Opinion
No. 99 C 3912
November 7, 2000
MEMORANDUM OPINION AND ORDER
This case is before the court on the Fed.R.Civ.P. 56 Motion for Summary Judgment brought by defendant Northwest Community Hospital. Lynne Lohr alleges age, gender and disability discrimination in violation of Title VII of the Civil Rights Act of 1964. Lohr's offer of employment was withdrawn because she refused to submit to an x-ray test to determine whether she suffered from tuberculosis. Therefore, we grant the motion for summary judgment and issue a judgment in favor of Northwest Community Hospital.
BACKGROUND
These facts are taken from Northwest's Statement of Undisputed Facts and Plaintiff's Objection to Defendant's Local Rule 56.1 Statement of Material Facts As to Which There is No Genuine Issue. Because plaintiff has failed to follow our Local Rules in submitting her own statement, we have encountering some difficulties in deciphering her version of the facts.
Northwest is a hospital. It maintains a Pastoral Services Department which ministers to patients and their families. Since 1992, the department has been directed by Reverend Dean Hokel. In May of 1998, plaintiff applied for an on-call chaplain position at Northwest. Plaintiff interviewed with Hokel. Hokel was impressed by Lohr's qualifications. At the conclusion of the interview, Hokel offered plaintiff an on-call chaplain position.
On May 26, 1998, plaintiff called Hokel because she was concerned that Northwest had not called to schedule her post-offer physical. Hokel apologized for the delay and told plaintiff he would expedite the physical if he could. He called the Human Resources Department to find out about the delay, and Human Resources scheduled the physical for June 29, 1998. Prior to her physical, plaintiff obtained a note from her chiropractor. In the note, he stated that he has never noticed symptoms of tuberculosis (TB). At the physical, plaintiff disclosed that she had skin tested positive for TB in 1995.
Dr. Deborah Foley, head of Northwest's Employee Health Department conducted the examination. During the examination, Foley told plaintiff that she would have to take a TB x-ray because of her positive skin test. Plaintiff stated that she could not take an x-ray because she "had too many x-rays." Plaintiff was offered the opportunity to reconsider or produce a recent x-ray. Plaintiff refused. Plaintiff was given a week to reconsider.
On that day, plaintiff went to Donna Krampert's office. Krampert is the secretary for the Pastoral Services Department. Plaintiff told Krampert that she wanted to see Hokel. Krampert stated that Hokel was not there, but she could speak to Alfred Merwald. Plaintiff declined and explained that she was in a bind" because she could not take another TB skin test and would not take an x-ray.
Several days later, plaintiff remembered that she had tested positive for TB in 1992 and not 1995, and that she had subsequently tested negative for TB in 1995. She called Foley, but Foley did not return her call. She called Hokel. Hokel stated "I'll see what I can do." Hokel believed plaintiff was enlisting his help in trying to get around Northwest's TB policy.
An employee called plaintiff and asked her to document her prior TB tests. The employee also asked plaintiff if she would consent to an x-ray if her skin test turned out positive. Plaintiff did not answer the question. The employee finally asked "would we hire you anyway?" Plaintiff called Krampert. Krampert asked plaintiff to send the prior TB test results. Plaintiff obtained a memorandum from the hospital, LaGrange Memorial Hospital. The memorandum purported to pertain to her 1992 and 1995 TB skin test. Plaintiff faxed the documents to Pastoral Services. No physician notes, records, or actual test results were attached to the LaGrange memorandum.
Plaintiff called Krampert again and Krampert stated that "It doesn't look good." Plaintiff repeated called Hokel, Krampert, recruiter John Bauer and various nurses regarding her status. People in the department began to view plaintiff as a "pest." Hokel also became concerned that plaintiff was attempting to circumvent Northwest's TB policy.
On July 9, 1998, plaintiff received a letter from Hokel stating that Northwest's employment offer had been rescinded. On December 29, 1998, plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission. In the charge, plaintiff contended that Northwest had discriminated against her because of her age, gender, disability, and illegally retaliated against her because she had opposed sex discrimination at a prior employer.
On June 14, 1999, plaintiff filed the instant four-count Complaint. In Count I, plaintiff alleges gender discrimination in violation of Title VII. Plaintiff alleges that Northwest was motivated by gender discrimination when it rescinded her offer of employment. In Count II, plaintiff alleges retaliation and gender discrimination in violation of Title VII. Plaintiff alleges that her offer of employment was rescinded because she filed a charge of discrimination against Northwestern Memorial Hospital. In 1989, plaintiff filed a charge with the EEOC alleging that she had been sexually harassed at Northwestern. At the time, Reverend Alfred Merwald was her supervisor. Plaintiff is alleging that Hokel consulted with Merwald after offering her a job and based on that alleged conversation decided to revoke the offer. In Count III, plaintiff alleges that she was the victim of discrimination in violation of the Americans with Disabilities Act. She alleges that she was discriminated against because of the perception that she suffered from tuberculosis. In Count IV, plaintiff alleges that she was the victim of age discrimination in violation of the Age Discrimination in Employment Act. Plaintiff was fifty-five at the time of her interview with Hokel.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ P. 56(c). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the nonmoving party. Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The nonmoving party must then set forth specific facts showing that there is a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
In making this determination, the Court must draw every reasonable inference from the record in the light most favorable to the nonmoving party and should not make credibility determinations or weigh evidence.Association Milk Producers Inc. v. Meadow Gold Dairies Inc., 27 F.3d 268, 270 (7th Cir. 1994). The nonmoving party must support its contentions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to its case and on which that party will bear the burden of proof at trial. The production of only a scintilla of evidence will not suffice to oppose a motion for summary judgment. Anderson, 477 U.S. at 252. Employment discrimination cases, while often turning on factual questions, are nonetheless amenable to summary judgment when there is no genuine dispute of material fact or there is insufficient evidence to demonstrate the presence of the alleged motive to discriminate. Cliff v. Board of School Comm'rs, 42 F.3d 403, 409 (7th Cir. 1994).
Defendant argues that plaintiff cannot prove a prima facie case of discrimination or retaliation case, cannot overcome the common actor presumption, cannot show a causal link between her Northwestern litigation and the withdrawal of her offer of employment, cannot show she was a qualified individual with a perceived disability, and cannot prove pretext. Plaintiff responded with an Objection to Defendant's Local Rule 56.1 Statement of Material Facts As to Which There is No Genuine Issue. Local Rule 56.1, formerly Local Rule 12, sets forth guidelines for litigants moving for and opposing summary judgment. It directs the opposing party to file, among other things, a supporting memorandum of law and a concise response to the movant's statement that shall contain "(A) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (B) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment. . . ." Plaintiff's objection does not comply with our Local Rule. Plaintiff's "objection" consists of numbered paragraphs which are unrelated to defendant's statements. Furthermore, other than her affidavit, plaintiff fails to authenticate any of the letters, rules, guidelines, or memoranda that she includes throughout her "objection." We are entitled to strictly enforce our rules. Midwest Imports. Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995). Because plaintiff seems to be proceeding pro se, however, we will consider the evidence that she has properly presented to this Court. Even giving that sparse evidence every reasonable inference, plaintiff has failed to raise a material dispute of fact.
I. Plaintiff Cannot Establish Gender or Age Discrimination
To show discrimination based on gender or age, Lohr must set out a prima facie case by showing that: I) she is a member of a protected class; 2) she was qualified for the position in question; 3) she was rejected despite her qualifications; and 4) another equally or less qualified person, who was not a member of the protected class was given the job. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Once a prima facie case of discrimination has been established, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for its action. Id. If the employer is able to offer a legitimate reason, then the burden shifts back to Lohr "to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "A pretext may be demonstrated `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Williams v. Williams Electronics, Inc., 856 F.2d 920, 923 (7th Cir. 1988).
Lohr was initially offered the position. Therefore, this is not a typical employment discrimination case. The critical determination that we must make on the record before us is whether Northwest's decision to withdraw Lohr's offer of employment was motivated by her refusal to allow Northwest to x-ray her to determine whether she carried infectious tuberculosis. It is undisputed that Northwest has a written policy requiring that "new employees with known positive PPD will have a chest x-ray performed." Lohr's refusal to allow Northwest to administer an x-ray is a legitimate nondiscriminatory rationale for withdrawing the offer of employment. As an on-call chaplain, plaintiff would minister to sick individuals. It is eminently reasonable that the hospital require assurances that she does not carry an extremely infectious disease. Therefore, plaintiff must advance some evidence that the decision was motivated by pretext.
Plaintiff has failed to submit a scintilla of evidence that pretext played any role in Hokel's decision. She did submit evidence suggesting that her original report to the hospital was erroneous and that she tested positive in 1992, that the 1992 test may not have included specific enough findings to prove that she had TB, that there are other ways to determine whether she has TB, that Hokel and others were frustrated with her, and that she was well qualified for the position. None of her evidence suggests that Northwest's rationale was not worthy of credence. Lohr has submitted no evidence showing that Northwest's policy was enforced selectively or that Northwest discriminated against her based on her gender. Even if she were able to show that other tests would adequately determine whether she had TB, she would not meet her burden of showing pretext. To establish pretext Lohr must show more than a mistake, she must show an intentional lie. Russell v. ACME-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Therefore, even if Lohr is correct and a second skin test could have shown her to be free of TB, the fact that Northwest adheres to its written policy is a valid uncontroverted reason for the discharge.
Plaintiff also fails to rebut the "common actor" presumption. Lohr was hired by Hokel and the offer of employment was withdrawn by Hokel. The common actor presumption exists when an employee in a protected class "is hired and fired by the same decision-maker in a relatively short time span." Chiaramonte v. Fashion Bed Group, 129 F.3d 391, 399 (7th Cir. 1997). In Chiaramonte, the decision-maker hired the plaintiff when he was 52 years old, retained him after a merger, and two years later fired him. Holding that the common actor presumption applied, the court noted, "[i]t is highly doubtful that a person who hires an employee in the protected age group . . . would fire that same employee . . . as a result of a sudden `aversion to older people.'" Id. (quoting Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992)). Similarly, it is unlikely that Hokel would fire Lohr out of a sudden aversion to females or older people. Therefore, we grant judgment in favor of Northwest on Lohr's claims of gender and age discrimination.
II. Plaintiff Cannot Establish Retaliation
In order to show retaliation Lohr must show that: 1) she engaged in statutorily protected expression; 2) she suffered an adverse employment action; and 3) there is a causal link between the protected expression and the adverse action. Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998). Although plaintiff did engage in statutorily protected expression and suffered and adverse employment action, she has produced no evidence of a causal link between the expression and the adverse action.
In 1989, plaintiff filed a sexual discrimination charge against Northwestern Memorial Hospital. The case was eventually settled. Lohr alleges that Merwald advised Hokel to withdraw the offer of employment based on that suit. Lohr has absolutely no evidence suggesting that Lohr and Merwald consulted about the decision to hire her and no evidence that Hokel knew about her suit against Northwestern. Both Merwald and Hokel testified that they did not speak about the matter and Merwald denies knowing that plaintiff applied for the chaplain position. Plaintiff has failed to produce any evidence to support her allegations.
As noted above, plaintiff's offer was withdrawn because she refused to take an x-ray test. Since Lohr has failed to produce any evidence suggesting that reason is pretext for discrimination, summary judgment on Count II is appropriate.
III. Plaintiff Cannot Establish a Violation of the ADA
The ADA proscribes discrimination "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, . . . and other terms, conditions and privileges of employment. 42 U.S.C. § 12112 (a). Plaintiff argues that Northwest intentionally discriminated against her. Northwest argues that Lohr is not a qualified individual. It argues that, if Lohr agreed to submit herself to the test, then it could have determined whether a reasonable accommodation was possible.
Lohr is not a qualified individual. She never presented Northwest with actual test results, and she never agreed to submit to a test. Therefore, Northwest could not determine whether she suffered from tuberculosis. As Northwest notes, since Lohr did not submit to a test, Northwest is not guilty of discrimination. Leckelt v. Board of Commissioners of Hospital Dist. No. 1, 909 F.2d 820, 830 (5th Cir. 1990). In Leckelt, a hospital discharged Leckelt because the hospital had information suggesting that he was exposed to HIV, and Leckelt refused to submit to an HIV test or submit test results. The court found that the hospital could not accommodate him without his results. The same is true in the instant case. Because Lohr failed to take the test or offer Northwest a recent x-ray, her offer of employment was withdrawn She was not fired because she had tuberculosis. Therefore, Northwest's conduct does not violate the ADA. We enter judgment in favor of Northwest on this claim.
CONCLUSION
The motion for summary judgment brought by defendant Northwest Community Hospital is granted. Judgment is entered in favor of Northwest Community Hospital on all counts and this case is terminated.