstrating the alleged motive or intent to discriminate. See Cliff v. Board of Sch. Comm'rs, 42 F.3d 403, 409 (7th Cir. 1994).
B. Establishing Liability Under The ADA
Plaintiff alleges that Safer discriminated against her on the basis of her lupus condition in violation of the ADA when it terminated her employment on October 8, 1996. (Compl. ¶ 64.) Plaintiff also alleges that Defendant failed to accommodate her disability in violation of the ADA by refusing to accept alternate medical evidence demonstrating that she was TB free. ( Id. ¶ 63.)
In her complaint, Plaintiff asserted five claims under the ADA: (1) that she was involuntarily reassigned due to her lupus condition (Compl. ¶ 30); (2) that she was involuntarily reassigned due to her perceived TB infection ( Id. ¶ 23); (3) that she was discharged as a result of her lupus condition ( Id. ¶ 64); (4) that she was discharged in retaliation for filing a charge of discrimination ( Id. ¶ 30); and (5) that she was denied a grievance hearing in retaliation for filing a charge of discrimination. ( Id. ¶ 48.) In her motion for summary judgment, and in her opposition to Safer's motion for summary judgment, however, Plaintiff abandons all claims save her claim that Safer wrongfully discharged her on account of her lupus condition based on Safer's alleged failure to accommodate her disability. Indeed, in her response brief, Plaintiff states, "Defendant argues that it is entitled to summary judgment because it did not regard Plaintiff as having a disability. [citation omitted] This argument must fail because it misconstrues the disability that Plaintiff claims is the basis of Defendant's discrimination. Plaintiff is disabled under the ADA because of her lupus . . . not because Safer perceived Plaintiff to be infected with tuberculosis." (Pl.'s Response to Safer Foundation's Motion for Summ. J., at 4.) Later in that brief, Plaintiff writes that Defendant's argument that Plaintiff was not reassigned because of her alleged disability or perceived disability "must fail because it misconstrues Plaintiff's claims. Plaintiff's ADA claim is based on her pretextual firing and Safer's refusal to reasonably accommodate her[.]" ( Id. at 5.) In addition, Plaintiff never responds to Defendant's argument that she was not discharged in retaliation for filing a charge of discrimination. Plaintiff has, thus, waived the retaliation claim. The court therefore need not address the wisdom of Defendant's policy denying access to grievance procedures for employees who have filed a charge of discrimination.
Under the ADA, employers are prohibited from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to . . . the . . . discharge of employees." 42 U.S.C. § 12112 (a). A plaintiff may establish that she was terminated based on her disability in violation of the ADA by using the indirect burden shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Leffel v. Valley Fin. Servs., 113 F.3d 787, 792 (7th Cir. 1997), cert. denied, 522 U.S. 968 (1997). Under this framework, a plaintiff must first establish a prima facie case of discrimination by offering evidence (1) that she is disabled within the meaning of the statute; (2) that her work performance met the employer's legitimate job expectations; (3) that she was terminated; and (4) that the circumstances surrounding her discharge indicate that it is more likely than not that her disability was the reason for her discharge. See id. at 794. If she succeeds in satisfying this burden, the defendant must then articulate a legitimate non-discriminatory reason for the discharge. See id. at 792. Once a non-discriminatory reason is offered, the plaintiff must then establish that the reason is really a pretext for discrimination. See id.
Plaintiff not only alleges disparate treatment resulting in her termination; she also alleges that Safer failed to accommodate her disability. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999) (recognizing that two distinct categories of disability discrimination exist under the ADA). The McDonnell-Douglas burden-shifting approach does not apply to failure to accommodate discrimination claims. See Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1283 (7th Cir. 1996). Rather, to state a claim for reasonable accommodation, a plaintiff must demonstrate (1) that she is disabled; (2) that the employer must have been aware of this disability; (3) that she was "otherwise qualified" for the position; and (4) that the disability caused the adverse employment action. See Foster, 168 F.3d at 1032. A plaintiff must satisfy two requisite factors in order to demonstrate the third element: first, a plaintiff must show that she "satisfies the prerequisites for the position," and second, she must show that she could "perform the essential functions" of the job, either with or without reasonable accommodation. See Bultemeyer, 100 F.3d at 1284. The final element requires a plaintiff to show that the alleged disability was a motivating, or substantial, factor in the decision to terminate. See Foster, 168 F.3d at 1033 (citations omitted). Safer challenges only three issues relevant to the wrongful discharge and failure to accommodate claims, some of which apply to both claims: (1) whether Plaintiff's lupus qualifies her as a member of a protected class — i.e., whether Plaintiff's lupus conditions meets the statutory definition of "disability"; (2) whether a reasonable accommodation was available or even requested by Plaintiff; and (3) the validity of Defendant's non-discriminatory explanation for Plaintiff's discharge. The court discusses each issue in turn.
C. Plaintiff's Disparate Treatment Claim
1. Plaintiff's Alleged Disability
Defendant argues that the fact that Plaintiff's lupus has been in remission since 1993 demonstrates that no reasonable person could find that Plaintiff is disabled as defined by the ADA. (Memorandum in Support of Safer Foundation's Motion for Summary Judgment (hereinafter "Def.'s Memo"), at 10.) Plaintiff, for her part, argues that the Seventh Circuit has already established that lupus constitutes a disability. (Plaintiff's Response to Memorandum in Support of Safer Foundation's Motion for Summary Judgment (hereinafter "Pl.'s Response"), at 3.)
To establish a claim of discrimination under the ADA, either for disparate treatment or for failure to accommodate, a plaintiff must first establish that she is a "disabled" within the meaning of the ADA. See Leffel, 113 F.3d at 794; Foster, 168 F.3d at 1032. The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2); see also Leffel, 113 F.3d at 792. A person is "substantially limited" when she is "either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998); 29 C.F.R. § 1630.2(j)(1)(i), (ii). Federal regulations explain that a "major life activity" is a task such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2 (i). An employee must be "presently — not potentially or hypothetically — substantially limited in order to demonstrate a disability." Sutton v. United Air Lines, 527 U.S. 471, ___, 119 S.Ct 2139, 2146 (1999) (citing Bragdon v. Abbott, 524 U.S. 624 (1998)). The court engages in an individualized inquiry to determine if a person has a disability under the ADA. See Sutton, 527 U.S. at ___, 119 S.Ct. at 2147.
Safer asserts that at the time of her termination, Plaintiff's lupus condition did not limit her ability to perform a major life activity as defined in the statute, and did not affect her ability to perform her job. (Def.'s Memo, at 10.) Safer argues that lupus in and of itself is not considered a disability under the ADA and that its symptoms and/or ramifications can give rise to ADA protection only if those symptoms and ramifications are active and prevent the employee from performing a major life activity. ( Id., at 9.) Defendant further relies on Plaintiff's own testimony that during the period between her reassignment and her termination, "[her] physical condition was fine other than being stressed." and that "[t]here was no limitation to what I could do because of my lupus at that time." (Spight Dep., at 57, 60.)
Although she did not suffer any limitations in her activity at the relevant time, Plaintiff insists that her lupus condition nevertheless qualifies as a "disability." (Pl.'s Response, at 3.) Plaintiff urges this court to adopt a broad reading of the Seventh Circuit's opinion in Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 600 (7th Cir. 1998), where the court recognized the plaintiff's lupus as a "disability" under the ADA. In Haschmann, a woman with lupus filed an ADA claim against her former employer arguing that her illness was the cause of her termination. 151 F.3d at 593. The court concluded that, given the facts of the case, the plaintiff qualified as an "individual with a disability," holding that "often the disabling aspect of a disability is, precisely, an intermittent manifestation of the disability, rather than the underlying impairment." Id. at 600 (citing Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 544 (7th Cir. 1995)). Plaintiff contends that although she is rarely hampered by her disability, one ramification of her lupus is that she could not take the TB skin test demanded by IDOC, and therefore her lupus condition qualifies her as a protected individual under the ADA. (Pl.'s Response, at 4.)
The facts in Haschmann, however, are distinguishable from those presented here. In Haschmann, during the period immediately preceding the plaintiff's discharge, she suffered vision problems and could not adequately perform her job because of "damage to the nerves in her brain and difficulties with her memory and judgment." 151 F.3d at 594. Her condition worsened to the point where her "eye had swelled shut, her face palsied, and her symptoms had mimicked a stroke." Id. In the present case, Plaintiff did not suffer any similar symptoms during the period immediately preceding her termination — to the contrary, her disease was in complete remission. Aside from a seizure only residually related to the disease, Plaintiff has offered no evidence that her lupus ever precluded her from performing a "major life activity."
Furthermore, the record does not support Plaintiff's contention that one underlying manifestation of her disability was that she was unable to take the TB skin test, thereby precluding her from performing the major life activity of working. First, in order to be substantially limited in the major life activity of working, Plaintiff must be precluded from working all security jobs, not just this particular job with Safer. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, ___, 119 S.Ct. 2133, 2138 (1999) (employee was not regarded as substantially limited in major life activity of working by reason of his dismissal for inability to obtain Department of Transportation certification as he remained generally employable in mechanics positions that did not require driving commercial vehicle). Second, by all accounts, a TB skin test was considered "contraindicated" (in Plaintiff's use of that word) only because of the possibility it could result in a false negative. As such, Plaintiff was physically capable of taking the TB skin test, and according to Dr. Huck, a TB skin test would cause her no physical danger whatsoever. In fact, Plaintiff admits that she submitted to IDOC's annual TB skin testing beginning in 1991 and continuing every year until 1996, even though she was diagnosed with lupus in 1992. (Pl.'s 12(N) Statement ¶ 25.) Ultimately, however, the court need not affirmatively decide the issue: both Plaintiff's disparate treatment and failure to accommodate claims fail for other reasons.
2. Pretext
Assuming, without deciding, that Plaintiff is disabled as defined in the ADA, and therefore has established a prima facie case of discrimination, her disparate treatment claim fails because she cannot rebut Safer's legitimate nondiscriminatory reason for terminating her employment. Because Safer has offered a facially nondiscriminatory reason for her firing, Plaintiff has the burden of demonstrating the employer's reason is merely a pretext. See Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997). Satisfying a prima facie case of discrimination, combined with "sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision" may be adequate to support a finding of discrimination. Reeves v. Sanderson Plumbing Prods. Inc., ___ U.S. ___, 120 S.Ct. 2097, 2108 (2000).
To show pretext, a plaintiff generally must present direct evidence that the employer's motivating factor was illegitimate. See Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995) (quoting Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992)). In the absence of direct evidence, however, a plaintiff may avoid summary judgment by presenting a material factual dispute regarding the sincerity of the proffered reason. See id. The onus is on Spight to present evidence from which a rational fact finder could infer that Safer lied about its proffered reason for firing Plaintiff. See Weisbrot v. Medical College of Wis., 79 F.3d 677, 682 (7th Cir. 1996). Moreover, the issue of pretext addresses the honesty, rather than the correctness, of the employer's reasons for its decisions. See McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). Plaintiff contends that her lupus condition motivated Defendant to find an excuse to fire her. Furthermore, Plaintiff contends that Defendant's proffered reason is not valid because the document which she admits altering was not a "Safer document."
a. Lupus Condition
Coughlin testified that Plaintiff's lupus condition did not figure at all into his decision to terminate her employment. Rather, he felt that Plaintiff acted deceptively and dishonestly in altering her medical report — conduct unbecoming for a senior security officer. Plaintiff has presented no evidence whatsoever to rebut this evidence.
Significantly, there is no indication that Safer adversely treated Plaintiff because of her lupus at any time after her diagnosis in 1992, or prior to her termination on October 8, 1996. In fact, Safer named Plaintiff "Employee of the Year" in 1992. It is also undisputed that Safer twice accommodated Plaintiff's need to take medical leave. Until the incident involving her doctor's letter in October 1996, Defendant felt that Spight was qualified for her position despite her lupus. For reasons described earlier, Defendant's insistence that Plaintiff take a skin test does not constitute adverse action: Every Safer employee was required to undergo such a test. Moreover, the court cannot ignore the fact that Spight has not even demonstrated that her lupus precluded her from taking the TB skin test. Indeed, Plaintiff submitted to a TB skin test every year following her lupus diagnosis, apparently without ever raising the possibility that the results would be inaccurate.
b. Safer's Proffered Reason
It is undisputed that the sole reason Defendant gave Plaintiff for her termination was the deceptive falsification of her medical report. (Def.'s 56(1) Statement ¶¶ 71, 72.) Plaintiff insists this reason was pretextual. In order to establish pretext, a plaintiff must "include facts tending to show that the employer's reasons for some negative job action are false, thereby implying (if not actually showing) that the real reason is illegal discrimination." Kariotis, 131 F.3d at 677. There is a "fine line between evidence that appropriately challenges the employer's proffered reasons as being unworthy of credence and evidence that merely shows that the employer made a mistake or a bad business judgment." Shultz v. General Elec. Capital Corp., 37 F.3d 329, 334 (7th Cir. 1994) (quoting Kralman v. Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 156 (7th Cir. 1994), cert. denied, 513 U.S. 948 (1994)).
In this matter, it is clear that Safer's proffered reasons for terminating Plaintiff are legitimate and nondiscriminatory, even if they are mistaken. Safer contends that it terminated Plaintiff because she intentionally altered her physician's medical report without his permission and without advising Safer. Coughlin testified that Safer had to terminate Plaintiff from her position as second in command of security at Crossroads because she could no longer be trusted and the trustworthiness of a senior security officer is crucial to the security of Crossroads. Furthermore, Safer has established that its employment policies provide grounds for immediate termination for falsification of records by employees. In fact, the record indicates that three Safer employees, other than Plaintiff, were also discharged because they falsified records.
Plaintiff admits altering the document and further admits that falsification of "Safer documents" is grounds for immediate dismissal. She argues, however that the document she altered was not a "Safer document" because according to Mason's testimony, a document does not become a company document until it is received by Safer. ( Id., at 10; Pl.'s 56(1)(b) Statement ¶ 74; Ex. M.) Plaintiff argues that because the document was not prepared by Safer, was not addressed to Safer, and altered before it was submitted to Safer, it was not a "Safer document" when she altered it. (Pl.'s Memo, at 9-10.)
Whether this letter in question is a "Safer document," however, is irrelevant in resolving a claim of pretext. The court does not determine pretext by evaluating the correctness of the reasons offered by the employer; rather, the court focuses on whether the employer honestly believed in the reasons proffered for the termination. Kariotis, 131 F.3d at 676 (plaintiff loses "even if the [employer's] reasons are foolish or trivial or baseless"); McCoy, 957 F.2d at 373 (it is improper for the court to sit as a "super personnel department" that reexamines an entity's business decision). As stated by the Seventh Circuit, "arguing about the accuracy of the employer's assessment is a distraction" if that assessment is honestly believed. See Kariotis, 131 F.3d. at 677. Therefore, even if the altered document was not a "Safer document" in some technical sense, Defendant's belief that it was precludes a conclusion that Defendant's proffered reason for firing Plaintiff is pretextual. Because Plaintiff has not produced sufficient evidence for a reasonable factfinder to reject Defendant's nondiscriminatory explanation, Safer is entitled to summary judgment on this theory.
D. Plaintiff's Failure to Accommodate Claim
1. Reasonable Accommodation
Assuming, without deciding, that she is disabled, Plaintiff is still unable to prevail on her failure to accommodate claim because she has not demonstrated that she was entitled to the accommodation requested. The ADA defines "a qualified individual with a disability" as an employee "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). "Reasonable accommodation" is defined as "modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 C.F.R. § 1630.2 (o)(iii); see also Vande Zande, 44 F.3d at 542. Furthermore, a plaintiff must request a reasonable accommodation from the employer. Jovanovic v. In-Sink-Erator Division of Emerson Elec. Co., 201 F.3d 894 (7th Cir. 2000).
Plaintiff argues that Defendant could have accommodated her in a number of ways. She suggests, for example, that Defendant should have (1) intervened with IDOC and explained that Plaintiff was incapable of taking a TB skin test; (2) explained to IDOC that she possessed alternate medical evidence demonstrating that she was TB-free; (3) transferred Plaintiff to a different job assignment; or (4) offered Plaintiff another position within Defendant's corporation. (Plaintiff's Reply in Support of her Cross Motion for Summary Judgment (hereinafter, "Pl's Reply"), at 12.) Defendant challenges each of these suggestions first by suggesting that it could not intervene with IDOC and explain that Plaintiff was incapable of taking the TB skin test, or that there was alternative medical evidence declaring her TB-free because it was bound by IDOC administrative directives requiring TB skin testing for all employees. (Safer Foundation's Memorandum in Opposition to Plaintiff's Cross Motion for Summary Judgment (hereinafter "Def.'s Response"), at 12.) This argument fails, however, for two reasons: (1) because Safer's contractual agreement with IDOC does not relieve Safer of its obligations as an employer under the ADA, see Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir. 1995); and (2) because once an employee has informed her employer of a disability, the ADA obligates the employer to engage in an "interactive process" with the employee to determine the appropriate accommodation. See Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000). Defendant also argues that, as a matter of law, it was not required to transfer Plaintiff to another position or offer her a new position because she did not request such accommodation. (Reply Memorandum in Support of Safer Foundation's Motion for Summary Judgment (hereinafter "Def.'s Reply"), at 6.) Again, this argument is of no avail to Safer who, as required by the ADA, had an obligation to seek Plaintiff out and work with her to craft a reasonable accommodation. See id.
Safer arguably did accommodate Plaintiff by transferring her to Safer's downtown office while still allowing her to retain her position as Assistant Chief of Security. Neither party, however, addresses this issue in their briefs.
In the court's view, however, the real problem arises because the essential core of Plaintiff's accommodation theory is that Safer should have accommodated her as she now suggests because she was incapable of taking the TB skin test. The record simply does not support Plaintiff's version of the facts; by all accounts Plaintiff's lupus did not preclude her from taking a TB skin test. Obviously, if a skin test were truly contraindicated in the traditional sense — meaning that it would pose a health threat to Plaintiff — there is no question that Safer would be obligated to reasonably accommodate Plaintiff's inability to submit to a skin test. That is not the situation here; to the contrary, Plaintiff's doctor testified that a TB skin zest would pose no threat of harm to her whatsoever. Furthermore, Plaintiff admits to having submitted to annual TB skin testing beginning in 1991 and continuing every year until 1996, even though she was diagnosed with lupus in 1992. Here, Plaintiff is not so much demanding that Defendant accommodate her disability, as she is demanding that Defendant accommodate her inexplicable refusal to take the TB skin test. In the court's view, Defendant was under no obligation to accommodate Plaintiff's requests, because they are not related to her illness. In sum, Plaintiff's lupus did not preclude her from taking a TB skin test, and therefore Defendant had no duty to grant her request not to take a TB skin test.
The court feels compelled to note further, however, that it can perceive of no reason why either the IDOC or Safer would insist that Plaintiff submit to a skin test in the face of medical evidence that a skin test could likely result in a false negative on a person taking the medications prescribed for Plaintiff.
CONCLUSION
For the reasons set forth above, Plaintiff's motion for summary judgment (Doc. 59-1) is denied and Safer's motion for summary judgment (Doc. 62-1) is granted.