TANYA WALTON PRATT, District Judge.
This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant Franciscan Alliance, Inc. ("Franciscan") (
The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Rose as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In May 2011, Rose started a position at St. Francis Hospital (the "Hospital"), one of Franciscan's network hospitals, as a part-time registrar in Patient Access with a .2 FTE schedule
Rose has cerebral palsy and a vision impairment (
In September 2014, Rose accepted a position at St. Francis' Greenwood Imaging Center (the "Imaging Center") with a .5 FTE schedule (
In May 2015, Rose obtained a note from her physician, Kenneth Young ("Dr. Young"), indicating Rose required some work restrictions. Dr. Young directed Rose to limit her walking and standing, elevate her legs as much as possible, and wear support hose (
In August 2015, Dr. Young issued another work restriction note, indicating the same limitations were in place for Rose and that the limitations should be extended for another three months (
In September 2015, a .8 FTE Patient Access position became available at the Hospital. The position was a "set schedule" position. Rose applied for this position while still working in the .5 FTE position in the Imaging Center. The responsibilities of this .8 FTE position were the same duties Rose performed in her Patient Access registrar position, only this new position required more hours (
On September 25, 2015, Oliphant contacted Dr. Young's office at the request of Franciscan's Director of Patient Access, Sharla Rhodes ("Rhodes"). They needed clarification regarding the work restriction described in Dr. Young's note (
When Oliphant called Dr. Young's office to obtain clarification she was not provided with any information about the restriction (
Dr. Young's staff never instructed Rose to come to their office to sign a HIPAA release. Rather, they told Rose that they would take care of it and ask St. Francis for a release. Rose also was not asked by anyone at St. Francis to sign a HIPAA release. Id.
(
After the telephone call with Rose, Dr. Young's staff called Oliphant and explained, "We cannot discuss anything on behalf of [Rose] with [you] unless [Rose] releases in writing that we can talk to [you]." (
In the following weeks, Rose made several attempts to follow up on the status of the open position. On September 30, 2015, she emailed Oliphant to ask if there was "any word" on the position (
On October 8, 2015, Oliphant sent a response email only to Ball and explained that Dr. Young's office would not provide clarification about the work restriction and that Rose was not planning to leave her position at the Imaging Center, which would result in her working more than.8 FTE. Oliphant asked Ball if they needed to talk with Human Resources, and Ball asked Oliphant to contact Human Resources to get guidance on the situation (
Human Resources informed Ball and Rhodes that they needed to comply with Dr. Young's restrictions for Rose in relation to all of Rose's positions, not just the .8 FTE position for which Rose applied (
On October 19, 2015, Sherri Clark ("Clark"), a human resources generalist, called Rose and left a voicemail message for her (
On October 22, 2015, Ball spoke with Rose and explained that the Hospital could not work her more than a .3 FTE position based on her doctor's restriction because of her other .5 FTE position in the Imaging Center. Ball further informed Rose that she could not be given the .8 FTE position, but she would be kept on in her PRN status. She also told Rose that the Hospital could work her more hours if the doctor's restrictions were lifted (
Dr. Young issued another note continuing Rose's same work restrictions in February 2016 (
On September 18, 2015, Rose filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging that Franciscan discriminated against her on the basis of her disability from May 2015 through September 2015. Rose alleged that the disability discrimination occurred after she provided a doctor's note in May 2015, which limited her walking and standing, and Franciscan unilaterally moved her from the Patient Access registrar position to the triage position and changed her status to PRN (
On November 25, 2016, Rose filed this lawsuit, asserting a claim against Franciscan for disability discrimination under the ADA (
The purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 106 S.Ct. 1348 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "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." Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Zerante, 555 F.3d at 584 (citation omitted). "However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted). "The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence." Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
"In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). "[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).
The Court views the designated evidence in the light most favorable to Rose, as the nonmoving party and draws all reasonable inferences in her favor. Bright v. CCA, 2013 U.S. Dist. LEXIS 162264, at *8 (S.D. Ind. Nov. 14, 2013). "However, employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are obliged in our adversary system to scour the record looking for factual disputes." Id. at *8-9 (citation and quotation marks omitted).
Franciscan argues that it is entitled to summary judgment on Rose's ADA claim because Rose was not a "qualified individual" with a disability to be able to support her claim, Rose caused a breakdown in the interactive process, there is no evidence to support the elements of a disability discrimination claim, and Franciscan had a legitimate non-discriminatory reason for not offering Rose the .8 FTE position. Franciscan also asserts that some of the facts and evidence that Rose offers fall outside the scope of the EEOC charge and thus cannot be considered by the Court. Rose argues that the evidence supports her ADA claim, and she asserts that some of Franciscan's evidence should not be considered because it is inadmissible. The Court will address the parties' arguments in turn.
In her Response Brief, Rose asks the Court to disregard some of the evidence from her medical record that has been designated by Franciscan. She asserts,
(
Franciscan responds that Rose ironically relies on her medical records when they support her position but then asserts that the records are inadmissible hearsay when she believes the records do not support her position. Franciscan argues that the medical records, and specifically the statement Rose seeks to exclude, are not hearsay.
Franciscan asserts that the statements in the Rose's medical records are not hearsay. They explain that the instruction from Rose to Dr. Young's staff to not provide information to Franciscan was simply an instruction that carries no hearsay implications because "[i]nstructions to an individual to do something are . . . not hearsay." United States SEC v. Berrettini, 2015 U.S. Dist. LEXIS 115963, at *33 (N.D. Ill. Sep. 1, 2015). Franciscan argues that Rose's statement is not hearsay under Federal Rule of Evidence 801(d)(2)(A) because it is a statement of a party opponent. See Mitchell v. Iowa Interstate RR, Ltd., 2010 U.S. Dist. LEXIS 51474, at *4 (C.D. Ill. May 25, 2010) ("To the extent that the records contain a reporting of what Plaintiff told his treating physicians, they may also constitute admissions of party opponent, thereby falling out of the definition of hearsay altogether."). Franciscan also asserts exceptions to the hearsay rule that allow the Court to consider the evidence challenged by Rose—present sense impression (Rule 803(1)), statement made for medical diagnosis or treatment (Rule 803(4)), records of regularly conducted activity (Rule 803(6)), and the residual catch-all exception (Rule 807).
Rose seeks to exclude from the Court's consideration the statement documented in her medical record that "[Rose] stated she . . . doesn't want us to tell them anything." (
Rose also seeks to exclude from the Court's consideration Franciscan's assertion that it has an employment policy of not hiring its employees above the 1.0 FTE status. This assertion is used by Franciscan to argue that Rose still would not have been offered the .8 FTE position even if she was not barred from the position by her own doctor's work restrictions. This assertion is supported by affidavits from Rhodes and Pamela Jones ("Jones"), general counsel to Franciscan (
Rose argues that the Court should disregard this assertion because Franciscan never disclosed it during discovery and never previously relied on it as a basis to deny her the .8 FTE position. Franciscan never raised the assertion as a defense with the EEOC. Because the assertion was raised after the close of discovery, and the affidavits from Rhodes and Jones came after discovery, Rose asserts that she is unfairly prejudiced by the untimely, new assertion from Franciscan. Similarly, she argues that Franciscan appears to raise a mixed motive defense in its summary judgment brief, and Franciscan failed to raise the affirmative defense in its Answer, and thus, it has forfeited its opportunity to raise such a defense at this stage of the litigation.
Franciscan responds that it is not using its employment policy of a 1.0 FTE "ceiling" as an independent basis for denying Rose the .8 FTE position. Rather, it is used to show the Imaging Center falls under Franciscan's umbrella for business and policy purposes as well as to provide additional background information on why Franciscan was trying to get clarification from Dr. Young's office. Thus, Franciscan argues, it was harmless that the 1.0 FTE policy was not raised earlier. Concerning the discovery issue, Franciscan also points out that Rose chose not to depose Rhodes during discovery. Franciscan does not respond to the merits of Rose's mixed motive argument but simply notes that it asserted the mixed motive affirmative defense as an "alternative argument" and "out of an abundance of caution."
Based on the Court's determination of the other issues raised in the summary judgment motion as discussed below, the Court finds it unnecessary to address and resolve the merits of the belated mixed motive affirmative defense and the belated assertion that Franciscan has an employment policy of not hiring its employees above the 1.0 FTE status. However, the Court notes that it is not taking into consideration Franciscan's belated assertions in determining the propriety of summary judgment.
Franciscan asks the Court to strike, or alternatively, to not consider any facts or allegations presented by Rose that are time barred by the ADA statute of limitations or that are barred as a result of Rose's failure to exhaust administrative remedies with the EEOC. Before filing a lawsuit under the ADA, a plaintiff must file a charge of discrimination with the EEOC within 300 days of the discriminatory employment action. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1); Miller v. UPS, 2008 U.S. Dist. LEXIS 3753, at *7-8 (S.D. Ind. Jan. 15, 2008). Failure to first present the discrimination claim to the EEOC bars the claim from court. Plaintiffs may bring claims for discriminatory conduct that occurred during the 300-day window stretching back from the date the EEOC charge was filed, and thus, conduct falling outside this 300-day window is not actionable. AMTRAK v. Morgan, 536 U.S. 101, 113 (2002).
Rose filed her initial charge of discrimination with the EEOC on September 18, 2015, and her amended charge on December 9, 2015. Thus, Franciscan asserts, any alleged discriminatory conduct that occurred before November 22, 2014, is time barred. Franciscan argues that Rose's EEOC allegation that she was involuntarily converted from a .2 FTE registrar to a PRN registrar in September 2014 when she started her second position in the Imaging Center is time barred.
Similarly, Franciscan argues that the Court should disregard any allegedly discriminatory conduct that occurred after December 9, 2015, the date of Rose's amended EEOC charge of discrimination. A condition precedent to filing suit for a discriminatory act under the ADA is that the plaintiff file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act and that the EEOC issue a right-to-sue letter. Miller, 2008 U.S. Dist. LEXIS 3753, at *7-8; Conner v. Illinois Dep't of Nat. Res., 413 F.3d 675, 680 (7th Cir. 2005). Any claims asserted in court must be within the scope of the charges filed with the EEOC. "[A]n aggrieved employee may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances of discrimination." Conner, 413 F.3d at 680.
Franciscan argues that the Court should not consider Rose's allegations in her interrogatory response—that she believes she was discriminated against because she was denied work shifts through June 2016 and denied a job position in February 2016—because these allegations of purported discriminatory conduct were not (and could not have been) presented to the EEOC in Rose's December 2015 charge. Allegations that Rose was denied shifts through June 2016 and a job position in February 2016 were not presented to the EEOC, and thus, Rose has failed to exhaust administrative remedies for these discrete actions.
Rose did not respond to Franciscan's arguments concerning the ADA statute of limitations and exhaustion of administrative remedies. Franciscan's arguments are well-taken and supported by case law and the evidence. Accordingly, the Court limits its consideration of Rose's ADA claim to those instances of alleged discrimination that occurred between November 22, 2014, and December 9, 2015.
Franciscan argues that summary judgment is appropriate because Rose was not a "qualified individual" with a disability, and she caused a breakdown in the interactive process. Franciscan further argues that there is no evidence to support the elements of a disability discrimination claim, and Franciscan had a legitimate non-discriminatory reason for not offering Rose the .8 FTE position.
Under the ADA, employers are prohibited from "discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The Seventh Circuit has recently explained the scope of the ADA:
Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017).
To support her claim for disability discrimination, Rose must show, "(1) she is disabled; (2) she is otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) her employer took an adverse job action against her because of her disability or without making a reasonable accommodation for it." Basden v. Prof'l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013). Franciscan acknowledges that Rose satisfies the first element—she is disabled. However, Franciscan argues, Rose cannot meet the second and third elements of her ADA claim.
Franciscan argues, "Rose is unable to carry her burden of establishing that she was a qualified individual who could perform the essential functions of the 0.8 FTE Patient Access Representative job that she applied for in August/September 2015 either with or without a reasonable accommodation." (
Franciscan then asserts, "As in many ADA cases, liability thus turns on the accommodation question: Did [Franciscan] violate the ADA by failing to reasonably accommodate [Rose's] disability?" Severson, 872 F.3d at 480. "Identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process. Both parties are responsible for that process." Brown v. Milwaukee Bd. Of School Directors, 855 F.3d 818, 821 (7th Cir. 2017) (citations omitted).
Id. (citations and quotation marks omitted).
Franciscan argues that Rose is guilty of not only failing to provide information to determine an accommodation but also of actively obstructing Franciscan's ability to obtain such information. Franciscan explains that Rose not only failed to provide information to clarify whether Dr. Young's work restriction to .8 FTE status applied to all of Rose's positions, but she also affirmatively directed Dr. Young's office to not provide this clarifying information to Franciscan. Franciscan asserts that Rose was responsible for the breakdown in the good faith interactive process, and thus, it cannot be held liable for Rose's ADA claim.
Furthermore, Franciscan explains, it communicated to Rose multiple times through Ball and Clark its understanding that Dr. Young's work restriction of .8 FTE applied to all positions, including the Imaging Center position. Rose never tried to correct Franciscan's understanding of Dr. Young's work restriction. Rather than providing clarifying information that Dr. Young's restriction applied only to the position for which she applied, Rose contended with Franciscan that her Imaging Center position fell under a different human resources department and was a separate entity. Again, Franciscan asserts, Rose caused a breakdown in the interactive process.
Rose responds that she was a "qualified individual" for the .8 FTE position because her supervisor, Oliphant, explained the position required an ability to ambulate through the triage department and to work eight shifts every two weeks. Dr. Young's note explained that she could fulfill these two requirements. Thus, Rose asserts, she is a qualified individual. She argues that Franciscan misread Dr. Young's work restriction note, and "[t]hat defendant was mistaken as to the doctor's meaning does not alter the fact she was qualified to perform the essential functions of the position." (
Rose further responds that Franciscan did not engage in the interactive process in good faith. When Rose asked what the doctor's note would need to say for her to apply for the new position, Oliphant responded in an email, and Dr. Young's work restriction note nearly mirrored the language in Oliphant's email. Rose then explains that Franciscan ignored HIPAA laws and tried to informally obtain more information from Dr. Young's office knowing that such an attempt would be unfruitful because of HIPAA laws. After being denied the clarifying information, Franciscan never sought a HIPAA release from Rose to obtain information from Dr. Young. Based on representations by Dr. Young's staff, Rose believed that the doctor's office would take care of any HIPAA release. Rose additionally asserts that she did not think she could personally obtain the clarifying information and then provide it to Franciscan. And Franciscan never asked Rose to clarify the work restriction.
Pointing to her medical records, Rose additionally argues that Dr. Young's office informed Franciscan that it would provide the clarifying information that Franciscan sought if it provided a HIPAA release (
Rose also asserts that she sent follow-up emails to Franciscan to check on the status of the job position, and she asked if Franciscan had everything it needed from Rose and Dr. Young's office (
Rose denies ever instructing anyone at Dr. Young's office to "refuse to cooperate" with Franciscan. When Dr. Young's staff called Rose to explain that they had received a telephone call from Oliphant about the work restriction, Rose was unhappy that Oliphant had not first asked her for permission to call her doctor. She admits that she insisted that Dr. Young's office protect her HIPAA rights before releasing any information. Rose contends that the breakdown in the interactive process was caused by Franciscan, and Franciscan should have done more to obtain a HIPAA release and to obtain clarifying information if it really needed clarification. She argues that she participated in the interactive process in good faith and was a qualified individual for the.8 FTE position.
Franciscan argues that the designated evidence shows it cannot be blamed for the breakdown in the interactive process in seeking to obtain clarifying information regarding Dr. Young's work restriction. Franciscan asserts, it fulfilled its obligation to participate in good faith in the interactive process as follows: First, Oliphant called Dr. Young's office on September 25, 2015, to seek clarification. Second, Clark called Rose about the work restriction and left a voicemail message on October 19, 2015. Third, Clark talked with Rose on the phone about the .8 FTE work restriction on October 20, 2015. Fourth, Clark communicated with Rose via email on October 20, 2015 about the Franciscan "umbrella" covering both positions and the .8 FTE restriction. Fifth, Clark communicated with Rose via email on October 21, 2015 about the Hospital and Imaging Center both falling under the Franciscan umbrella and her .8 FTE work restriction pursuant to her doctor's note. Sixth, Ball talked with Rose on the telephone on October 22, 2015 about her doctor's .8 FTE work restriction and her various options of continuing to work under a PRN status, quitting the .5 FTE Imaging Center position to allow her to work the .8 FTE position, or having her work restrictions lifted by her doctor to allow her to work more hours.
Franciscan points out that each of these communications between it and Rose presented an ideal opportunity for Rose to provide the clarifying information about Dr. Young's work restriction, yet Rose never provided that information to Franciscan, and she did not authorize Dr. Young's office to provide the information. She could have easily explained that Dr. Young's .8 FTE work restriction applied only to the position for which she applied and not also to the Imaging Center position. However, instead of simply giving that clarifying information, Rose argued with Franciscan's employees that the Imaging Center and Hospital were separate entities with separate human resources departments.
Franciscan argues that the cases Rose relies on actually support Franciscan's position. Rose relies on three cases for the proposition that an employer must make a reasonable effort to seek an explanation or clarification if it has questions about a medical diagnosis or accommodation request. See Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014); Miller v. Ill. Dep't of Corr., 107 F.3d 483, 486 (7th Cir. 1997); Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281 (7th Cir. 1996). Franciscan agrees with this proposition and asserts that its many efforts satisfied the obligation to seek explanation or clarification.
Franciscan notes that where a plaintiff had access to the needed clarifying information, and the plaintiff did not provide that information, then the plaintiff is responsible for the breakdown in the interactive process and the employer cannot be held liable. See Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1136 (7th Cir. 1996) ("Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the [interactive] process."); see also Brown, 855 F.3d at 821-26; Steffes v. Stepan Co., 144 F.3d 1070, 1072-73 (7th Cir. 1998). Franciscan contends that Rose had the needed clarifying information but did not provide it, and thus, she was responsible for the breakdown in the interactive process. She was not a qualified individual and, therefore, her ADA claim must be dismissed.
The Court determines that Rose "failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions. [Franciscan] accordingly cannot be held liable for failing to put her in a position it believed would exceed those restrictions." Brown, 855 F.3d at 826 (citation and quotation marks omitted).
Rose applied for a position that she wanted, and it was her missing medical information that was holding up the process to allow her to receive the new position. She had access to that information and the ability to authorize the release of that information, but she failed to communicate that information or authorize her doctor to communicate that information to Franciscan. During the interactive process, Franciscan informed Rose of various options as to how to obtain the position she sought or how to obtain more work hours, but she chose not to pursue those options. Instead, she consistently insisted that the Imaging Center and the Hospital were separate entities with separate Human Resources departments, while not simply explaining to Franciscan that Dr. Young's work restriction applied only to the job position she was seeking.
Wanting to work more hours, Rose informed Dr. Young's office that "she is going to work at St. Francis emergency room 8 days every two weeks . . . and at Greenwood Imaging. . . . She said she has to work these hours. She doesn't want us to tell them anything." (
Understandably trying to downplay the impact of these words—"[s]he doesn't want us to tell them anything"—Rose construes her directions to Dr. Young's staff in various ways. She avers in her affidavit, "I never instructed anyone at Dr. Young's office to refuse to cooperate with St. Francis. Rather, I wanted to be sure that I knew what medical information was being sought and that a HIP[A]A release was on file." (
The evidence indicates that Oliphant and Ball did not promptly respond to several of Rose's emails asking for an update on the status of the open position and whether they needed additional information. However, this same evidence also indicates that during this time period they were seeking direction from the Human Resources department concerning the situation. Once direction was provided by Human Resources, Ball and Clark (from Human Resources) each communicated with Rose about the work restriction and her various options.
While Rose asserts that Dr. Young's office told Franciscan that it would provide the clarifying information that Franciscan sought if Franciscan provided a HIPAA release, the evidence on which Rose relies states the opposite. Dr. Young's staff informed Franciscan, "We cannot discuss anything on behalf of [Rose] with [you] unless [Rose] releases in writing that we can talk to [you]." (
As the Court has explained above, the evidence shows that Rose failed to fulfill her obligations in the interactive process by clarifying the extent of her medical restrictions, and Franciscan cannot be held liable for failing to put her in a position it believed would exceed those restrictions. Based on Dr. Young's work restriction note, Franciscan believed that Rose was limited to working in a .8 FTE status. Because Rose already was working in a .5 FTE position that she did not want to give up, Franciscan determined that Rose was not a qualified individual for the .8 FTE position for which she applied. Providing that second job position would have caused Rose to have a 1.3 FTE status and to exceed her .8 FTE work restriction prescribed by Dr. Young. Summary judgment in favor of Franciscan is appropriate because Rose was not a "qualified individual," and she caused the breakdown in the interactive process.
Even if Rose could show by the designated evidence that she was a qualified individual with a disability and that she did not cause the breakdown in the interactive process, summary judgment still would be appropriate in this case because the evidence does not support the elements of an ADA claim.
To support an ADA claim, a plaintiff must show, "(1) she is disabled; (2) she is otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) her employer took an adverse job action against her because of her disability or without making a reasonable accommodation for it." Basden, 714 F.3d at 1037.
A plaintiff may establish a prima facie case of disability discrimination by showing: "(1) [s]he is disabled under the ADA; (2) [s]he was meeting [her] employer's legitimate employment expectations; (3) [s]he suffered an adverse employment action; and (4) similarly situated employees without a disability were treated more favorably." Dickerson v. Bd. of Trs., 657 F.3d 595, 601 (7th Cir. 2011). Upon such a showing, the defendant must "identify a legitimate, nondiscriminatory reason for its employment decision," and if the defendant satisfies this requirement, the plaintiff must then "prove by a preponderance of the evidence that the defendant's reasons are pretextual." Id.
Regardless of whether a plaintiff uses the direct method of proof, indirect method, or both methods to support their claim, the legal standard "is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action." Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). "Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the `direct' evidence does so, or the `indirect' evidence. Evidence is evidence." Id. "Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled `direct' or `indirect.'" Id. The sole question that matters is whether a reasonable juror could conclude that the plaintiff would not have suffered the adverse employment action if she was not disabled and everything else had remained the same. See id. at 764; Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997); Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994).
Franciscan argues there is no direct or circumstantial evidence that suggests a discriminatory motive for not allowing Rose to have the .8 FTE position for which she applied. There is no evidence that the position was not offered because of Rose's disability. Additionally, Franciscan asserts that Rose has no evidence of similarly situated employees without a disability who were treated more favorably than Rose. Franciscan notes that it offered a legitimate, nondiscriminatory reason for not offering the .8 FTE position to Rose—her doctor limited her work to .8 FTE status and she already was working another .5 FTE position—and Rose cannot show that this reason was a pretext for Franciscan's discriminatory conduct.
As it relates to the issue of pretext, Franciscan asserts the evidence shows it honestly believed Dr. Young's work restriction limited Rose to .8 FTE status inclusive of all her positions, including the .5 FTE Imaging Center position. Franciscan argues that, at most, the evidence shows Franciscan was mistaken in its understanding of Dr. Young's note, and Franciscan points out that "pretext . . . is a deliberate false-hood. An honest mistake, however dumb, is not [pretext], and if there is no doubt that it is the real reason it blocks the case at the summary-judgment stage." Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006) (citations omitted).
In response, Rose argues Franciscan's proffered reason for not offering her the .8 FTE position was a pretext for discrimination. She asserts that nobody at Franciscan pursued obtaining a HIPAA release to seek clarification from Dr. Young's office regarding the work restriction. Rose asserts that nobody directly asked her for clarification about the work restriction. Instead, Franciscan employees told Rose in conclusory fashion that the work restriction applied to all her positions, including the Imaging Center position. Rose argues that Dr. Young admitted in his deposition that Franciscan's interpretation of his note was a mistaken assumption, and he would have corrected that misinterpretation if a HIPAA release had been provided.
Rose argues that pretext also can be drawn from Franciscan's shifting explanation about its understanding of the .8 FTE work restriction, where Oliphant asserted Dr. Young would not clarify what the restriction applied to and Jones, in her EEOC response statement, asserted that Dr. Young confirmed the restriction applied to all positions held by Rose (see
Regarding similarly situated employees without a disability being treated more favorably, Rose notes that the position for which she applied was given to Mary Ann Whitney, a fellow Franciscan coworker. Rose asserts:
(
Franciscan replies that Rose fails to meet her burden of showing a comparator employee because "[o]ther than identifying Whitney by name, Rose fails to come forward with any other admissible evidence of how Whitney was similarly situated to Rose or how Whitney received systematically received [sic] better treatment." (
The Court determines that Rose has not presented sufficient evidence to support the element of a similarly situated employee to survive summary judgment. Rose has presented only speculation and guesswork that does not provide adequate evidence to show comparator employees without a disability received better treatment.
Regarding the issue of pretext, the Court agrees with Franciscan that Rose has not come forward with evidence to show that its proffered reason for not offering Rose the .8 FTE position was a lie or deliberate falsehood. Rose argued that Franciscan should have been more diligent in obtaining a HIPAA release to seek clarification from Dr. Young's office, and nobody directly asked her for clarification about the work restriction. Rather, Franciscan employees told Rose in "conclusory fashion" that the work restriction applied to all her positions. This does not show that Franciscan lied about its reason for not offering Rose the position. Instead, this shows that Franciscan determined that Dr. Young's work restriction applied to all of Rose's positions after it could not initially get clarification from Dr. Young. Then Franciscan consistently followed its interpretation that the restriction applied to all of Rose's positions.
While Jones incorrectly represented in Franciscan's EEOC response statement that Dr. Young had confirmed the work restriction applied to all positions held by Rose, Franciscan has provided competent evidence that Jones' statement was an honest mistake because she failed to communicate with employees more directly involved in Rose's situation (see
Importantly, Jones' misstatement about Dr. Young confirming the work restriction does not cast doubt on, conflict with, or change the underlying reason provided by Franciscan for why it did not offer the .8 FTE position to Rose. Franciscan's reason was that Dr. Young's work restriction limited Rose to .8 FTE status, she already was working in a .5 FTE position, and the restriction applied to all of her positions. Jones similarly stated that the .8 FTE work restriction applied to all of Rose's positions, albeit, incorrectly stating the Dr. Young confirmed such. There is no evidence that indicates Franciscan's legitimate, non-discriminatory reason for not offering the .8 FTE position to Rose was a pretext for any discriminatory conduct.
For the foregoing reasons, Defendant Franciscan Alliance, Inc.'s Motion for Summary Judgment (
