Opinion
IP 99-0848-C-M/S.
January 1, 2001.
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendant Wal-Mart Stores, Inc.'s ("Wal-Mart") motion for summary judgment on plaintiff Diana Johnson's ("Johnson") claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and Indiana law for conversion and retaliatory discharge. After reviewing the parties' briefs, the Court has concluded that Johnson has failed to raise an issue of material fact with respect to her ADA and conversion claims, and that Wal-Mart is entitled to summary judgment. Accordingly, the Court GRANTS Wal-Mart's motion for summary judgment and DISMISSES with prejudice Johnson's ADA and conversion claims. The Court also relinquishes its jurisdiction over Johnson's remaining state law claim for retaliatory discharge, and DISMISSES it without prejudice.
I. FACTUAL BACKGROUND
Wal-Mart is a corporation incorporated in Delaware. It has an optical laboratory in Crawfordsville, Indiana, that manufactures eyeglass lenses. Wal-Mart hired Johnson in the fall of 1994 to work in its photo laboratory. In February 1995, Wal-Mart transferred Johnson to the optical laboratory due to a layoff from the photo laboratory. Wal-Mart later transferred her to the production/polishing area of the optical laboratory in November 1995. Johnson received standard evaluations of her performance and raises commensurate with these evaluations throughout her employment at Wal-Mart.
On December 27, 1995, Johnson reported to Personnel Coordinator Jane Jent that she had been having pain in both wrists for approximately one month. Jent completed an "Employer's Report of Injury" form and sent Johnson to see Dr. Roberts, who diagnosed her with bilateral wrist tendinitis. Dr. Roberts returned Johnson to work with restrictions of "no wrist flexion/extension on a repetitive basis or repetitive gripping, until follow-up." On January 19, 1996, Dr. Roberts once again saw Johnson. She maintained the same restrictions, and was subsequently referred to Dr. Cliff Hornback, an orthopedic surgeon. Dr. Hornback saw Johnson in January and February of 1996, diagnosing her with symptoms of carpal tunnel syndrome and prescribing wrist splints. On February 5, 1996, Johnson returned to Dr. Hornback who diagnosed her with de Quervain's tenosynovitis along with carpal tunnel syndrome, and he medically restricted her to "no repetition motion and lifting greater than two (2) pounds" for three weeks. On February 19, 1996, Dr. Johnson diagnosed Johnson with "repetitive stress syndrome, clinical early carpal tunnel syndrome," and released her to return to work without any restrictions.
In late December 1995, Johnson filed for and received worker's compensation benefits.
Tenosynovitis is defined as "[i]nflammation of a tendon and its enveloping sheath." stedman's medical dictionary 1771 (26th ed. 1995).
From February to August 1996, Dr. Richard Trioano, a hand surgeon, treated Johnson. On February 21, 1996, Dr. Troiano confirmed Dr. Hornback's diagnosis and found that Johnson suffered from right carpal tunnel syndrome and de Quervain's syndrome. She was taken off work until February 23, 1996, and instructed to try to avoid wearing wrist splints. Johnson received a steroid injection and returned to work on February 23, 1996, with no medical restrictions. On February 28, 1996, Johnson was again released to return to work without restrictions, but was instructed to wear the wrist splints as much as possible. On a follow-up visit on March 6, 1996, Dr. Troiano scheduled surgery for March 13, 1996, but returned Johnson to her regular duties. Although she apparently was scheduled for surgery on March 13, 1996, Johnson claims that Dr. Troiano actually performed surgery on her right hand in an attempt to correct the carpal tunnel syndrome on March 11, 1996. In any event, the parties agree that Dr. Troiano released her to return to work on March 13, 1996, and limited her to left-handed work only with "non-repetitive no more than 2 cycles/minute on left hand and no repetitive work on left hand."
On March 18, 1996, Dr. Troiano prescribed additional restrictions of "left hand work only and no repetitive work with either right or left hand." A week later, Dr. Troiano restricted her to "left hand work only and no repetitive work with left hand." On April 1, 1996, Johnson underwent carpal tunnel release surgery on her left hand. Johnson was on medical leave until April 3, 1996, to recuperate from her surgery. Dr. Troiano then postponed her release date until April 15, 1996. On April 15 and April 29, 1996, Johnson again visited Dr. Troiano, who decided to release her to return to work on May 13, 1996. Dr. Troiano examined Johnson on May 13, 1996, and returned her to work with the added restrictions of "right hand work only, 10 pound lifting limit with right hand, and no more than 2 cycles/minute." Johnson finally returned to work at the Crawfordsville facility on May 15, 1996.
In May and June 1996, Johnson again saw Dr. Troiano. He maintained her medical restrictions of "10 pound lifting limit and no more than 2 cycles/minute," and instructed her to wear a thumb spica splint as needed. On June 24, 1996, Dr. Troiano prescribed permanent restrictions of "10 pound lifting limit, no repetitive work (greater than 2 cycles/minute) and work at own pace." On August 5, 1996, Dr. Troiano diagnosed Johnson with bilateral hand pain and numbness. He took Johnson off work for seven days and recommended an evaluation with Dr. Patrick Reibold. Dr. Reibold examined Johnson that same day. On August 26, 1996, Dr. Troiano returned Johnson to work with the same permanent restrictions.
Until her surgery, Johnson had worked as a finer and polisher. After her surgery in May 1996, Johnson returned to work as a polisher. Shortly thereafter, Wal-Mart assigned her to the glass department where there was a position in "tools" that was available that would allow her to stay within her restrictions. According to Johnson, to allow her to work within her restrictions the polisher was supposed to carry the tools to her table. Johnson apparently was not supposed to be required to carry more than a half-bucket of tools at a time. Despite this restriction, her supervisor, Brian Butler, required her to carry more than ten pounds under threat of "getting a write up." Matt Jackson, supervisor of the glass department, then decided that Wal-Mart would no longer accommodate Johnson in that position and assigned her to a "job tracker" position in the optical department. Wal-Mart allegedly did this in an effort to accommodate Johnson's worker's compensation injury and medical restrictions. Wal-Mart created this position to relieve the facility's backlog of optical orders.
According to Wal-Mart, it had to coach Johnson on two separate occasions for working outside her medical restrictions.
The following year, Johnson encountered more physical problems. She went on a medical leave of absence from March 24 to April 7, 1997, after complaining of migraine and tension-type headaches, which were unrelated to her diagnosis of carpal tunnel syndrome and de Quervain's syndrome. Upon her return from medical leave, Wal-Mart placed Johnson in the position of job tracker to accommodate her worker's compensation injury and her medical restrictions.
In early May 1997, Johnson claimed that her hands began to hurt again. She had recurring symptoms of cramping and prickly sensation in her hands; her hands were cold; and she had pain in her shoulders. Johnson informed her supervisor of the problem, and her supervisor reported her symptoms to management on or around April 1, 1998. It is not clear exactly when Johnson informed her supervisor of the problem. Although Johnson apparently began having pain in her hands in May 1997, the parties do not explain why her supervisor did not report her symptoms to management until almost one year later.
That same spring, Wal-Mart's management decided to reduce staff at the facility as a result of a decrease in available work. Jeff Grumbling, the facility director, issued a directive to management to reduce staff. A plan was implemented utilizing the following criteria: (1) elimination of non-essential positions that did not impact production; and (2) termination of those employees with a history of poor work performance. Because Wal-Mart considered Johnson's position to be non-essential and one that did not impact production, it eliminated her position and terminated her employment. Wal-Mart terminated three other employees pursuant to the workforce reduction plan because of their poor performance. None of these three employees had a known disability at the time of his or her termination. According to Johnson, Wal-Mart supervisor Cathy Waldon told her that "We feel that we cannot stay within your limitations anymore." Wal-Mart added the duties of Johnson's position to the existing duties of the remaining customer service employees. Johnson was unaware of any vacant positions for which she was qualified to perform at the time of her termination.
Johnson believes that Wal-Mart actually filled her position with employees from a temporary agency. Johnson has no personal knowledge that this was the case, however, and instead relies upon statements from her friends at Wal-Mart. These statements are inadmissible hearsay and the Court will not consider them in ruling on Wal-Mart's motion for summary judgment. Johnson also believes that there was an available position involving "picking lenses" that would not have violated her restrictions. It appears, however, that the person in that position was on medical leave and was to return to that position in the future.
Johnson claims that she is completely unable to perform any job, "in the universe of jobs," and that she has been unable to work since the day of her termination. Johnson applied for Social Security disability benefits on November 24, 1998. On February 2, 2000, the Social Security Administration found Johnson to be disabled for purposes of receiving disability insurance benefits commencing May 15, 1998.
Johnson filed this complaint alleging claims under the ADA and under Indiana law for retaliatory discharge and conversion. In its motion for summary judgment, Wal-Mart noted that there was no evidence that it appropriated Johnson's personal property for its own use and benefit and that as a result, Johnson's conversion claim fails as a matter of law. Johnson did not dispute this in her response brief — indeed, she did not even address the issue — so the Court will GRANT Wal-Mart's motion with respect to the conversion claim and DISMISS it with prejudice. The Court will now address the parties' arguments with respect to Johnson's other claims.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. ADA STANDARDS
The ADA proscribes employers from discriminating against:
a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.42 U.S.C. § 12112(a). A "disability" for purposes of the ADA includes "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). In addition, a qualified individual is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
Discrimination under the ADA may take the form of a failure to accommodate an employee's disability or disparate treatment of a disabled employee in regard to employment decisions, including discharging a disabled employee because of her disability. Wininger v. General Electric Appliances, 2000 WL 1876505, *5 (S.D.Ind. December 22, 2000). In her complaint, Johnson asserted two different ADA claims: (1) that Wal-Mart failed to accommodate her disability; and (2) that Wal-Mart terminated her because of her disability.
In the absence of direct evidence of disability discrimination, Johnson must proceed under the familiar McDonnell-Douglas burden-shifting method of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this method, Johnson first must establish a prima facie case of discrimination by Wal-Mart, which creates a presumption of intentional discrimination. Because Johnson's termination occurred during a reduction-in-force ("RIF"), the elements she must meet to establish a prima facie case are as follows: (1) she was a member of the protected class; (2) she was adequately performing her job; (3) she was laid off in a RIF; and (4) employees outside the protected class were treated more favorably. Cable v. Ivy Tech State College, 200 F.3d 467, 478 (7th Cir. 1999).
The Seventh Circuit has defined direct evidence as evidence which, "if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption." Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1290 n. 6 (7th Cir. 1997). See also Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 629 (7th Cir. 1996) (offering as an example of direct evidence an employer's statement "I did not hire you because you are a woman."). Johnson claims that a supervisor told her that "We feel that we cannot stay within your limitations anymore." Even assuming the supervisor made this comment, it is not as if Wal-Mart told Johnson it terminated her because of her disability. Because this comment is not direct evidence of discrimination, Johnson must proceed under the McDonnell-Douglas burden-shifting method of proof.
If Johnson establishes her prima facie case, the burden of production then shifts to Wal-Mart to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Once it does so, the inference of discrimination disappears and Johnson must prove by a preponderance of the evidence that Wal-Mart's proffered reason was a pretext for intentional discrimination. The ultimate burden to prove intentional discrimination remains with Johnson. Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000).
C. RETALIATORY DISCHARGE STANDARDS
Although Indiana has historically adhered to the employment at-will doctrine, the Indiana Supreme Court has recognized certain exceptions to the doctrine, one of which is a public policy exception applicable when an employee is discharged solely for exercising a statutorily conferred right. Frampton v. Central Indiana Gas Co., 297 N.E.2d 425, 428 (1973). The Frampton court held that an employee who alleges that he or she was discharged for filing a claim pursuant to the Indiana Worker's Compensation Act has stated a claim upon which relief can be granted. Id. To survive a motion for summary judgment on such a claim, Johnson must show more than a filing of a worker's compensation claim and the discharge itself. Instead, Johnson must present evidence that directly or indirectly supports the necessary inference of causation between her filing of a worker's compensation claim and her termination. Examples of indirect proof of retaliation include: (1) proximity in time between the two acts, and (2) an employer's proffered reason for termination which is patently inconsistent with the evidence before the court. Markley Enterprises, Inc. v. Grover, 716 N.E.2d 559, 564, 565 (Ind.App. 1999). With these standards in mind, the Court will now address the parties' arguments.
III. DISCUSSION A. JOHNSON'S ADA CLAIMS 1. Failure To Accommodate
Wal-Mart specifically moved for summary judgment on Johnson's failure to accommodate claim under the ADA. See Wal-Mart's Summary Judgment Brief at pp. 17-19. Johnson failed to respond to Wal-Mart's argument on that claim. Accordingly, she has abandoned that claim and Wal-Mart is entitled to summary judgment. See Gillespie v. City of Indianapolis, 13 F. Supp.2d 811, 826 (S.D.Ind. 1998), aff'd. 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000) (holding plaintiff abandoned claims by failing to respond to defendant's arguments in motion to dismiss), citing Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (plaintiff abandoned claim after failing to respond to argument in motion for summary judgment). As a result, the Court GRANTS Wal-Mart's motion for summary judgment on Johnson's failure to accommodate claim.
2. Disparate Treatment
Johnson also claims that Wal-Mart terminated her because of her disability. Again, Wal-Mart implemented a RIF during which it eliminated Johnson's position. Accordingly, to establish a prima facie case Johnson must show that (1) she was a member of the protected class; (2) she was adequately performing her job; (3) she was laid off in a RIF; and (4) employees outside the protected class were treated more favorably. Cable, 200 F.3d at 478. Wal-Mart contends that Johnson's case fails on the first and fourth prongs of this analysis.
Wal-Mart apparently does not contest — at least for summary judgment purposes — that Johnson may have had a disability as that term is defined under the ADA. Instead, Wal-Mart argues that Johnson cannot establish that she was a qualified individual with a disability because she testified in her deposition that she could not perform any jobs as of the date of her termination. Johnson's specific testimony was as follows:
Q: Can you work?
A: No.
Q: There's no job you can perform?
A: No.
Q: And when did you become unable to work at all?
A: The day that I was terminated.
Q: So from that day forward it's your testimony that there is no job in the universe that you can perform?
A: No.
Johnson Dep. at 133. While this admission is seemingly inconsistent with Johnson's claim that she was a qualified individual with a disability at the time of her termination and that she could perform her job with or without reasonable accommodation, the Court does not find this testimony to be dispositive. For example, despite Johnson's admission that she could not work any jobs, she did not testify about whether there were any accommodations that would allow her to perform any jobs at Wal-Mart or elsewhere in the "universe." Indeed, although it is not clear from Johnson's testimony, it is possible that she could have performed her job or other jobs with an accommodation.
Wal-Mart separately argues that on February 2, 2000, the Social Security Administration ("SSA") determined that Johnson was disabled as of May 15, 1998 — her termination date — and that she was entitled to Social Security Disability Insurance Benefits. Def.'s Ex. E. According to Wal-Mart, because Johnson apparently affirmed to the SSA that she was totally disabled, she should be estopped from now claiming that she is a qualified individual with a disability. At first blush, Wal-Mart's argument has some appeal. As the Seventh Circuit has noted, applying for Social Security Disability Benefits is not necessarily fatal to an employee's ADA claim, but it does require the employee to provide an explanation for her seemingly inconsistent positions:
A plaintiff may declare that she was totally disabled in her SSDI application, then declare that she was a qualified individual under the ADA, but she must show that this apparent inconsistency can be resolved with reference to variance between the definitions of `disability' contemplated by the ADA and SSDI. Thus, `a plaintiff's sworn assertion in an application for disability benefits that she is, for example, `unable to work' will appear to negate an essential element of her ADA case — at least if she does not offer a sufficient explanation.'Feldman v. American Memorial Life Ins. Co., 196 F.3d 783, 791 (7th Cir. 1999), citing Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 805 (1999). In this case, Wal-Mart submitted no evidence of what Johnson allegedly told the SSA. The Court can assume that she verified that she was totally disabled as of May 15, 1998, but it need not resolve this issue because even assuming Johnson is a qualified individual with a disability, her disparate treatment claim still fails as a matter of law.
Johnson has presented no evidence of similarly situated individuals outside the protected class that Wal-Mart treated more favorably. The protected class under the ADA encompasses "qualified individual[s] with a disability." DeLuca v. Winer Industries, Inc., 53 F.3d 793, 798 (7th Cir. 1995). Thus, Johnson must show that Wal-Mart treated similarly situated non-disabled employees more favorably during the RIF. The closest she comes is her assertion that Wal-Mart terminated fifteen other employees during the RIF, and that many — if not all — had worker's compensation injuries. This misses the mark. Johnson has not identified any of these other employees, so it is impossible to determine if they were truly similarly situated to Johnson. In addition, Johnson has made no attempt to explain how the fact that these other employees had worker's compensation injuries at some unidentified point in time establishes that they either were or were not disabled under the ADA. Without such information, the Court simply cannot determine whether Wal-Mart treated similarly situated employees outside the protected class more favorably. As a result, Johnson cannot establish a prima facie case of disability discrimination. The Court therefore GRANTS Wal-Mart's motion for summary judgment on Johnson's disparate treatment claim.
The Court notes that Johnson also failed to present any evidence that Wal-Mart's reason for the elimination of her position — which was done during a RIF that attempted, in part, to eliminate non-essential positions that did not impact production — was a pretext for discrimination. See Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) (to show pretext, plaintiff must present evidence that each proffered reason is either a lie or completely lacking a factual basis). In fact, Johnson did not address the issue of pretext in her summary judgment response brief. Because she failed to present any evidence that Wal-Mart lied about its reason for eliminating her position, Wal-Mart would be entitled to summary judgment on her disparate treatment claim on that basis, as well.
B. JOHNSON'S STATE LAW CLAIM FOR RETALIATORY DISCHARGE
Because the Court has dismissed Johnson's claims under the ADA, original jurisdiction is now lacking and the Court may properly dismiss Johnson's supplemental state law claim of retaliatory discharge pursuant to 28 U.S.C. § 1367(c)(3). Accordingly, the Court chooses to exercise its discretion under 28 U.S.C. § 1367(c)(3), and hereby DISMISSES without prejudice Johnson's state law claim for retaliatory discharge. Johnson should note that she has up to thirty days from the date of this order during which she may refile in the appropriate state forum. See 28 U.S.C. § 1367(d).IV. CONCLUSION
Johnson has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on her ADA claims and her state law claim for conversion. Accordingly, the Court GRANTS Wal-Mart's motion for summary judgment on those claims and DISMISSES them with prejudice. The Court also DISMISSES without prejudice Johnson's state law claim for retaliatory discharge.