Opinion
Cause No. IP 00-41-C H/G
November 5, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
John R. Massey, a former employee at the Defense Finance and Accounting Center in Indianapolis, brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., against Donald Rumsfeld, Secretary of the United States Department of Defense. Following defendant's own terminology, the court refers to the defendant in this entry as "DFAS," which is an abbreviation for the Defense Finance and Accounting Service.
Donald Rumsfeld became the Secretary of the United States Department of Defense on January 26, 2001, succeeding William S. Cohen. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure the court has substituted Secretary Rumsfeld as the defendant in this action. Also, the court hereby vacates the magistrate judge assignment order previously entered in this action.
Massey alleges that he was subjected to a hostile work environment and unlawfully terminated. DFAS has moved for summary judgment on all claims, and it is entitled to summary judgment. Massey has made no effort at all to support any claim of racial discrimination. On his claims for disability discrimination, the undisputed facts show that Massey is not the real party in interest for his claims that arose before he filed a bankruptcy petition on May 13, 1998, without listing any such claims as assets.
On Massey's later claims for disability discrimination, this is a case in which the only substantial impairment alleged in the major life activity of working is an inability to work under a particular supervisor, which does not amount to a disability. Weiler v. Household Finance Corp., 101 F.3d 519, 524-25 (7th Cir. 1996). The undisputed facts show: (1) Massey did not have a disability within the scope of the ADA; (2) even if he had a disability, the only accommodation he has sought or argued for is unreasonable; and (3) Massey has failed to come forward with evidence upon which a reasonable jury could find DFAS's asserted reasons for firing him were false pretexts for unlawful discrimination.
Standard for Summary Judgment
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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). An issue is genuine if, on the written record presented, a reasonable jury could find in favor of the non-moving party on the issues raised. Baucher v. Eastern Ind. Prod. Credit Ass'n, 906 F.2d 332, 334 (7th Cir. 1990).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
Undisputed Facts
The evidence taken in the light reasonably most favorable to plaintiff shows the following. Plaintiff John Massey began working as an auditor for DFAS in Indianapolis in 1977. He worked in Japan for a few years but was sent back to Indianapolis in November 1991. In 1993, Massey took a position in Korea. After working in Korea for a few years, Massey returned to DFAS Indianapolis as a GS-510 (Grade 12) systems accountant.
Susan Holtzclaw was the Deputy Director of the Defense Joint Accounting System. She began supervising Massey in June 1997.
Massey has been diagnosed as suffering from chronic anxiety, depression, panic disorder with agoraphobia, and adjustment disorder with mixed emotional features. Massey's history of anxiety symptoms dates back to 1975. After Massey started working under Holtzclaw's supervision, problems started to occur. Holtzclaw gave Massey assignments that were not completed on time. Holtzclaw Dep. Vol. I at 74; Massey Dep. Vol. I at 133-34; Def. Ex. 25 26. Massey claims that Holtzclaw continuously yelled at, publicly ridiculed, and humiliated him.
Massey requested that he be reassigned away from Holtzclaw's supervision. Massey testified in his deposition that being reassigned away from Holtzclaw's supervision was the only accommodation he sought. Massey Dep. Vol. I at 133. The first time that Massey requested reassignment was by an e-mail sent on August 13, 1997. Massey did not provide any medical documents at that time supporting his request for reassignment.
On March 2, 1998, Massey made a second e-mail request for reassignment. This e-mail was sent to Don Mitchell, Holtzclaw's supervisor. The e-mail stated that Holtzclaw was confrontational and used abusive language. It also stated that Holtzclaw was not qualified to be a supervisor and was "out of her league." Def. Ex. 29. It also accused Holtzclaw of using her position "to satisfy some sick need to see suffering." Massey still had not provided any medical documentation.
On April 9, 1998 Massey sent an e-mail to Holtzclaw stating: "I am informing you as of this date I am acting in my own behalf as pro se, plaintiff or defendant until I retain an attorney to take issue with the removal action you have threatened me with." Def. Ex. 38. In the e-mail Massey demanded that Holtzclaw produce 20 specific items, including EEO complaints filed against her for the past 10 years, a copy of Holtzclaw's professional qualifications, and evidence of Holtzclaw's career path. Massey's e-mail stated that if Holtzclaw failed to produce the information by 4:00 p.m. that day, he would file an EEO complaint against her. Later that day, Massey met with an EEO investigator for an intake interview.
On May 13, 1998, Massey was absent from work due to illness. He did not complete a sick leave request prior to his absence. Massey attempted to phone Holtzclaw concerning his absence, but he was unable to reach her and left a message. Massey also failed to report for work on the following day — May 14, 1998. He called Holtzclaw again and left a message. Holtzclaw called Massey. Massey told Holtzclaw that he would bring in a leave slip when he returned to work.
That same day, Massey also filed a petition for bankruptcy protection. He had signed the petition the day before. Def. Ex. 5 at 3.
On June 2, 1998, in response to Massey's request for reassignment, Holtzclaw sent Massey an e-mail requesting medical documentation. Marc Darst, M.D., Massey's family doctor, provided medical documentation of Massey's medical condition. Dr. Darst stated that Massey's health would improve if he were under less stress, and he recommended that Massey be separated from the "fellow employee who is causing the stress." Pl. Ex. 1, ¶ 9. DFAS decided to send Massey at its own expense to a specialist for further evaluation. On July 15, 1998, Massey underwent a psychiatric assessment by Dr. Christopher Bojrab.
Dr. Bojrab wrote in his report that Massey's diagnoses seemed appropriate. He also stated: "It is difficult to make a case for a causal connection between Mr. Massey's medical conditions and his work environment or relationship with his supervisor as he notes the onset of his symptoms predate his first contact with the supervisor in question." Pl. Ex. 2 at 6.
On August 6, 1998, DFAS temporarily reassigned Massey and three other employees to assist the Joint Independent Testing Center (JITC) in overall systems testing. Testing was scheduled for August 6, 1998 through September 30, 1998. This was a full-time assignment, and Massey was not required to work under Holtzclaw's supervision during the time he was assigned to JITC. Massey Dep. Vol. I. at 238-40. On September 4, 1998, however, Massey was hospitalized. Massey had a cardiac catheterization on September 8th, and was released from the hospital on September 10th. Massey returned to work on September 14, 1998, again under Holtzclaw's supervision. He was told that JITC did not want him to return.
On September 21, 1998, Rod Harp, the JITC test coordinator, sent an e-mail concerning Massey's poor performance while assigned to JITC. Harp stated that Massey's productivity level was approximately one half the other testers with the same experience level. Harp also stated: (1) Massey left the test area at various times during the day, which made him unavailable for further testing; (2) Massey would arrive late in the mid-afternoon; and (3) when asked to do a test case (with at least two hours remaining in the work day) Massey would respond that he did not have enough time, and would then leave.
On September 4, 1998, Holtzclaw counseled Massey for excessive leave usage. As of August 29, 1998, Massey had used 139 hours of annual leave and 375.5 hours of sick leave, a total of 514.5 hours, resulting in an absentee rate of 38 percent. On September 30, 1998, Holtzclaw sent Massey an e-mail inquiring as to the appropriate documentation to support Massey's absence for a medical appointment, in accordance with the September 4, 1998, leave counseling memorandum. Massey considered this to be another form of harassment.
On October 5, 1998, Massey sent Holtzclaw another e-mail requesting reassignment and blaming Holtzclaw for his illnesses. Massey wrote:
My life was made a living hell to not only have to deal with the disabilities I already had, but now I have an additional one that could have been avoided had you recognized my personal early verbal message to you that I had a disability during June of 1997. Emotionally I am worse than before and am in heavy consultation and treatment by a psychiatrist and a psychotherapist. I cannot be around you anymore, because you are in fact the cause of my physical and emotional pain and suffering.
Def. Ex. 66. Massey sent another e-mail on October 20, 1998 to Holtzclaw and Don Mitchell. Massey wrote:
Further Medical Psychological Testing of myself for what ever reason by yourself [or] Mr. Mitchell will no longer be tolerated. If I perceive that you or Mr. Mitchell are indeed practicing some sort of testing to see what results you can achieve via your personally developed test efforts, I will report you both to the proper authorities. As a result of your past personal test efforts, I have been emotionally and physically damaged and have suffered severe physical and mental/emotional exacerbation to an already developed disability. You both have practiced horrific deeds and will be held accountable.
Def. Ex. 67. Massey's e-mail further blamed Holtzclaw and Mitchell for giving him coronary artery disease. Massey's e-mail concluded: "An effort to achieve all necessary penalties against yourself and Mitchell will be approached." Def. Ex. 67.
After receiving this e-mail, Holtzclaw met with Massey and told him that she could no longer tolerate his bizarre, improper, and threatening behavior. She also stated that Massey's daily e-mails were becoming more disruptive to management and could no longer be tolerated. Massey responded to this confrontation by calling DFAS security and telling the security officer that he was being harassed by Holtzclaw. Pl. Ex. 14. On October 22, 1998, Mitchell placed Massey on administrative leave, assertedly due to his erratic and bizarre behavior, and stated that Massey could not return to work without medical clearance. On December 3, 1998, Mitchell gave Massey notice of his proposed termination.
DFAS asserts that Massey's proposed termination was based upon insubordination, disrespectful behavior toward his supervisor, failure to complete assigned tasks, and failure to maintain a regular work schedule. Def. Exs. 79 80. The notice of proposed removal gave Massey 15 days to submit a response. Massey responded and met with Rod Mundy. On January 27, 1999, Mundy issued a notice of decision terminating Massey's employment with DFAS. Mundy found that removal was appropriate for any one of the four charges underlying his proposed removal. Other relevant facts are noted below, keeping in mind the standard that applies on a summary judgment motion.
Discussion
I. Real Party in Interest
The first issue is whether Massey is the real party in interest under Federal Rule of Civil Procedure 17. Massey filed a Chapter 7 bankruptcy petition on May 13, 1998. He did not list this suit or any of its claims as assets on the bankruptcy petition. DFAS argues that the claims raised in this suit were property of the bankruptcy estate, so that Massey is not the real party in interest.
The filing of a bankruptcy petition creates a bankruptcy estate. The bankruptcy estate includes "all legal or equitable interests of the debtor in property" at the time the bankruptcy petition was filed. 11 U.S.C. § 541(a)(1). Courts have uniformly held that the phrase "legal or equitable interests" includes causes of action. See, e.g., In re Polis, 217 F.3d 899, 901 (7th Cir. 2000); In re Smith, 640 F.2d 888, 890 (7th Cir. 1981); Midwestern Indemnity Co. v. Laikin, 119 F. Supp.2d 831, 855 (S.D.Ind. 2000). To become property of the bankruptcy estate, causes of action need not be formally filed prior to the bankruptcy filing. In re Polis, 217 F.3d 899, 902 (7th Cir. 2000).
If any of Massey's legal claims arose prior to the filing of the petition, they became the property of the bankruptcy estate. Id.; accord, Cable v. Ivy Tech State College, 200 F.3d 467, 472-73 (7th Cir. 1999); In re Carousel Int'l Corp., 89 F.3d 359, 362 (7th Cir. 1996). Under Chapter 7 of the bankruptcy code: "The trustee has sole authority to dispose of property, including managing litigation related to the estate." Cable, 200 F.3d at 472. In other words, "only the trustee has standing to prosecute or defend a claim belonging to the estate." Id.; accord, In re New Era, Inc., 135 F.3d 1206, 1209 (7th Cir. 1998); In re Perkins, 902 F.2d 1254, 1257-58 (7th Cir. 1990).
The issue is whether some or all of Massey's claims accrued before he filed the bankruptcy petition. On April 9, 1998, before he filed the bankruptcy petition, Massey sent the e-mail to Holtzclaw stating that he was acting on his own behalf as a pro se plaintiff until he could retain an attorney. On April 9, 1998, Massey also met with an EEO investigator concerning his claims of race and disability discrimination and the hostile work environment claim. Massey Dep. Vol. I at 58-60; Def. Ex. 7. On April 13, 1998, Massey spoke with the assigned EEO counselor and described the basis of his claims. Def. Ex. 7. Massey filed his bankruptcy petition on May 13, 1998. On June 1, 1998, Massey completed his formal complaint of discrimination in which he detailed his allegations and sought damages of $300,000.
Massey asserts in his affidavit that he filed the complaint on July 1st, not June 1st. See Pl. Ex. 3 ¶ 4. Massey did not dispute defendant's assertion that the date was June 1, 1998. See Pl. Corrected Response to Def. St. of Material Facts ¶ 109. Also, the complaint itself is signed by Massey and dated June 1st in several places, and it also has a notation "Rec'd" dated June 1, 1998. Def. Ex. 8. There is no genuine issue of fact about the date the complaint was filed.
For purposes of this analysis, the court must assume that Massey's claims are valid. Given that assumption, the foregoing sequence of events shows that, by the time he filed his bankruptcy petition, Massey had claims or causes of action for race and disability discrimination. He had taken the first step of asserting those claims by having his initial meeting with the EEO investigator. The formal complaint states that the most recent act of alleged discrimination was May 13, 1998, the same day that Massey filed for bankruptcy, and a day that he was not even at work. Also, of course, any suggestion that Massey had accrued $300,000 in damages between May 13th and June 1st, when he completed his formal complaint seeking that sum, would be absurd.
Massey argues that incidents occurring after May 13, 1998, make up part of the hostile environment claims. However, Massey fails to specify any incidents that support these claims after May 13, 1998. A mere conclusory statement is insufficient. Therefore, Massey is not the real party in interest on his claims for a hostile work environment based on race and/or disability or other forms of discrimination that might have occurred on or before May 13, 1998.
Massey argued that if the court finds him not to be the real party in interest, he should be allowed a reasonable amount of time to join the trustee in this suit. Rule 17(a) of the Federal Rules of Civil Procedure provides: "No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest . . . ." DFAS raised the issue during Massey's deposition on September 7, 2000, Massey Dep. Vol. I at 61-64, and filed its summary judgment brief on December 15, 2000. Massey has not taken any visible steps to re-open the bankruptcy and to join the trustee. Massey has had more than a reasonable amount of time to join the trustee as a party to the litigation. Those claims arising before May 13, 1998, must be dismissed because Massey is not the real party in interest. See Weissman v. Weener, 12 F.3d 84, 86 (7th Cir. 1993) (dismissing case after plaintiff failed, within reasonable time, to remedy real party in interest defect raised by court).
It also appears to the court that even if the hostile work environment claims had not accrued before Massey filed his bankruptcy petition, they would likely still be dismissed on summary judgment. Massey has not come forward with evidence that would allow a reasonable jury to find that the alleged harassment or hostility was based on his race or disability. Title VII and the ADA prohibit discrimination in the workplace because of an individual's race or disability. 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 12112(a). Neither statute ensures that an employer will treat an employee kindly or thoughtfully. Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994). There is ample evidence of animosity and friction between Massey and Holtzclaw, but the evidence simply fails to support any nexus between the alleged harassment and Massey's race or disability.
However, since Massey was not terminated until January 27, 1999, and continued to seek a transfer after May 13, 1998, his claims for failure to accommodate his claimed disability and for discriminatory firing had not accrued when he filed the bankruptcy petition. Those claims were not part of the bankruptcy estate, and Massey is the real party in interest for those claims, which must be addressed on the merits.
II. ADA Claim for Failure to Accommodate
Massey claims that he is a qualified individual with a disability and that DFAS failed to accommodate him as required by the ADA. Under the ADA an employer has a duty to a disabled employee to make reasonable accommodations that will allow the employee to perform the essential functions of his or her job. 42 U.S.C. § 12112(b)(5)(A). A reasonable accommodation may include a "reassignment to a vacant position." 42 U.S.C. § 12111(9)(B). The only accommodation that Massey has sought or argued for was being reassigned away from Holtzclaw's supervision.
A. "Disability" Under the ADA
The threshold issue is whether Massey had a disability within the meaning of the ADA. Massey relies on the "actual" disability definition in the ADA: "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). "Major life activities" have been defined as follows for purposes of the ADA: "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). When the claimed impairment is in the major life activity of working, as here, the plaintiff must show at a minimum that he is unable to work in a "broad class of jobs." Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999).
DFAS contends that Massey did not have any substantial limitation, and that Massey's only claimed limitation was the inability to work under Holtzclaw's supervision.
Massey has been diagnosed with chronic anxiety, depression, panic disorder with agoraphobia, and "adjustment disorder with mixed emotional features." Pl. Exs. 1 2. Massey's own doctor and the psychiatrist who saw him for DFAS suggested that Massey be transferred so that he no longer worked under Holtzclaw's supervision. Id. Those recommendations and the other evidence from Massey, however, fall well short of showing a disability for purposes of the ADA.
In Weiler v. Household Finance Corp., 101 F.3d 519 (7th Cir. 1996), the Seventh Circuit affirmed summary judgment for an employer in a similar case. The plaintiff in Weiler asserted that her supervisor was causing her stress and anxiety, that she could work for another supervisor, and that her employer had a duty to accommodate her disability by transferring either her or her supervisor. The Seventh Circuit held that the plaintiff did not have a disability for purposes of the ADA:
Weiler's claim amounts to a charge that she is only unable to work if Skorupka is her boss. * * * The major life activity of working is not "substantially limited" if a plaintiff merely cannot work under a certain supervisor because of anxiety and stress related to his review of her job performance.
Weiler, 101 F.3d at 524, citing Palmer v. Circuit Court of Cook County, 905 F. Supp. 499, 507 (N.D.Ill. 1995), aff'd, 117 F.3d 351 (7th Cir. 1997), and Adams v. Alderson, 723 F. Supp. 1531, 1531-32 (D.D.C. 1989) (personality conflict with an "antagonizing supervisor" held not to be a disability under Rehabilitation Act). The Weiler court also noted the well-established principle under the ADA that the inability to perform one particular job (such as a job under one supervisor) does not constitute a substantial limitation on the major life activity of working. Weiler, 101 F.3d at 525, citing Byrne v. Board of Education, 979 F.2d 560, 565 (7th Cir. 1992).
Massey has attempted to distinguish Weiler on the theory that Weiler's alleged disability was caused by her supervisor, while he has a long history of impairment that predates his work for Holtzclaw. Pl. Br. at 13-14. The distinction is not persuasive. Weiler was decided based on the scope of the alleged impairment, not the cause of the impairment. For the same reason, Massey's reliance on dicta in Palmer v. Circuit Court of Cook County, 117 F.3d 351, 352 (7th Cir. 1997) ("if a personality conflict triggers a serious mental illness that is in turn disabling, the fact that the trigger was not itself a disabling illness is no defense"), misses the point, which is the scope of the claimed impairment, not its cause.
More recently, the Seventh Circuit has affirmed in relevant part a grant of summary judgment on another ADA claim similar to Massey's. In Frazier v. Delco Electronics Corp., 263 F.3d 663 (7th Cir. 2001), an employee claimed that her supervisor had been sexually harassing her, that the employer had failed to respond effectively to her complaints, and that the harassment had caused a nervous breakdown. The appellate court reversed summary judgment for the employer on the sexual harassment claim, but affirmed on the employee's ADA claim because the employee did not have a disability within the meaning of the ADA. The plaintiff did not have a disability in the sense of an impairment of a "major life activity." "She is perfectly healthy. She can do anything that any normal person can do — except work in proximity to Bester Spears. Working in proximity to Bester Spears is not a major life activity." 263 F.3d at 668.
In light of the evaluations by Dr. Darst and Dr. Bojrab, the court certainly could not say that Massey is "perfectly healthy." But as in Weiler and Frazier, Massey's claim adds up to a claim that his ability to work is impaired only if he is being supervised by Holtzclaw. That limitation does not amount to a substantial limitation on the major life activity of working. See also Sutton v. United Air Lines, 527 U.S. at 491 ("substantially limited" in activity of working requires proof of inability to work in broad class of jobs).
Massey also asserts that he is unable to work in a broad class of jobs, but he provides no specifics, and claims in conclusory terms only that he is unable to work in any "high stress" environment. Pl. Br. at 14. That is not enough to raise a genuine issue of material fact.
B. Reasonable Accommodation
Even if a jury might reasonably find that Massey is substantially limited in the major life activity of working, his ADA claim would still fail as a matter of law because the only accommodation he has ever sought is reassignment to a different supervisor. Massey Dep. Vol I at 133. Under Weiler, that accommodation is unreasonable as a matter of law, and there is no evidence sufficient to find that any other form of accommodation was available here.
In Weiler v. Household Finance, in addition to holding that the plaintiff was not disabled for purposes of the ADA, the Seventh Circuit also held that the plaintiff had failed to show a lack of accommodation. The court wrote:
The ADA does not require HFC to transfer Weiler to work for a supervisor other than Skorupka, or to transfer Skorupka:
An employer may be obligated to reassign a disabled employee, but only to vacant positions; an employer is not required to "bump" other employees to create a vacancy so as to be able to reassign the disabled employee. Nor is an employer obligated to create a "new" position for the disabled employee. Furthermore, in order for an employer to be obligated to accommodate an employee by reassigning them to a different position, that accommodation must not impose an "undue hardship" on the employer.
Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (citations omitted). Weiler's solution is that she return to work under a different supervisor. But that decision remains with the employer. In essence, Weiler asks us to allow her to establish the conditions of her employment, most notably, who will supervise her. Nothing in the ADA allows this shift in responsibility. See Wermick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) (failure to assign employee to work under different supervisor did not violate reasonable accommodation requirement of the ADA and Rehabilitation Act; "Indeed, nothing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.").101 F.3d at 526.
Massey has not identified any court decision finding an ADA violation based on an employer's refusal to reassign an employee who finds that working for a particular supervisor is too stressful. That result would appear to be a significant expansion of the ADA. It is true that the employer in Weiler had gone further than DFAS has gone in this case, in that the employer in Weiler allowed the employee time off with short-term disability benefits and actually offered some alternative positions. See Weiler, 101 F.3d at 526. But it is also true that the only accommodation Massey has ever sought in this case is reassignment away from Holtzclaw's supervision. He has never identified any other specific accommodation that would have been reasonable under the circumstances.
Massey's counsel has suggested that such a transfer would have been possible. He refers the court to Mitchell's testimony noting that there "were a few jobs in the finance center." Pl. Ex. 7 at 106. However, there was no further development of that point in the record. Nothing in the record explains the number or type of positions available. Nothing in the record suggests that Massey would even have been qualified for the positions available. The undisputed evidence shows that Massey needed to contact the HR office to seek reassignment, but there is no evidence in the record that Massey ever did so. The court will not speculate about the type and availability of positions, and Mitchell's statement alone is insufficient to establish that DFAS could have reasonably accommodated Massey by transferring him to another job in the finance center.
Massey also argues that DFAS violated the ADA by failing to engage in the "interactive process" of finding a reasonable accommodation. See Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (1996) (describing process contemplated by ADA). Failing to engage in the desired "interactive process" is not, however, an independent violation of the ADA. Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000). The ADA requires an employer to provide a reasonable accommodation needed by a disabled employee, but the burden remains on the employee to show that a reasonable accommodation was possible. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996). If the employer has failed to engage in the interactive process, the result may be to make it easier for the employee to prove a failure, but not to excuse the employee from making the proof. In this case, Massey has failed to come forward with any evidence identifying any specific accommodation or transfer that would have been reasonable under the circumstances. DFAS is entitled to summary judgment on the ADA accommodation claim on this basis, as well.
III. Termination Claim
Massey's final claim is for unlawful termination. Massey has not presented any direct evidence of discrimination based on either his race or his asserted disability. The only other available method of proof is the familiar indirect method of proof under McDonnell Douglas Corp. v. Green and its thousands of progeny. Under that method of proof, Massey must first come forward with evidence of a prima facie case showing: (1) he belongs to a protected class; (2) he was qualified for his position and performed satisfactorily; (3) notwithstanding his qualifications and performance, he suffered an adverse employment action; and (4) a similarly situated individual outside the protected class was treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998).
Massey has pointed out that the McDonnell Douglas method of proof does not apply to a failure to accommodate claim under the ADA. Pl. Br. at 20, citing Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1996). The McDonnell Douglas method of proof can still be applied, however, to a claim of disparate treatment (such as firing) based on an employee's disability. See DeLuca v. Winer Industries Inc., 53 F.3d 793, 797 (7th Cir. 1995) (discussed in Bultemeyer).
The elements of the prima facie case are intended to identify those situations in which an employer's decision, if not satisfactorily explained, would support a reasonable inference of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993). At the summary judgment stage, the plaintiff need not prove each of the four elements, but he must come forward with evidence that would allow a reasonable jury to find each element by a preponderance of the evidence.
Once the plaintiff presents a prima facie case of discrimination, then the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for his termination. Clay v. Holy Cross Hospital, 253 F.3d 1000, 1005 (7th Cir. 2001). If the defendant proffers a legitimate reason, the inference of discrimination disappears and Massey must come forward with evidence that would allow a reasonable jury to find that DFAS's proffered reasons are pretexts for intentional discrimination. Id. It is clear that the "ultimate burden to prove intentional discrimination" remains with the plaintiff. Id.
Massey has made no attempt in his summary judgment papers to support his claim of race discrimination, and the court will not construct an argument for him. With respect to his ADA claim, Massey has not attempted to show the fourth element of the prima facie case under the McDonnell Douglas test, for he has not offered evidence that any other employee outside the protected class was similarly situated and was treated more favorably than he was. Without evidence of that element, summary judgment must be granted. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997).
Even if Massey had presented a prima facie case, he has still failed to present evidence upon which a reasonable jury could conclude that DFAS's alleged reasons for terminating him were pretexts — that is, that they were false reasons given to mask unlawful discrimination. The Seventh Circuit recently explained:
Pretext "means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n., 224 F.3d 681, 685 (7th Cir. 2000). "A `pretext for discrimination' means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's tracks." Id. at 684. "On the issue of pretext, our only concern is the honesty of the employer's explanation." O'Connor v. DePaul University, 123 F.3d 665, 671 (7th Cir. 1997). Thus, even if Seliga's reasons for Clay's termination were "mistaken, ill considered or foolish, so long as [the employer] honestly believed those reasons, pretext has not been shown." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000).
Clay v. Holy Cross Hospital, 253 F.3d at 1005-06. "To prove pretext, [plaintiff] must present facts that cast doubt on the [defendant's] specific reasons for [his] termination. * * * Moreover, [plaintiff] must present facts to rebut each and every legitimate, non-discriminatory reason advanced by the [defendant] in order to survive summary judgment." Clay, 253 F.3d at 1007; accord, Wolf v. Buss (America) Inc., 77 F.3d 914, 920 (7th Cir. 1996).
DFAS proffers four legitimate and non-discriminatory reasons for firing Massey: (1) insubordination; (2) disrespectful behavior towards his supervisor; (3) failure to complete assigned tasks; and (4) failure to maintain a regular work schedule. Massey argues that DFAS engaged in a scheme to terminate him for non-discriminatory reasons. Massey has still failed to present evidence from which a reasonable jury could find that the insubordination and disrespectful behavior toward his supervisors claims were pretexts for discrimination. He has the burden to come forward with evidence upon which a reasonable jury could find that each non-discriminatory reason proffered by DFAS was a false pretext for discrimination. Clay, 253 F.3d at 1007; accord, Wolf v. Buss (America) Inc., 77 F.3d 914, 920 (7th Cir. 1996). Massey failed to address the insubordination and disrespectful behavior toward his supervisors reasons proffered by DFAS.
Since Massey failed to come forward with evidence upon which a reasonable jury could find pretext on at least two of the four legitimate and non-discriminatory reasons proffered for terminating his employment, DFAS is entitled to summary judgment on the termination claim.
Conclusion
For the foregoing reasons, DFAS is entitled to judgment as a matter of law on all of the claims stated in the complaint. Summary judgment is granted to defendant DFAS, and final judgment shall be entered accordingly.
So ordered.