Hon. William T. Lawrence, Judge.
This case is before the Court on the Defendants' motion for summary judgment (Dkt. No. 47). The motion is fully briefed and the Court, being duly advised,
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed,
The relevant
Plaintiff Brigid Ford began working full-time as a deputy for the Marion County Sheriff's Office ("MCSO") in 2003, having previously worked as a reserve officer.
On April 18, 2012, Ford was injured in a car accident. She returned to work on "limited duty" status on April 25, 2012. Until January 19, 2013, she conducted research and fulfilled other duties in the criminal warrants unit. She was then transferred to the Marion County Jail, where she monitored security cameras. Ford continued to receive her full deputy's salary while she was on light duty.
In March and April 2013, Ford's treating physician provided the MCSO with documentation showing that Ford had permanent restrictions due to reflex sympathetic dystrophy ("RSD") and a permanent injury to her dominant right hand. On May 10, 2013, Ford was sent for a fitness for duty exam and placed on administrative leave with pay pending the outcome. Dr. Stephen Moffatt performed the fitness for duty exam and reviewed Ford's job position and her medical records. On June 7, 2013, Dr. Moffatt reported his conclusion that Ford could not perform the duties of a deputy sheriff due to a permanent injury to Ford's right hand that prevented her from carrying a firearm, an essential function of the deputy sheriff position.
On June 19, 2013, Human Resources Director and EEO Officer Angela Grider, Chief Deputy Eva Talley-Sanders, and Colonel Louis Dezelan met with Ford and informed her of Dr. Moffatt's conclusion. After a review of various open civilian positions, they offered Ford the opportunity to move to an open civilian position as a main control clerk earning significantly less pay (a decrease in base salary of $11,647.86), resign, or be terminated. They also gave Ford a document summarizing
The following day, Ford sent the following email to Grider:
Dkt. No. 70-11 at 1. Ford's request for an accommodation was the first that Grider and Talley-Sanders had dealt with at the MCSO. Five days later, on June 25, 2013, Grider replied to Ford:
Id. Ford responded the same day:
Dkt. No. 70-12 at 1.
something from you in writing with the requested accommodation. Id. Ford responded by asking what the surgeon was reviewing, to which Grider responded "I can only assume the job description you provided for the position and his previous notes regarding your status/progress following treatment he provided? You would be better to ask that question to the nurse for certain though." Id.
On July 11, 2013, Grider sent Ford the following email: "To follow up to our phone conversations this morning at 830 am [sic], regarding a request for accommodation for the Main Control Clerk position that was offered to you on June 19, 2013; it is imperative that we receive your written request for accommodations no later than the close of business, Friday, July 12, 2013." The next day, Ford hand delivered a letter to the MCSO that explained that her hand surgeon had "placed the limitations of no repetitive motion, no twisting or gripping, and weight restricted to no more than two pounds." Dkt. No. 70-15 at 1. She further explained that she had helped out in main control while she was on light duty and "the job as it is currently exacerbates my complex regional pain syndrome and is outside the scope of my limitations," but that "I think that if the department were to provide some reasonable accommodations, I might be able to do that job." Id. She explained that "[t]he specific job functions that would be difficult for me in their present form are answer the phone, looking up information, pressing the door buttons to let people into and out of the jail, and the overall noise of the environment." Id. Ford requested the following accommodations, explaining, in detail, why she needed each one: a headset or hands-free phone, a voice-activated software system, an ergonomic work station, an ergonomic chair, sensitivity training for her supervisors regarding her disability, and the ability to take breaks and stand and walk when needed. She also asked for "periodic reviews" of her situation "to see if improvement could be made." Id. at 2.
In a letter dated September 16, 2013, Grider responded to Ford's accommodations request and asked Ford to contact her no later than September 27, 2013, to "address these issues." Dkt. No. 70-17. The letter stated that the MCSO would "purchase a reasonably priced ergonomic chair and work station, and a headset or hands-free phone" and would "provide training to supervisors regarding [her] condition." Id. The MCSO further agreed to make reasonable efforts to allow Ford to take breaks as necessary. The MCSO did not agree to provide Ford with a voice-activated system because Grider was informed that the programs used in the position were not technologically compatible with the available voice activated systems. Other employees at the MCSO used voice-activated systems at the time.
Dkt. No. 70-18 at 2. Having received no response, on September 27, 2013, Ford emailed Grider and stated: "Although I have concerns about my ability to do the job of Main Control Clerk without some type of accommodation to reduce/minimize the typing, I do want to work. When will I start in Main Control?" Id. at 1. Grider responded by directing Ford to report to work on Monday, September 30th. She further stated: "Because you are now returning to work in the Main Control position, I am assuming that your pending requests regarding other possible assignments is now a moot issue. Please contact me if you have any questions or concerns."
When she reported to work on September 30, 2013, Grider told Ford that she would be given a week to observe positions in the book-out process and visitation process to determine whether she could perform them. During this week, on October 3rd, Ford met with Grider and "broke down into tears" while explaining that she did not know if she could work with Carol
Id.
Ford ultimately accepted the position as a visitation clerk. As promised, the MCSO provided Ford with an ergonomic work station, a telephone headset, an ergonomic chair, and the opportunity to take breaks as necessary. Additionally, Ford's supervisor in visitation, Lieutenant James Walterman, would frequently allow Ford to leave early — using her leave time — if she was experiencing a lot of pain.
On Ford's first day as a visitation clerk, her co-worker Carol Ladd asked her if she was going to stay in that job. When Ford responded that it depended on whether certain accommodations could be made for her, Ladd "said words to the effect of I'm smart, I went to college, I studied human resources, I know the law, and they don't have to make any accommodations for you." Dkt. No. 75-8 at 12. Ford "immediately got up and walked and reported that conversation to Ms. Grider." Id. Ford completed her shift with Ladd that day and did not have any other conversations with her regarding Ford's disability or accommodations.
Ford's trouble with Ladd continued and later, when employee Eva Watts began working as a visitation clerk, she joined Ladd in harassing Ford on a daily basis.
On February 1, 2014, Ford emailed Lieutenant James Walterman to complain about Ladd not acknowledging her when Ford spoke to her. The email relates a lengthy story regarding an event that had occurred that morning that Ford characterized as showing Ladd's animosity toward Ford. She stated that "I am trying very hard not to let this stuff get to me, but it really causes me pain to have to deal with this animosity. I know you said that you would deal with it next week, and if necessary I will take a break or do whatever I need to do to keep the peace today." Dkt. No. 71-4. The next day, Ford emailed Walterman to report that "the rest of Saturday was pretty uneventful" but that Ladd, while on a personal phone call in the work area Ford and Ladd shared, had said to the person on the phone that "she was tired of these people who pretend that they are disabled just so they can get special treatment." Dkt. No. 71-5.
On March 13, 2014, Ford sent a lengthy memorandum to Walterman in which she detailed the following objectionable behavior by Ladd toward her that had occurred over the course of that day: (1) Ladd making many unspecified "snide remarks"; (2) Ladd commenting to Watts, whom Ford was training, that if Ladd "did not wait until her computer shut down `[Ford] will read everything on it'"; (3) when Ford mentioned to another employee that Ladd had made fresh coffee, Ladd "made a remark to the effect that she was a nice person who just did things like that"; (4) as reported to Ford by Watts, Ladd "shashayed [sic] her hips on out of here" after Ford passed along work-related information to Ladd; (5) Ladd making comments about how Ford was performing her job (such as leaving callers on hold too long); and (6) Ladd speaking to her while she was on work calls. Ford reported to Walterman that Sergeant Johnson had "attempted to mediate the situation" and that Ladd had left the office and refused to listen when it was Ford's turn to speak. The memo concluded:
Dkt. No. 71-6. Walterman sat down with Ford and Ladd and discussed the situation, after which the situation improved for a couple weeks, but then Ladd resumed her hostile acts. For example, Ladd would put her phone on speaker while Ford was
Per MCSO policy, in March 2014, Ford submitted documentation to the MCSO regarding a change in her pain medication. The MCSO sent Ford's job description and her reported medication list to Dr. Moffatt for his evaluation of whether it would inhibit her ability to do the job safely. Dr. Moffatt determined that Ford should not take the medication within eight hours of reporting to work. Based on Dr. Moffatt's determination, the MCSO informed Ford that she could not take the medication within eight hours of reporting to work.
On April 30, 2014, Ford emailed Walterman and related an incident in which Watts had created a scene when Ford had informed her that she could not take certain training materials home with her. Dkt. No. 71-8.
On May 10, 2014, Ford emailed Walterman to share some observations regarding mistakes that had been made with visitation scheduling. Dkt. No. 71-10.
On June 21, 2014, Ford emailed Walterman again documenting visitation scheduling mistakes that had been made. She also thanked Walterman for "letting me leave Thursday," which was "a very bad pain day" that was made worse by the fact that Ladd and Watts "kept the phones on speaker." Dkt. No. 71-11. A few days later,
On July 8, 2014, Ford emailed Walterman and complained that Ladd did not respond when Ford said good morning to her, and that Ladd said that Ford's yogurt smelled "like vomit and was making her sick." Dkt. No. 71-13. On July 23, 2014, Ladd remarked in Ford's presence that "people who claim to have medical problems often have mental disabilities and need to get medication for that instead of expecting everybody else to deal with their so-called medical problems." Dkt. No. 75-8 at 17. Following that comment, Ford sent Walterman an email that read: "The remark
Dkt. No. 71-15. A few minutes later, she emailed Walterman the following:
Dkt. No. 71-16.
A few weeks later, on August 21, 2014, Ford sent the following email to Walterman:
Dkt. No. 71-17.
On November 11, 2014, Ford sent the following email to Walterman:
Dkt. No. 71-18.
On December 9, 2014,
Dkt. No. 71-9. The animosity exhibited by Ladd and Watts caused Ford stress that exacerbated her pain and caused her to leave work early on multiple occasions.
Later in December 2014 Ladd and Watts were transferred to a different department.
In December 2014, the MCSO changed the work schedule of all of the visitation clerks, including Ford. Visitation clerks previously worked a fixed schedule of five days on, two days off. However, many of the MCSO's employees work a schedule with rotating days off. That allows for much greater scheduling flexibility and efficiency as the MCSO, including the visitation section, operates 24 hours a day, seven days a week. By having employees work on rotating schedules, days off can be distributed fairly among the employees and the visitation area can be staffed more efficiently. On January 26, 2015, Ford requested in writing that she be permitted to return to a schedule that gave her fixed days off as an accommodation for her disability. In her request, she noted that she was not permitted to take her pain medication during work or within eight hours before going to work and that it was "very hard for me to adjust to having different days off, and that combined with the ban on taking my medication makes it difficult for me." Dkt. No. 49-1 at 22. She also expressed her belief that her schedule was changed as punishment for complaining about "the way I was being mistreated by fellow clerks." Id. She submitted a note from her physician in support of her request. In a written response dated February 12, 2015, Grider informed Ford that her request was denied "because it is not a reasonable accommodation." Id. at 26. Grider asked Ford to contact her to discuss what other options might be available. Grider also noted that the schedule of all civilian visitation clerks had been changed and that the change "had nothing to do with your complaint about a co-worker that was made over a year ago." Id.
In January 2015, a new employee, Vashni Hendricks, started working as a visitation clerk and promptly began harassing Ford "almost daily,"
Ford reported two incidents involving Hendricks to Walterman. On January 20, 2015, she reported an incident in which she had corrected Hendricks on a work matter, after which Hendricks "was mad and did not speak to me after that. This is actually the third time that she has done that in the past week." Dkt. No. 70-21. On February 13, 2015, she reported that Hendricks had become hostile, rude, and argumentative with Ford when Ford tried to help her correct a mistake.
In June 2015, Ford reported to Sergeant Marvin Johnson that Hendricks made a comment about "getting a gun and blowing [Ford's] brains out." The MCSO investigated the report. Hendricks submitted a written response, in which she stated that she had not been referring to Ford with her comment, but was instead reacting to a news article regarding a mass shooting. While reading the article, Hendricks stated in what she thought was a "low voice," "he has blown all their brains out." Dkt. No. 49-1 at 32.
On the afternoon of June 19, 2015, Ford sent an email to Sergeant Johnson and Nesbitt with the subject line "Problematic Co-worker" which read:
Dkt. No. 49-1 at 28.
Also on June 19, 2015, Nesbitt completed an Incident Investigation form regarding "ongoing issues" that Hendricks reported having with Ford. Attached to the report was a lengthy typewritten list prepared by Hendricks entitled "things that has been going on with me since coming to
After the investigation was complete, on August 3, 2015, Ford received a Letter of Reprimand that stated that she had violated rules and regulations pertaining to "addressing fellow employees," "general conduct," and "conduct unbecoming." The letter stated that "[o]n several occasions, you have been involved in arguments and disagreements with another visitation staff member" and that "[t]he constant tension and verbal disagreements have been witnessed by others and are inappropriate for the work environment." Dkt. No. 49-1 at 43. Hendricks received a Letter of Caution citing the same rules and issues. Ford received a letter of reprimand, as opposed to the letter of caution received by Hendricks, because Ford had received discipline previously, in January 2013.
On August 26, 2015, Watts came into the visitation area and falsely accused Ford of stealing her cigarettes. Hendricks "went next door and told Lieutenant Shanklin, and then [Watts] found them in her back pocket." Dkt. No. 75-8 at 23. In September 2015, Hendricks, in front of Shanklin, told Ford that Ford should have to prove that she was disabled. Shanklin responded by telling Ford that Hendricks was "just kidding" or "just joking." Id. at 24; Dkt. No. 75-14 at ¶ 34 (not ¶ 32 as cited by Ford).
In an annual review dated December 2015, Shanklin documented that Ford met or exceeded all standards. Dkt. No. 72-3. She was described as "work[ing] well with other deputies to ensure task(s) are completed" and "always willing to assist other deputies and civilian employees with duties." Id. Shanklin also noted that "[w]orking with Hendricks is often still a challenge." Id.
In January 2016, Ford had an issue with a visitor who wanted to use a passport for identification. According to a memo she wrote about the incident, Ford asked Supervisor Marvin Johnson for assistance and he did not respond to her. Later Ford attempted to address the issue with him and asked why he had not helped her. Lieutenant Sullivan came into the office, interrupted Ford's attempt to explain her version of events, and told Johnson that "she was tired of this (or words to that effect) and that he needed to do something about it." Ford reported that visitors could hear this exchange and that she felt humiliated and embarrassed and believed "Lt. Sullivan was referring to my EEOC complaint and my federal lawsuit against the department and that the hostility she displayed when she told Supervisor Johnson
On February 21, 2016, Hendricks "was upset and talking out loud, making vague statements about the ignorant people that I work with, she ripped up the paperwork that [Ford] had started on for the day [and] made the statement `It's a good thing I don't have a gun.'" Dkt. No. 75-8 at 26-27. Ford reported this comment in a meeting with Captain Darrell Smith, Lieutenant Tia Shanklin, and Hendricks in late February or early March 2016. Dkt. No. 75-14 at ¶ 41.
On June 22, 2016, Ford sent the following memo to Lieutenant Shanklin:
Dkt. No. 71-3.
On at least two occasions, Hendricks pointed a fan in the office at Ford, even though Ford had told her that the air blowing on her skin was painful to her.
Hendricks was transferred out of the visitation department in July 2016 due to the continued conflict between Ford and Hendricks. Ford remains employed with the MCSO in the visitation clerk position and has not had any conflict with any other coworkers. In August 2016, Ford began receiving psychological treatment through the MCSO's Employee Assistance Plan. In Ford's 2016 performance review, she was again ranked as meeting or exceeding all standards.
As noted above, for the first nine months after returning to work on light duty, Ford worked in the warrants section where prior to her accident she had worked as a deputy sheriff serving warrants. There are both law enforcement positions and two or three civilian positions (criminal analysts) in the warrants unit. While Ford worked there after her accident, she was not filling one of the civilian positions; rather, she was on light duty and was doing work that was "more directed towards the needs of the officers on the street." Dkt. No. 75-11 at 4. However, over her time on light duty she did at some
Since moving into the visitation clerk position, Ford has applied for several open positions. In March 2016, Ford applied for a SOVO Clerk Position. She was not interviewed for the position because she had discipline on her record from the previous twelve months. It was Ford's understanding that it was MCSO's policy "for job postings to consider only discipline imposed within six months of application," Dkt. No. 75-14 at ¶ 47; however, the division commander responsible for that particular position required no disciplinary history for a year. In the summer of 2016, Ford applied for a human resources generalist position. She was interviewed but not chosen for the job. Instead "an employee named Zachary Shelton, who had been working for MCSO in Inmate Records for only four months, was given this position, even though the posting specifically required a year of employment with MCSO." Dkt. No. 75-14 at ¶ 44. In October 2016, Ford applied for an intelligence analyst position; she was denied an interview because of her "attendance history and/or discipline history." Id. at ¶ 45. The person chosen for the position "had only worked in Main Control for 7 years." Id.
Several civilian employees left the warrants section between February 2013 and May 2013: Kristen Belskus, who was transferred between February and March 2013; Mary Wiseman, who was transferred between April and May 2013; and Pam Forrester, who worked in the warrants section in February 2013 and apparently did not thereafter.
At some point in time, Marvin Johnson "was found he could no longer meet all the requirements of being a deputy sheriff." Dkt. No. 75-10 at 7.
Ford signed receipt of the MCSO's Rules and Regulations for Civilian Employees on December 3, 2014, which includes a section entitled "Discriminatory Acts" that reads as follows:
Dkt. No 49-1 at 11. The following section, entitled "Procedure for Reporting Discriminatory Acts," refers only to "discriminatory Acts or harassment which pertain [sic] to race, sex, religion, military veteran status, sexual orientation or national origin." Id. at 12. The section after that discusses sexual harassment. Following that is a section entitled "Protect Yourself from Sexual Harassment or Acts of Discrimination," which reads as follows:
Id. at 13. After a paragraph addressing sexual harassment, the section continues:
Id. at 14. The MCSO does not have a policy that refers to the Americans with Disabilities Act or that refers to "disability" rather than "physical handicap" and does not have a policy regarding making accommodations for employees' disabilities. Grider, who has been the MCSO's Director of Human Resources since 2011 and serves as the MCSO's EEO officer, has attended one seminar regarding ADA training, which was in 2010. She has received on-the-job training on the topic from MCSO Chief Deputy Eva Talley-Sanders.
In Count I of her Amended Complaint, Ford asserts a claim for discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), alleging that the Defendants violated the ADA by (1) failing to accommodate her by refusing to allow her to have a consistent schedule and preventing her from taking pain medication without justification; and (2) "unnecessarily mov[ing] Ms. Ford from her position in the Warrants division, even though it is also staffed by civilians, and Ms. Ford had worked there for over a year; decreas[ing] Ms. Ford's pay (and/or not provid[ing] Ms. Ford with a position with commensurate pay); refus[ing] to allow Ms. Ford to transfer to other open positions for which she was qualified; prevent[ing] Ms. Ford from changing her schedule and taking pain medication; and then disciplining Ms. Ford for reporting the behavior of other employees who harassed her because of her disability." In Count II, she asserts a claim for retaliation, alleging that all of the acts listed above were taken in retaliation for requesting accommodations under the ADA and complaining to her supervisor when the accommodations were not granted. The Defendants move for summary judgment on all of Ford's claims.
"The ADA requires employers to make reasonable accommodations that will allow a qualified individual with a disability to perform the essential functions of his or her job." Brown v. Milwaukee Bd. of Sch. Directors, 855 F.3d 818, 820 (7th Cir. 2017) (citations omitted). Ford argues that the Defendants failed to provide her with reasonable accommodations to which she was entitled in several respects.
There is no question that "[r]eassigning disabled employees to vacant positions that they can perform is a reasonable accommodation." Id. at 21 (citations omitted).
Id. (citations omitted).
Ford points to no evidence that between June and September 2013, the time during which she and the MCSO were working to find her an appropriate alternative position,
Ford also argues that the Defendants failed to accommodate her by refusing to allow her to take her pain medication within eight hours of her work shifts and by changing her schedule to one with rotating days off. With regard to her pain medication, "[t]he standard rule is that a plaintiff must normally request an accommodation before liability under the ADA attaches," Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000), and Ford does not point to any evidence in support of her assertion that she "made additional accommodation requests, including ... the ability to take pain medication...." Dkt. No. 133-1 at 47. The Defendants were not obligated to consider on their own the possible impact of each of their policies on Ford in light of her disability. Wells v. Winnebago Cty., Ill., 820 F.3d 864, 867 (7th Cir. 2016) ("[O]ur cases have consistently held that disabled employees must make their employers aware of any nonobvious, medically necessary accommodations with corroborating evidence such as a doctor's note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA's reasonableness standard to provide a specific modest accommodation." (citing Ekstrand v. School District of Somerset, 583 F.3d 972, 976 (7th Cir. 2009)). Indeed, such a requirement would encourage the very type of stereotyping of disabled individuals that the ADA is designed to ameliorate. Cf.
Ford did ask that she not be required to work a rotating schedule. The Defendants argue that permitting her to work a fixed schedule would not have been a reasonable accommodation because it would have placed an undue hardship on the MCSO.
The Defendants have pointed to sufficient evidence from which a reasonable jury could find that having the visitation clerks on a schedule with rotating days off allowed for greater scheduling flexibility and efficiency than having them on a fixed schedule. However, the Defendants have not pointed to evidence that demonstrates as a matter of law that to do otherwise would have been an "undue hardship" as that term is defined by the ADA. See 42 U.S.C. § 12111(10) (defining "undue hardship" as "an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B)"). The Defendants point only to the assertion by Grider in her declaration that it would have been an "undue hardship" for Ford to remain on a fixed schedule while the other visitation clerks were on a rotating schedule because that "could not be done efficiently." Putting aside the fact that whether something is an "undue burden" is a legal conclusion and the Defendants fail to point to evidence in the record to support it, this statement also mischaracterizes Ford's requested accommodation. Ford asked that she be allowed to continue (or to return to) working a fixed schedule. The Defendants point to no evidence that putting all of the visitation clerks back on a fixed schedule would have been an undue hardship. The rotating schedule may have been more efficient and flexible, but the Defendants have not pointed to evidence that continuing to use a fixed schedule would have required the type of significant difficulty or expense required by § 12111(10). Accordingly, the Defendants' motion for summary judgment is
The ADA prohibits discrimination against an employee on the basis of the employee's disability. 42 U.S.C. § 12112(a). To survive summary judgment on this claim,
The Defendants argue that Ford did not suffer any adverse employment action. In response, Ford argues that because the visitation clerk position to which she was transferred paid less than her deputy position, the transfer was an adverse action. While a demotion can certainly be an adverse employment action, to the extent that Ford was "demoted," it was because she could no longer perform the essential functions of her deputy position, with or without a reasonable accommodation.
The only other adverse action asserted by Ford is that she was "denied promotions and transfers, and these positions were provided to employees with less experience and less seniority with MCSO." Dkt. No. 133-1 at 32. "Failure to promote can be an adverse action giving rise to liability, but the plaintiff must first show that she properly applied for the position." Hill v. Potter, 625 F.3d 998, 1003 (7th Cir. 2010) (citations omitted). Ford has offered evidence that she applied for four positions, which the Court will assume would have been promotions for her. The entirety of the evidence that she points to with regard to those positions is set forth infra. She points out what she perceives as deficiencies in the experience of some of the applicants who were chosen over her, but she does not provide any evidence of what type of experience the decision makers believed to be important. She does not point to any evidence to refute the Defendants' assertion that her disciplinary and/or attendance record was legitimately considered in some of the decisions or that she was not otherwise the best candidate for the job. She has not even pointed to any evidence that the particular decision makers knew that she was disabled, or indeed even that the people who were chosen for the jobs over her were not disabled themselves. In other words, Ford
As with her discrimination claim, to survive summary judgment on her claim for retaliation under the ADA Ford must show that she engaged in statutorily protected activity, that she suffered an adverse employment action, and that there is a causal connection between the two. See, e.g., Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 814 (7th Cir. 2015). Ford asserts that she was subjected to the following adverse actions:
Dkt. No. 133-1 at 49. With regard to the first two, Ford's retaliation claim fails for the same reasons as her discrimination claim. As for the third, any loss of comp time due to working without pain medication or a change in her schedule would be a result, not an action; the actions would be the application of the pain medication policy and the schedule change, and Ford points to no evidence from which a reasonable juror could conclude that those were acts of retaliation, rather than the application of general MCSO policies to her. At the summary judgment stage, it is up to counsel to connect the dots between the facts of record and the law with regard to each alleged claim; "[i]t is not this court's responsibility to research and construct the parties' arguments," Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011), and "`[p]erfunctory and undeveloped arguments are waived.'" Lauth v. Covance, Inc., 863 F.3d 708, 718 (7th Cir. 2017) (quoting Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002)). Finally, any loss of comp time due to "the actions of other MCSO employees" also is a result; the action would be creating or allowing a hostile work environment. Ford's hostile work environment claim is discussed below; there is no separate claim for creating or allowing a hostile work environment in retaliation for protected activity. The Defendants therefore are entitled to summary judgment on Ford's claim for retaliation.
Finally, Ford alleges that she was subjected to a hostile work environment
Alamo v. Bliss, 864 F.3d 541, 549-50 (7th Cir. 2017) (internal citations and quotation marks omitted).
The Defendants argue that the conduct described by Ford is not sufficiently severe or pervasive to constitute a hostile work environment. The Court has set forth above in great detail the evidence pointed to by Ford regarding her work environment. Viewing the evidence in the light most favorable to Ford, the Court finds that a reasonable jury could find that the conduct described by Ford rises to the level of an actionable hostile work environment, at least for some periods of time.
The Defendants also argue that Ford has failed to show a basis for employer liability. With regard to co-worker harassment, an employer "is liable only if it was `negligent either in discovering or remedying the harassment.'" Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 930 (7th Cir. 2017) (quoting Vance v. Ball State Univ., 646 F.3d 461, 470 (7th Cir. 2011)). Viewing the evidence in the light most favorable to Ford, the Court finds that a reasonable jury could so find with regard to the period of time before Ladd and Watts transferred out of the visitation department. The Court has set forth in detail the evidence of record regarding Ford's complaints to Walterman, her supervisor, during that time period; the jury
However, the Court finds that Ford has not pointed to evidence from which a reasonable jury could find a basis for employer liability by Hendricks, her co-worker after Ladd and Watts left the visitation department. While Ford made many complaints about Hendricks, an examination of the evidence pointed to by Ford shows that prior to June 22, 2016, none of those complaints put the Defendants on notice that Ford perceived Hendricks' actions as harassment based on her disability. Rather, the earlier complaints involved Ford and Hendricks clashing over work issues and Hendricks making comments that did not reference Ford's disability. Ford also complained that Hendricks used lotion that "made her ill," but she points to no evidence that sensitivity to lotion smell is a result of her disability or, if it is, that the Defendants were aware of that fact. Ford also points to a time in September 2015 when Hendricks remarked in front of Shanklin, a supervisor, that Ford should have to prove that she was disabled and Shanklin responded by telling Ford that Hendricks was "just kidding" or "just joking." As a matter of law, that isolated incident alone is not sufficient to support a finding that the Defendants knew or should have known that Hendricks was subjecting her to a hostile work environment due to her disability.
On June 22, 2016, Ford sent a memo to Shanklin in which she described comments made by Hendricks about her disability and asked that the issue be addressed. Hendricks was transferred out of visitation the following month. The Court finds that based on the facts of record, no reasonable jury could find that the Defendants were negligent in failing to discover or remedy disability-based harassment by Hendricks.
Finally, Ford points to Major Crear's comment in January 2016 that someone "supposedly in as much pain as [Ford] was claiming to be in would not have the energy to be up in front of the Supervisor's desk, waving [her] arms around" as part of the hostile work environment she was subjected to. However, Ford made a lengthy report to Shanklin about that incident, and she did not mention that she believed she was being harassed because of her disability, either generally or in that instance; rather, she stated in the memo that she believed that Lt. Sullivan, Supervisor Johnson, and Hendricks were hostile to her "because of my EEOC complaint and the lawsuit that I filed in federal court last month." Dkt. No. 71-2. Therefore, the Defendants were not negligent for failing to investigate the possibility of a hostile work environment on the basis of that complaint.
For the reasons set forth above, the Defendants' motion for summary judgment (Dkt. No. 47) is
One final note. As discussed above in footnote 14, the Defendants assert that the City of Indianapolis is not a proper defendant in this case. If this is so, it is unclear to the Court why the City did not move for summary judgment on that ground. The parties are encouraged to discuss whether this is an issue on which an agreement can be reached prior to trial.
SO ORDERED: 9/20/17.
