Opinion
No. 99 C 50029
February 2, 2001
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Patricia Stroup ("Stroup") has filed a five-count amended complaint against J.L. Clark, a division of Clarcor, Inc., based on the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Per order dated June 28, 1999, the court dismissed Counts II (an ADEA disparate impact claim), IV and ¶ 12 of Count V (Title VII and ADA disparate impact claims). Counts I (an ADEA disparate treatment claim), III (a Title VII disparate treatment claim) and the remainder of Count V (an ADA disparate treatment claim) are the subject of J.L. Clark's pending motion for summary judgment, filed pursuant to Fed.R.Civ.P. 56. The court has jurisdiction pursuant to 28 U.S.C. § 1331 and venue is proper under 28 U.S.C. § 1391 (b),(c).
Background Facts
Stroup (d/o/b June 29, 1940) was hired at J.L. Clark's Rockford facility in 1961 as a machine operator, an hourly, entry-level position. (LR56.1(a) ¶ 2) From 1981 until the time of her termination, Stroup held the position of Inspection Supervisor, a salaried position in the Inspection Department. (Id. ¶ 3) In that job, Stroup made sure the decorative tin containers and flat sheets of tin J.L. Clark manufactured were being produced within specifications and to customers' satisfaction. (id.) She supervised three other inspectors, two of whom worked on the first shift (as did Stroup) and one of whom worked on the second shift. From 1931 until 1990, Stroup reported to Karl Koonman, the Director of Quality Control. Thereafter, she reported to Paul Haeflinger, who assumed Koonman's position upon his retirement. Haeflinger reported to the Plant Manager, Ewald Oppman.
On or about May 22, 1995, Stroup complained to Oppman that she was under a lot of stress because her workload had become too great and she would have to resign if something was not done to alleviate her stress. (Id. ¶ 14) Oppman asked Stroup not to resign and said he would talk to Haeflinger and "get it straightened out." (Id. ¶ 15) After speaking with Haeflinger, however, Oppman determined that nothing was "out of line." (Id. ¶ 16) Plant Operations Manager Peter Costello also asked Stroup not to resign and suggested that she talk to the Personnel Office about taking a few days off, (Id. ¶ 17) Costello also told Stroup that if it were up to him (apparently it was not), he would fire Haeflinger because he never did his job. (Def. Exh. A, Stroup dep., p. 55)
On or about May 30, 1995, Stroup was asked to prepare a list of her duties. She did, and gave the list to Costello and Haeflinger, who said they would read it and get back to her the next day. (LR56.1(a) ¶ 18) The following morning, Haeflinger tried to talk to Stroup about her list. The conversation did not go well. According to Stroup, Haeflinger chased her through the Shear Department, screaming at her about why she complained to Costello and Oppman rather than him. (Id. ¶ 19) Later that day, Stroup met with the Director of Human Resources, Rhonda Flumes, and said she wanted to take a leave of absence. Hines told Stroup she could not take a leave of absence but, rather, had to use her vacation time, and called Stroup a crybaby. (Def. Exh. A, Stroup dep., p. 65)
The next day (June 1, 1995), Stroup brought a note from her physician, Dr. Melinda Carter, which stated Stroup needed a medical leave of absence due to work stress, and that Dr. Carter would see her in two to three weeks to reevaluate her ability to return to work. (LR56.1(a) ¶ 21) J.L. Clark approved a leave of absence through June 19, 1995. (Id. ¶ 22) On June 20, 1995, Stroup brought another note from Dr. Carter, stating she needed another two weeks off, and J.L. Clark extended Stroup's leave of absence. (Id. ¶ 23) On or about June 29, 1995, Stroup gave the company another letter from Dr. Carter, in which she stated Stroup should remain off work "until she can arrange with her employers to get the job stress that she is experiencing reduced at work." (Id. ¶ 24; Def. Exh. Q (Bates No. D0075))
After receiving Dr. Carter's June 29, 1995, letter, Himes, Haeflinger, and Costello met with Stroup to discuss her status with the company and whether her job duties could be changed to allow her to return to work. (LR56.1(a) ¶ 25) Although the record is somewhat confusing, either management or Stroup or both agreed to draft a list of Stroup's duties as Inspection Supervisor. In any event, Stroup agreed to review the list when it was completed. During the meeting, the company also offered Stroup an alternative position as lead inspector, a position the company was going to create for Stroup which it believed would be less stressful than her current job. (Id. ¶ 26(c)) Stroup would not consider the position because she viewed it as a lesser position. She would have been converted to an hourly employee and the possibility existed that her pay would have dropped, at least for a period of time. (LR56.1(b) ¶ 97; 21. Exh. G, Oppman dep., p. 38) Stroup also did not believe the proposed position would be any less stressful than her supervisory position, because she "would still be answering to Paul Haeflinger, and he was the one that gave me stress from screaming." (LR56.1(a) ¶ 26(c))
Stroup subsequently reviewed a list of her job duties with Dr. Carter on or about July 25, 1995. (Id. ¶ 28) At that time, Stroup gave another note to the company from Dr. Carter, which stated she was showing improvement but needed to be off work two more weeks. (Id. ¶ 33)
On July 31, 1995, at Stroup's request, she met with David Lindsey, Clarcor's Vice President of Administration, to talk about what she considered to be unfair treatment. She told Lindsey she did not want to be screamed at by Haeflinger and wanted her "old job" back (i.e., as it was when Koonman was her supervisor). (Id. ¶ 31) After this meeting, Lindsey asked Flumes to follow up and do "whatever we can to get her back to work." (Id. ¶ 32)
On or about August 5, 1995, Stroup submitted a letter to J.L. Clark listing things that would alleviate some of the stress from her job. The letter identified the following: no one-on-one meetings with Haeflinger; an eight-hour day with occasional exception in the case of a crisis; customer complaint letters reassigned to Haeflinger; record-keeping on steel status reassigned to Haeflinger or the Purchasing Department; elimination of Ray-O-Vac order charting duty; the purchase and installation of a conveyor system to assist with checking flat sheet; supplier and test result "correlating" reassigned to Haeflinger or the Engineering Department; tolerance notations on blueprints reassigned to the Engineering Department; and advance notice to Stroup of meetings with steel representatives. (Id. ¶ 34) Per letter dated August 16, 1995, Dr. Carter suggested that Stroup return to work on a trial basis, with the following proposed accommodations: (1) Haeflinger be given sensitivity training or counseling on dealing with Stroup; (2) a third person be present during their interaction, at least during a short trial period after Stroup returned to work; and, (3) J.L. Clark consider Stroup's recommendations concerning work scheduling and procedural problems. (Id. ¶ 36; Def. Exh. W, Bates No. D0079-81)
On August 21, 1995, the parties met with their respective attorneys but the interactive process subsequently broke down. (LR56.1(a) ¶¶ 37-40; LR56.1(b) ¶¶ 24-26) Stroup never returned to work. She was subsequently terminated on June 1, 1996, pursuant to the company's "associate status" policy, which states that an employee on inactive status (which was what Stroup was considered when she went on her leave of absence) for nine consecutive months is terminated. (LR56.1(a) ¶ 42)
Analysis
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c); Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000). A genuine issue of fact exists only when a reasonable jury could find for the nonmoving party based on the record as a whole. Bekker, 229 F.3d at 669. The court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110 (2000); EEOC v. Sears, Roebuck Co., 233 F.3d 432, 436 (7th Cir. 2000). However, a nonmoving party cannot survive summary judgment with merely a scintilla of evidence supporting its position.Sears, 233 F.3d at 437. A nonmoving party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion. Id.
A. Scope
Stroup's amended complaint is based in part on her termination. She filed her discrimination charge on November 14, 1995, and was officially discharged on June 1, 1996. Obviously, her discrimination charge does not mention her termination, and she never filed an amended charge after she was officially terminated. J.L. Clark argues Stroup's termination is beyond the scope of her underlying charge. Stroup argues her termination is reasonably related to the allegations in her charge (Resp., p. 13), and the court agrees. Stroup's charge expressly refers to her leave of absence. Her termination is merely the inevitable result of the leave of absence, involving the same individuals and conduct, and falls within the scope of her charge. See Green v. National Steel Corp., 197 F.3d 894, 898 (7th Cir. 1999) (claim reasonably related to EEOC charge and expected to develop from an investigation into the charges actually raised falls within scope).
B. Count I — ADEA
In her amended complaint, Stroup alleges she was discharged because of her age. (Compl. Ct. I ¶¶ 7, 9) She also contends Haeflinger said and did the following because of her age: (1) treated a coworker, April Schneider (d/o/b April 13, 1962) better than Stroup; and, (2) said to Stroup, after Oppmnan ordered her a new desk, "Young lady you better watch your mouth asking for things if you like your job." (LR56.1(a) ¶ 48)
To support an ADEA claim, Stroup must produce direct or indirect evidence showing her age was "a determining factor" in J.L. Clark's actions against her. Stroup has not produced any direct evidence of age discrimination. Thus, the court will proceed to the indirect, McDonnell Douglas burden-shifting approach. Under this approach, Stroup must initially show: (1) she is within the protected age group; (2) she was performing to the company's legitimate expectations; (3) despite her performance, she suffered an adverse employment action; and, (4) similarly situated, substantially younger employees were treated more favorably.Janiuk v. TCG/Trump Co., 157 F.3d 504, 507 (7th Cir. 1998). If Stroup satisfies that initial burden, J.L. Clark must come forward with a legitimate, nondiscriminatory reason for the adverse employment action.Id. If it does, Stroup must produce evidence from which a reasonable factfinder could conclude that the proffered reason is a pretext for age discrimination. Id.
Stroup has failed to establish the third element of a prima facie case of age discrimination with regard to Haeflinger's treatment of Schneider and his comment to Stroup about the desk. Regarding Schneider, Stroup has failed to show how anything adverse happened to her as a result of Haeflinger's better treatment of Schneider. Likewise, Stroup has failed to show that Haeflinger's comment to her about the desk resulted in any adverse employment action. Thus, her claim fails with respect to these claims.
As for her termination, Stroup has not shown that similarly situated, younger employees were treated more favorably than her. Specifically, she has not produced evidence of at least one substantially younger employee who was on inactive status for nine months and not discharged, or who was allowed to remain off work indefinitely and then allowed to return to work. Even if the court were to consider her to have established a prima facie case, J.L. Clark articulated a legitimate, non-discriminatory reason. Stroup was discharged pursuant to the company's "associate status" policy because she was on inactive status for nine consecutive months. However, Stroup has produced no evidence of pretext. Thus, Count I fails.
C. Count III — Title VII
Stroup contends Haeflinger said and did the following because she is female:
a. In October, 1992, Raeflinger asked Stroup to remove some boxes from his office;
b. On several occasions Haeflinger screamed or yelled at Stroup and beat or hit his fists on his desk;
c. In 1995, Stroup drafted between 25 and 40 responses to customer complaint letters. When she gave the letters to Haeflinger, he told her he had neglected to tell her that a "corrective action" page should not have been included and said, "you can do them over again, young lady;"
d. Haeflinger often rested his chin on his hands when speaking to Stroup, in a way she considered to be condescending and demeaning;
e. Haeflinger talked patiently to Schneider but was abrupt with and "screamed" at Stroup;
f. When steel representatives came to J.L. Clark, Haeflinger would introduce each of the J.L. Clark employees present, but would not introduce Stroup.
(LR56.1(a) ¶ 47(a)-(h)) She also alleges she was discharged because of her gender and was paid less and required to work more hours than her male counterparts. (Compl. Ct. III ¶¶ 7, 9, 10)
It is not clear whether Stroup is pursuing a disparate treatment or hostile work environment theory with respect to her sex discrimination claim based on Haeflinger's conduct. As the majority of her complaints did not result in identifiable adverse employment actions, the court understands her complaints about Haeflinger to be in support of a hostile work environment theory. To support a hostile work environment claim, Stroup must show the workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the conditions of her employment. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78 (1998). The critical issue is whether the harassment about which she complains occurred because of her sex; that is, whether members of one sex were exposed to disadvantageous terms or conditions of employment to which members of the other sex were not exposed. Id. at 80.
Here, Stroup has failed to produce evidence from which a reasonable factfinder could conclude Haeflinger harassed her because of her sex. For example, Stroup's chief complaint is that Haeflinger screamed at her and hit his fist on his desk, yet she also admits Haeflinger screamed at a male employee as well. (LR56.1(a) ¶ 47(d)) Likewise, while Stroup complains that Haeflinger failed to introduce her to steel representatives, she admits he introduced at least one other female employee, Jan Schrader. (Id. ¶ 47(h))
As for Haeflinger's friendly attitude towards Schneider, the court fails to see how this supports a sex discrimination claim. Haeflinger and Schneider subsequently married. Preferential treatment based on a consensual romantic relationship may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged. Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353-54 (7th Cir. 1995). The remainder of Haeflinger's conduct (asking her to move boxes, not telling her about a change in customer response letters until after she had completed the task, resting his chin on his hand when talking to her), is not inherently sexual, and does not rise to the level of creating a hostile and offensive work environment from an objective viewpoint. See, e.g., Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir.), cert. denied, 528 U.S. 874 (1999) (supervisor's conduct, including allowing a door to close in plaintiff's face, startling her by approaching her from behind in an electric cart without warning, cutting her off in a parking lot, and persistently using profanity were insufficiently severe to give rise to a hostile environment); Saxton v. ATT, 10 F.3d 526, 534-35 (7th Cir. 1993) (supervisor's unpleasant behavior, including condescension and impatience, did not create abusive work environment within meaning of Title VII)
As for Stroup's sex discrimination claim based on her termination, the court finds this claim fails for the same reason as her age discrimination claim. She has failed to produce evidence of similarly situated male employees who were placed on inactive duty for nine consecutive months who were not discharged, or who were not considered on inactive duty despite being in similar circumstances and who were somehow allowed to return to work (or otherwise treated more favorably than Stroup)
The court finds questions of fact exist, however, regarding Stroup's Title VII wage discrimination claim. The McDonnell Douglas burden-shifting approach applies to her claim. See Ghosh v. Indiana Dep't of Envtl. Mgmt., 192 F.3d 1087, 1094 (7th Cir. 1999). Under this approach, a prima facie case requires Stroup to produce evidence that she was paid less than a similarly-situated male or males. See Johnson v. University of Wisc.-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995).
Stroup bases her wage discrimination claim on Title VII, not the Equal Pay Act, 29 U.S.C. § 206 (d). (Compl. Ct. III ¶ 1) Stroup also bases her wage discrimination claim on the ADEA (Pl. Resp., p. 7-8), but the court agrees with J.L. Clark that such a claim defies logic. Two of the comparables are older than her and two are near her age. (LR56.1(a) ¶ 50)
Here, Stroup claims she was paid less than the following supervisors: Roger Schroder (Ad-Pack Supervisor, earning $47,045 in 1995): William Bogard (Fabrication Supervisor, earning $42,710 in 1995); James Vant (Fabrication Supervisor, earning $42,295 in 1995); Cass Stacey (Lithography Supervisor, earning $41,385 in 1995); Owen Johnson. (Art Superviuor, earning $42,230 in 1995); and Dennis Anderson (Tool Room Supervisor, earning $49,850 in 1995). (LA56.1(a) ¶ 50) Stroup earned $38,090 in 1995. (Id.)
J.L. Clark argues the male individuals identified above are not similarly situated to Stroup, yet the court finds questions of tact preclude it from making this determination. Rhonda Mimes, the Director of Human Resources at J.L. Clark, was the individual produced in response to Stroup' a request, pursuant to Fed.R.Civ.p. 30(b)(6), for a designee to testify about J.L. Clark's salary administration. Mimes stated she did not know what the company' a salary administration policies were prior to 1996. (LA56.1(b) ¶¶ 45-47, 49, 52-53) The person responsible for salary administration between 1993 and 1996, Ron Moreau, then the President of J.L. Clark, also could not describe his salary administration policy during the relevant time period. (Id. ¶ 69, 82) Neither Mimes nor Moreau could say why Stroup was paid her salary, nor was there any documentation to show how or why Stroup was assigned to a particular salary range. (Id. ¶¶ 46, 51, 80)
Since J.L. Clark is unable to articulate its salary administration policy, the court is unable to evaluate any reasons for the disparities in pay. As an example, J.L. Clark argues the male supervisors are not similarly situated to Stroup because they supervised significantly more employees than Stroup. However, Himes testified the number of individuals a person supervised had nothing to do with what they were paid in the classification. (Id. ¶ 63) Questions of fact preclude J.L. Clark's motion as to Stroup's wage discrimination claim.
D. Count V — ADA
Under the ADA, two distinct categories of disability discrimination claims exist: failure to accommodate and disparate treatment. Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). Here, Stroup is asserting a failure to accommodate claim. Stroup must initially show she is disabled within the meaning of the ADA. See 42 U.S.C. § 12112 (a); Sinkler v. Midwest Prop. Mgmt. Ltd. P'ship, 209 F.3d 678, 683 (7th Cir. 2000). Under the statute, a disability is defined as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102 (2)(A)-(C); Sinkler, 209 F.3d at 683. If Stroup's condition does not rise to the level of a disability as defined by the ADA, she cannot recover. Sinkler, 209 F.3d at 683.
There is also a third type: an ADA hostile work environment claim, a claim the Seventh Circuit has not yet explicitly recognized. See Conley v. Village of Bedford Park, 215 F.3d 703, 712-13 (7th Cir. 2000); Silk v. City of Chicago, 194 F.3d 788, 803 (7th Cir. 1999). It does not appear Stroup is asserting this type of claim; even if she was, it would fail.See id.
To the extent Stroup haif-heartedly argues that J.L. Clark regarded her as being disabled under § 12102(2)(C), her evidence (LR56.1(b) ¶ 105) does not show J.L. Clark believed she was unable to work in a particular class or broad range of jobs. Thus, this argument fails. See Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 954 (7th Cir. 2000);Sinkler, 209 F.3d at 686.
The court follows a three-step test to determine if a physical or mental condition meets subsection (A) of the definition of disability.Id. First, the court determines whether the condition claimed was a physical or mental impairment. Id. Second, the court identifies the life activity upon which the plaintiff relies, and determines whether it constitutes a major life activity under the ADA. Id. Third, the court determines whether the impairment substantially limited this major life activity. Id.
Here, the conditions claimed are mental impairments; specifically, stress, anxiety, and depression. (P1. Exh. A, Carter Aff., ¶ 3) As for the second step, the only major life activity Stroup identifies with any particularity is that of working. (P1. Resp., pp. 3-4) While courts have questioned whether "working" should be considered a "major life activity" under the ADA, see Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1060 n. 2 (7th Cir. 2000), the parties do not dispute this point.
Stroup's claim falters at the third step. In the context of working, "substantially" limits means the individual is significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes. Contreras v. Sunoast Corp., ___ F.3d ___, 2001 WL 8434, at *4 (7th Cir. Jan. 3, 2001). A review of Stroup's testimony shows her mental impairments of stress, depression, and anxiety do not substantially limit her in the major life activity of working.
When discussing why she rejected the company' s proposal of transferring her to a lead inspector job, Stroup stated:
Q: Would you agree with me that job, whether you wanted it or not, would be less stressful than being inspection supervisor as you were currently doing what the inspection supervisors do?
A: It wouldn't be any less stress. I would still be answering to Paul Haeflinger, and he was the one that gave me stress from screaming.
Q: So that was really the key thing that was causing you some stress?
A: That's right.
(Def. Ext. A, Stroup dep., p. 92)
Stroup also testified:
Q: I think you told me last time that you believed the key cause of your stress was Paul Haeflinger; is that true?
A: Yes.
Q: Do you think that If you were not working for Paul Haeflinger you would have been able to do your job?
A: Yes, I would have been able to do my job. I did It before and was happy doing It and did a good job.
(Id. p. 130) (emphasis added). Also, in a memo dated August 5, 1995, Stroup wrote: "[Haeflinger] is the cause of the entire stress problem, screaming at me, giving me too much of others [sic] responsibilities, slamming his fist on the desk when he doesn't get the response he expected." (Def. Exh. V) It is well-established that a person's inability to work for a particular supervisor does not mean she is substantially limited in her ability to work. Schneiker, 200 F.3d at 1061-62; Weiler v. Household Fin. Corp., 101 F.3d 519, 524-25 (7th Cir. 1996) Stroup attempts to step away from her own testimony via an affidavit from Dr. Carter, an affidavit drafted by Stroup's attorney. Therein, Dr. Carter opines that Stroup's stress, anxiety, and depression substantially limited her ability to perform a wide range of tasks, and that Stroup's interpersonal relations with her supervisor was not the only factor contributing to her anxiety and depression. (21. Exh. A, Carter Aff., ¶¶ 8-9, 11) The court finds Stroup has impermissibly attempted to impeach her own testimony through her treating physician. This is not a situation where a layperson gives an opinion about a subject outside her personal knowledge. Rather, Stroup was identifying the source of her stress. This was a subject within her personal knowledge, more so than within Dr. Carter's personal knowledge. Stroup is forbidden from doing through a third party what she is forbidden from doing herself. That is, just as she cannot create an issue of fact by submitting an affidavit which contradicts earlier sworn testimony, see, e.g., Kalis v. Colgate-Palmolive Co., 231 F.Jd 1049, 1055 (7th Cir. 2000), she cannot do the same via a third party's testimony.
Several of Dr. Carter's proposed accommodations (and the most concrete ones) reinforce the conclusion that Stroup's problems centered on Haeflinger. Dr. Carter suggested that he be given sensitivity training or counseling and that there be a third person present during their interactions, at least for a trial period of time. (Def. Exh. W, Bates No. D0080-81)
In short, Stroup's testimony shows she is not precluded from a class of jobs or a wide range of jobs. Because the court finds she is not disabled within the meaning of the ADA, the remaining aspects of her failure to accommodate claim need not be addressed.
Conclusion
For the reasons set forth above, J.L. Clark's motion for summary judgment is granted in part and denied in part. Stroup's Title VII wage discrimination claim in Count III survives.