Opinion
Cause No. 1:01-CV-283
July 26, 2002
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This case, brought under 42 U.S.C. § 12101, et seq., the Americans with Disabilities Act ("ADA"), is before the Court on the motion of Fleetwood Motor Homes of Indiana, Inc. ("Fleetwood") for summary judgment filed May 17, 2002. The motion was accompanied by the declaration of Mary Ann Talamantes ("Talamantes Dec. ¶ ___"), Fleetwood's former Human Resource Manager.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
On June 19, 2002, the Plaintiff, Julie Rousseau ("Plaintiff"), filed a response accompanied by her affidavit (Pl. Aff. ¶ ___"), and the affidavit of Helen Johnson ("Johnson Aff. ¶ ___.").
On July 3, 2002, Fleetwood filed its reply brief.
For the reasons hereinafter provided, the Motion for Summary Judgment will be GRANTED in part and DENIED in part.
II. FACTUAL BACKGROUND
Because no discovery has occurred in this case, the record on summary judgment is confined to the Talamantes declaration, the Plaintiffs affidavit, Johnson's affidavit, and the Plaintiffs complaint. Consequently, since we must view the facts in a light most favorable to the Plaintiff, much of the following recitation borrows heavily from her affidavit.
The Plaintiff began her employment at Fleetwood in April 1996, starting in the wire harness department. (See Pl. Aff. ¶ 2.) Eventually, she transferred to the cabinet shop as a framer, but in November 1997, she suffered a work related injury to her elbows. (Id. ¶ 4.)
Ultimately, she had surgery on her elbows, and was thus unable to work from approximately April to July 1998. (Id. ¶ 5.) When she returned to work her medical condition resurfaced and in September 1998, was deemed permanent. (Id. ¶ 6.) At that time, the Plaintiffs doctor imposed work restrictions limiting the amount of weight she could lift and pull, and prohibited her from operating any power tools. (Id.; Talamantes Dec. ¶ 6.) It is this medical condition which the Plaintiff believes constitutes a disability under the ADA. (Pl. Aff. ¶ 7.)
Fleetwood was informed of the Plaintiffs restrictions and because it was apparent she could no longer perform the essential functions of a framer, Fleetwood placed her in a different position within the cabinet shop, in charge of cabinet blueprints. (Pl. Aff. ¶ 9-10.)
The record does not disclose the essential job functions of a framer.
In December 1998, after a couple months of handling blueprints, the stiles machine position became available in the cabinet shop. (Id. ¶ 11.) Fleetwood asked the Plaintiff to be the stiles machine operator, and she agreed. (Id.)
The stiles machine operator is one of a number of "assemblers" in the cabinet shop. (Id. ¶ 12.) The assemblers put together cabinets that are ultimately placed in Fleetwood motor homes. (Id.) As the Plaintiff describes it, the essential functions of the job involved working with small bundles of pre-cut wood for eventual assembly into cabinets. (Id.) The stiles machine operator was required to cut and inventory the pieces, measure them, and inspect each piece for color coordination. (Id.) After these tasks were completed, the Plaintiff then operated the stiles machine to drill screw holes in the pieces, followed by inserting screws in the holes. (Id.) The Plaintiff then would rebundle the pieces and the bundle would move to the next assembler who would use them to assemble the cabinets. (Id.) The Plaintiff contends that notwithstanding her alleged disability, she could perform all of the essential functions of a stiles machine operator. (Id. ¶ 13.) However, when the supervisory personnel in the cabinet shop changed around March or April 1999, Fleetwood embarked on a pattern of conduct designed to harass the Plaintiff and subject her to disparate treatment based on her disability. (Id. ¶ 15.)
Fleetwood does not contest the Plaintiffs view of the essential functions of a stiles machine operator.
The Plaintiff contends that this harassment took the form of being assigned tasks that were not essential to the operation of the stiles machine, such as unloading heavy pallets, and delivering the wood piece bundles in such bulk that the Plaintiff could not lift or manipulate them. (Id. ¶ 16.) The Plaintiff contends that these changes were pointless, and thus infers they were imposed for the purpose of violating her work restrictions, or to harass her, and as retaliation for seeking accommodations. (Id. ¶¶ 17-18.) Even though the Plaintiff complained to Fleetwood management, no corrective action was taken. (Id. ¶¶ 20-22.) In fact, the only apparent change was that the Plaintiffs immediate supervisor instructed her to stop complaining and threatened her with reprisals, retaliation and termination. (Id. ¶ 22.) Indeed, the Plaintiff contends that her immediate supervisor embarked on a course of action to reconfigure her work space so as to exacerbate the Plaintiffs alleged claustrophobia. (Id. ¶¶ 23-28.) Even though the Plaintiff complained, no action was taken except the harassment by her immediate supervisor increased. (Id.)
It was apparently during this time, around August 1999, that the Plaintiff again complained about elbow pain. (Talamantes Dec. ¶ 11.) The Plaintiff was referred to a Dr. Darvin Suter for examination, and he imposed a maximum lifting restriction of no more than eleven pounds, no power tools, and no heavy pulling or lifting. (Id.) Since the maximum weight involved in the stiles machine job was 7.5 pounds, and because the job allegedly involved no heavy pulling, these restrictions did not preclude the Plaintiff from the stiles machine. (Id. ¶ 12.)
Nonetheless, if the Plaintiff did encounter an item too heavy to lift, her supervisor instructed the Plaintiffs co-workers not to assist her. (Pl. Aff. ¶ 30.)
In any event, due to a drop in orders, Fleetwood cut back production at the plant beginning in May 2000. (Talamantes Dec. ¶ 13.)
On June 15, 2000, after the Plaintiff expressed certain safety concerns relating to the stiles machine job, a meeting was held to discuss other work she might be able to do within her restrictions to give her eight hours of work under the reduced production schedule then in existence at Fleetwood. (Id. ¶ 14.; Pl. Aff. ¶ 32.) As a result, the Plaintiff was given the added responsibility of operating a glue gun, a device which did not violate her restrictions since it did not rotate, or vibrate, and was not considered a power tool. (Talamantes Dec. ¶ 14.) Nevertheless, the Plaintiff doubted, although she does not say why, that she could operate the glue gun given her disability, and expressed this doubt to Fleetwood. (Pl. Aff ¶ 33.)
Shortly thereafter, the Plaintiff filed her first EEOC charge on June 19, 2000, complaining that her supervisors had violated her work restrictions by adding more responsibilities to her job and that other employees had been instructed not to help her. (See Pl. Complaint, Exh. A.)
Shortly thereafter, Fleetwood shut the plant down (again, a lack of orders) from June 26 to July 8, 2000. (Talamantes Dec. ¶ 15.)
In response to the Plaintiffs EEOC charge, a meeting was held on July 17, 2000, between the Plaintiff, Talamantes, and Fleetwood's Production Manager. (See Talamantes Dec. ¶ 16.) Based on the Plaintiffs complaint, Fleetwood contacted the Plaintiffs physician, Dr. Couch, and he ordered a Functional Capacity Evaluation ("FCE") and a follow-up appointment for August 18, 2000. (See Talamantes Dec. ¶ 17.) In the meantime, the Plaintiff performed the jobs assigned to her, but noticed that even though she had been assigned glue gun work, ostensibly because there was insufficient work for the stiles machine, Fleetwood employees were operating the stiles machine the entire time she was working the glue gun. (Plnf Aff. ¶¶ 34-35.)
The Plaintiff eventually told Fleetwood that she could not operate the glue gun due to her disability. (Pl. Aff ¶ 36.) However, when she told Fleetwood that she wanted her stiles machine position back, she was told that the position was not being filled even though she could see other Fleetwood employees working the machine. (Id. ¶ 36.) On top of that, the Plaintiff noticed that the non-essential job duties that had been imposed on her when she operated the stiles machine were not being imposed on the replacement operators. (Id. ¶ 37.)
Nonetheless, Fleetwood was shut down again from July 24 through August 21, 2000. (Talamantes Dec. ¶¶ 18-19.) It was during this time that the Plaintiffs family doctor, Dr. Zurcher, imposed additional restrictions, the Plaintiff was now no longer to do "continuous or repetitive, forceful, squeezing or gripping." (Talamantes Dec. ¶ 15.) This restriction applied to both power and manual tools. (Id.)
On August 17, 2000, the Plaintiff submitted to the FCE, but the examiner reported that the evaluation was invalid because the Plaintiff did not put forth maximum effort, (Talamantes Dec. ¶ 20), a point the Plaintiff contests. (Pl. Aff. ¶ 38.)
When the Plaintiff returned to the stiles machine on August 21, 2000, she was sent home after working only a few hours and this happened again on August 22, supposedly because there was not enough work to do. Fleetwood contends that due to the invalidity of the FCE and because her new job restrictions prevented her from operating the glue gun, all that was left for the Plaintiff was the stiles machine, and there was not enough work there for her to do. As a result, the Plaintiff was terminated. (Talamantes Dec. ¶¶ 21-25.)
Of course, the Plaintiff contests Fleetwood's assertion by contending that there was ample work for her to do at the machine given the amount of product stacked there. (Pl. Aff. ¶¶ 40, 42.) This observation is somewhat confirmed by a fellow co-worker of the Plaintiff who saw the stiles machine operating at least six hours a day from August 2000, to April 2001. (See Johnson Aff ¶ 7.)
In its motion, Fleetwood focuses entirely on the Plaintiffs termination and contends that it was due to reduced plant orders and her inability to perform, with or without reasonable accommodations, the essential functions of any available position for which she was qualified, and was not in retaliation for having filed an EEOC change.
In response, the Plaintiff argues that Fleetwood's Motion for Summary Judgment ignores her hostile work environment claim, and her various pre-termination claims. In addition, the Plaintiff contends that she was subjected to disparate treatment in that she was required to perform marginal tasks not essential to the stiles machine operator position, and which her disability prevented her from performing, yet Fleetwood did not require such tasks from similarly situated employees.
In its reply brief, Fleetwood contends that the pre-termination working conditions about which the Plaintiff complains were not adverse employment actions and therefore could not form the basis an ADA claim. We will turn to these respective arguments after reviewing the standard for summary judgment.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "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." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
In any event, in employment discrimination matters, the standard on summary judgment is applied with "added rigor." Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). As the Seventh Circuit reiterated in Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1169 (7th Cir. 1994), citing the standard set out in Sarsha:
Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. [citations omitted].
The anachronistic term "Directed Verdict" is no longer used; rather, it has been more accurately retitled "Judgment as a Matter of Law." See Fed.R.Civ. p. 50(a). A defendant is entitled to such a judgment if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiff. Id.
However, the 7th Circuit has clarified its use of the phrase added rigor, stating that the "original use of this phrase indicates that it was merely included to stress the fact that employment discrimination cases typically involve questions of intent and credibility, issues not appropriate for this court to decide on a review of a grant of summary judgment." Alexander v. Wisconsin Dept. of Health and Family Servs. 263 F.3d 673, 681 (7th Cir. 2001).
IV. DISCUSSION
A. DISPARATE TREATMENT CLAIMS
1. The Plaintiff's Discriminatory Termination Claim
Plaintiff claims Fleetwood discriminated against her, in violation of the ADA, by terminating her because of her medical condition. As will be discussed infra, the Court finds that genuine issues of material fact exist concerning whether the Plaintiff was "disabled" for purposes of the ADA, whether she was a "qualified individual" under the Act, and whether Fleetwood discriminated against her because of her disability.
In order to establish a prima facie case under the ADA, a plaintiff must show that: (1) she is "disabled" for purposes of the ADA; (2) she is "otherwise qualified to perform the essential functions of the job with or without reasonable accommodation;" and (3) the employer took an adverse employment action against her because of her disability, or failed to make a reasonable accommodation. Dvorak v. Mostardi Platt Associates, Inc., 289 F.3d 479, 483 (7th Cir. 2002); Pugh v. City of Attica, Indiana, 259 F.3d 619, 626 (7th Cir. 2001); Stevens v. Illinois Dept. of Transp., 210 F.3d 732, 736 (7th Cir. 2000).
(a) "Disabled"
Under the ADA, an individual is "disabled" if (A) she has a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (B) she has a record of such an impairment; or (C) Fleetwood regarded her as having such an impairment. 42 U.S.C. § 12102(2)(A)-(C). Importantly, at present, the Court only needs to decide if a rational jury, viewing the evidence in the light most favorable to Plaintiff, could conclude that the Plaintiff was "disabled" under the Act. EEOC v. Sears, Roebuck and Co., 233 F.3d 432, 438 (7th Cir. 2000).
"Major life activities" are defined as "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Here, the Plaintiff apparently believes that her working function was substantially limited.
In Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court identified a three-step test to determine if a physical or mental condition meets the definition of disability under § 12102(2)(A). First, we must determine if the Plaintiffs condition is a physical or mental impairment. Id. Second, we must identify an affected life activity upon which the Plaintiff relies, and determine whether it constitutes a major life activity under the ADA. Id. Third, we must ask whether the impairment substantially limited the major life activity. Id.
The term "substantially limits" means that the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which she can perform a major life activity, as compared to an average person in the general population. 29 C.F.R. § 1630.2(j)(1)(ii).
Applying Bragdon here, we at least infer, and it is largely unchallenged, that the Plaintiff suffers from a physical impairment. (Pl. Aff. ¶ 6.)
Less clear, however, is whether the Plaintiff has adequately presented evidence that her condition "substantially limits" her ability to perform the major life activity of working under Bragdon's second and third steps. Indeed, the Supreme Court has recently clarified that "substantially" suggests "`considerable' or `to a large degree.'" Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 691 (2002). Thus, for example, "impairments that interfere in only a minor way with the performance of manual tasks" cannot qualify as disabilities. Id. Moreover, when the major life activity at issue is working, the Plaintiff must demonstrate that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes[.]" 29 C.F.R. § 1630.2(j)(3)(I); E.E.O.C. v. Rockwell Intern. Corp., 243 F.3d 1012, 1017 (7th Cir. 2001).
A "class of jobs" encompasses the job from which the Plaintiff was disqualified, as well as all other jobs utilizing similar training, knowledge, and skills within "the geographical area to which the [claimant] has reasonable access." 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(B). A "broad range of jobs in various classes," in contrast, includes the job from which a claimant was disqualified, as well as all other jobs not utilizing similar training, knowledge, and skills within "the geographical area to which the [Plaintiff] has reasonable access." 29 C.F.R. § 1630.2(j)(3)(ii)(A), (C).
Nevertheless, Fleetwood does not quibble about the Plaintiffs alleged disability, and apparently concedes (at least at this point) that her condition substantially limits her ability to perform the major life activity of working. Fleetwood may be driven to this position because the present record, limited as it is, gives rise to an inference that the Plaintiff was virtually unable to perform any job (except, perhaps, the stiles machine job) at Fleetwood. This inference is important because while "an inability to perform a particular job for a particular employer is insufficient to establish substantial limitation," Sinkler v. Midwest Property Management Ltd Partnership, 209 F.3d 678, 685 (7th Cir. 2000), it is a different matter when the Plaintiff cannot do a class of jobs, such as arguably all the jobs at Fleetwood. See, cf., DePaoli v. Abbott Labs., 140 F.3d 668, 673 (7th Cir. 1998); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996). Of course, whether this situation truly amounts to the Plaintiff being significantly restricted in her ability to engage in "an entire class or [a] broad range of jobs," remains for trial and the ultimate determination by the jury. Id.
Accordingly, a genuine issue of material fact exists as to whether the Plaintiff is disabled under the ADA.
(b) "Qualified Individual"
Fleetwood also seems to argue that the Plaintiff is not a "qualified individual" under the ADA. To be a qualified individual, the Plaintiff must be someone with a "disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Emerson v. Northern States Power Co., 256 F.3d 506, 513 (7th Cir. 2001); 42 U.S.C. § 21111(9).
Accordingly, the Plaintiff must demonstrate that (1) she has the prerequisites for the position (i.e. proper training, skills, and experience); and (2) she could perform the essential functions of the job with or without reasonable accommodations. Emerson, 256 F.3d at 513; Nowak v. St. Rita High School, 142 F.3d 999, 1002-03 (7th Cir. 1998) (citing 29 C.F.R. Pt. 1630, App. § 1630.2(m)); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997). Moreover, it is well settled that the "qualified individual" determination must be made at the time of the challenged employment decision. Nowak, 142 F.3d at 1003; 29 C.F.R. Pt. 1630, App. § 1630.2(m), at 351 (1998). Since the parties do not dispute the first point, we start our analysis with the second.
Fleetwood contends that the Plaintiff was unable to perform the essential functions of an "assembler" even with a reasonable accommodation. Fleetwood reasons that since the "assembler" position encompasses a variety of tasks, including the stiles machine, placing the Plaintiff on the stiles machine was itself a reasonable accommodation, and she was never given any tasks beyond the essential functions of an "assembler." (Fleetwood's Reply Br. at 5.) The Plaintiff argues that if she was an "assembler," it was in title only, and that she was really a stiles machine operator, since that was the only assembler job she ever performed. Accordingly, she believes the other so-called assembler tasks Fleetwood imposed on her were not essential to operating the stiles machine.
"Essential functions" are those that are fundamental, and not merely marginal, to a job. See 29 C.F.R. Pt. 1630, App. § 1630.2(n)(1). When determining if a job requirement is essential, we look to several factors including (1) the employer's judgment; (2) written job descriptions; (3) the amount of time spent performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the work experience of past incumbents in the job; and (6) the current work experience of incumbents in similar jobs. Lenker v. Methodist Hosp., 210 F.3d 792, 796 (7th Cir. 2000) (citing 29 C.F.R. § 1630.2(n)(3)). These factors are not exhaustive, nor should any one factor be given more weight than any other. Coleman v. Keebler Co., 997 F. Supp. 1102, 1114 (N.D. Ind. 1998). Moreover, "whether a particular function is essential is a factual determination that must be made on a case by case basis." Id. (quoting 29 C.F.R. § 1630.2(n)).
While the Court must at least consider, if not defer to, the employer's judgment as to what are the essential functions of a job, see Winfrey v. City of Chicago, 2000 WL 804693, at *7 (N.D.Ill. June 21, 2000) (quoting 42 U.S.C. § 12111(8)), Fleetwood has offered no indication by affidavit, written job description or otherwise, what those functions were. Instead, Fleetwood simply offers the conclusion, without explanation, that the Plaintiff was unable to perform any assembler task, including the stiles machine.
In contrast, the Plaintiff describes the essential functions of the stiles machine operator based on her own work experience, that is, the operator must cut and inventory small pieces of wood, measure and inspect them, and drill screw holes in them. (Pl. Aff. ¶ 12.)
A reasonable jury could conclude that the Plaintiff was capable of performing these essential functions because she had operated the stiles machine with no problem from December 1998 to about April 1999. However, after April 1999, her new supervisors, Deb Bowen ("Bowen) and Dave Eicher ("Eicher") began assigning new duties to her, and over time she was forced to perform tasks that violated her work restrictions. For example, she had to unload heavy pallets even though the stiles machine operator had never been required to do so before, and she was forced to deliver heavy pieces of wood to other assemblers within the Cabinet Shop, despite the fact that they had always picked up their own wood. (Pl. Aff ¶ 16.) Moreover, under Bowen and Eicher, the weight and bulk of the pre-bundled pieces of wood used by the stiles machine increased so significantly that the Plaintiff could no longer lift them without violating her work restrictions. (Id.) On this record, we do not know if these tasks were outside the essential functions of the stiles machine operator, or whether they had always been part of the job and that the Plaintiff had just been accommodated (at least until the new supervisors arrived) or whether this was outright harassment, as discussed more fully infra. At this juncture, however, we must draw all inferences in favor of the Plaintiff.
Although Fleetwood argues, without evidentiary support, that these changes were essential to the position, there are factual issues that prevent granting summary judgment. Indeed, while an employer can require that an employee perform certain duties in a position, it may not create pretextual qualifications. DePaoli, 140 F.3d at 674. For example, at least one inference is these newly imposed requirements were pretextual because Fleetwood never before required them of the Plaintiff or any other employee for that matter — and it never included these tasks in any job description (if one actually exists). Morever, even more suspicions are raised by the purported fact (so far unrebutted) that after the Plaintiff left the stiles machine her replacement was not required to perform these tasks. (See Pl. Aff. 37.) Thus, a reasonable jury could find that the tasks imposed on the Plaintiff were pretextual, and that she was capable of performing the essential functions of her assembler job on the stiles machine.
(c) Whether the Plaintiff was Terminated Because of Her Disability
Finally, to prevail on her ADA termination claim, the Plaintiff must demonstrate that she suffered an adverse employment action because of her disability. Dvorak, 289 F.3d at 483. Because the Plaintiffs termination constitutes an adverse employment action, see Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002), and because she has arguably established her disability and qualifications, the burden of production shifts to the employer to articulate a legitimate non-discriminatory reason for the termination. Dvorak, 289 F.3d at 485. "If the employer does so, the inference of discrimination disappears, and the plaintiff must prove by a preponderance of the evidence that the employees proffered reason was a pretext for intentional discrimination." Id. The ultimate burden to prove intentional discrimination remains with the plaintiff. Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993)).
Here, Fleetwood contends that it was forced to terminate the Plaintiff because she could no longer operate the glue gun and because production cutbacks had brought its need for stile machine work to a virtual halt. However, a reasonable jury could conclude on this record that Fleetwood's reasons are pretextual. For example, while operating the glue gun, the Plaintiff personally observed other employees operating the stiles machine, and just before her termination she noted a considerable backlog of stiles machine work. (Pl. Aff. ¶¶ 37; 40.) Moreover, even after the Plaintiffs termination, other employees were observed operating the stiles machine for a minimum of six hours every workday. (Johnson Aff. ¶ 7.) This evidence raises at least an inference that Fleetwood's proffered reason is pretextual, and gives rise to the inference that Fleetwood terminated the Plaintiff because of her disability.
Accordingly because factual issues exist regarding whether the Plaintiff is disabled, whether she is a qualified individual and whether Fleetwood terminated her because of her disability, Fleetwood is not entitled to summary judgment as to the Plaintiffs discriminatory termination claim.
2. The Plaintiff's Pre-Termination Disparate Treatment Claims
The Plaintiff also alleges ADA violations that occurred prior to her termination given that Fleetwood (a) required her to perform non-essential tasks, (b) altered her workspace, and (c) instructed other employees not to assist her. (Plaintiff.'s Resp. at 8.) As will be discussed infra, Fleetwood is entitled to summary judgment on the Plaintiffs non-essential duties claim and her instruction not to assist claim, but factual issues prevent summary judgment on her remaining workspace alteration claim.
As discussed supra, the Plaintiff can arguably make out a case that she is a qualified individual with a disability, therefore, to establish her prima facie case of pre-termination discrimination, she must also establish that the incidents amount to adverse employment actions. Dvorak, 289 F.3d at 483.
Fleetwood offers no legitimate non-discriminatory reason for any of these actions, but only argues that they do not amount to adverse actions. Accordingly, if any of them do constitute adverse employment actions, the Plaintiff's claims must be submitted to a jury.
Although adverse actions are defined "quite broadly," to be actionable, they must materially alter the terms, conditions, or benefits of employment. Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 612 (7th Cir. 2001); Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (discussing Title VII claim). Nevertheless, materially adverse employment actions are not limited to terminations, demotions, or changes in pay or monetary benefits, they can also be established by other changes in employment conditions. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994). Since this determination depends on the specific facts of each case, Traylor v. Brown, ___ F.3d __ 2002 WL 1484483, *3 (7th Cir. 2002); Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001), we will analyze each incident to determine whether the Plaintiff suffered a materially adverse employment action.
(a) Assignment of Additional, "Non-Essential" Tasks
First, the Plaintiff argues that Fleetwood's assignment of additional, "non-essential" tasks to her stiles machine position constitutes an adverse employment action.
Although the mere alteration of job duties is generally not actionable, Crady, 993 F.2d at 136, significantly reduced job responsibilities are. See Taylor, 2002 WL 1484483, at *3; Kersting, 250 F.3d at 1115; Oest, 240 F.3d at 612. Moreover, while we have found no cases holding that adding duties by itself is an adverse action, there may be a claim if those additional duties "qualitatively alter" the Plaintiffs responsibilities. See Dahm, 60 F.3d at 257 (qualitatively altered duties are actionable).
While the Plaintiff was clearly unhappy with Fleetwood's imposition of additional duties, we do not think these duties, even if non-essential, qualitatively altered her job responsibilities. Oest, 240 F.3d at 613 ("Not everything that makes an employee unhappy is actionable."). For example, in Dahm, the Seventh Circuit found that replacing a personnel director's responsibilities with mindless paperwork, a qualitative alteration, created an inference of an adverse action. Dahm, 60 F.3d at 257. In contrast, no such qualitative alteration occurred here. For example, the Plaintiff complains that she had to unload bundles of wood that were too heavy for her restrictions. However, the Plaintiff had always been required to unload wood for the stiles machine, and the fact that Fleetwood may have increased the size of the bundles is insufficient as a matter of law to constitute a materially adverse action. Oest, 240 F.3d at 613.
Finally, the Plaintiff complains that Fleetwood altered her job when it required her to distribute pieces of wood to other assemblers. However, this wood had always been delivered to the stiles area, and we cannot say that requiring the Plaintiff to deliver it to the assemblers (rather than having the assemblers pick up their own wood) materially changed her job either. Id.
Indeed, taken individually or collectively, these additional tasks do not rise to the level of a materially adverse employment action on which a separately cognizable disparate treatment claim can rest. Nevertheless, as will be discussed infra, they may be relevant with respect to the Plaintiffs hostile work environment and retaliation claims. See Oest, 240 F.3d at 613 (even non-actionable claims relevant to proving larger pattern of discrimination). Accordingly, summary judgment is appropriate on the Plaintiffs disparate treatment claim as it relates to the imposition of additional, non-essential tasks.
(b) Workspace Alteration
However, Fleetwood's alleged alteration of the Plaintiffs workspace presents a different situation. Adverse employment actions can take a number of forms, see Smart, 89 F.3d at 441, and significantly altering an employee's workspace may constitute one form since it materially alters one of the benefits of employment. For example, in Collins v. State of Illinois, the Seventh Circuit determined that removing an employee's office, phone and business cards, and assigning her to a bare desk materially altered the benefits of employment and was actionable. 830 F.2d 692, 704 (7th Cir. 1987). Likewise other courts have found adverse employment actions where an employee's office was moved to an undesirable location, see Trout v. Hidalgo, 517 F. Supp. 873, 890 n. 67 (D.D.C. 1981), aff'd in part sub nom. Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983), or when a factory worker was moved to an isolated corner of the plant. See Harris v. Richards Manufacturing Co., 511 F. Supp. 1193, 1203 (W.D. Tenn. 1981), aff'd in part, 675 F.2d 811 (6th Cir. 1982). See also Flaherty v. Gas Research Inst., 31 F.3d 451, 456-57 (7th Cir. 1994); McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 486 (7th Cir. 1996); Ledergerber v. Strangler, 122 F.3d 1142, 1145 n. 2 (8th Cir. 1997) (favorably citing Collins); Monica v. New York City Off-Track Betting Corp., 1995 WL 117879, *4 (S.D.N.Y. Mar. 20 1995) (favorably citing Collins).
Similarly, Fleetwood's alteration of the Plaintiffs workspace may constitute a materially adverse employment action. Indeed, the Plaintiff was taken from what she describes as an open, comfortable and safe workspace to one that was so cramped that it was like working in a "tunnel." (Pl. Aff ¶ 25). While this alone might not be enough to establish an adverse employment action, it was purportedly done with the knowledge that the Plaintiff is claustrophobic, (Id. ¶ 24), and the resulting workspace was declared dangerous by Fleetwood's Safety Coordinator, who ordered it reconfigured. (Id. ¶ 27.) Despite this directive, Fleetwood left the "tunnel" unchanged, and forced the Plaintiff to continue working in it indefinitely. On this record, a reasonable jury could conclude that Fleetwood's action materially altered a material benefit of employment. See Collins, 830 F.2d at 704; Trout, 517 F. Supp. at 890 n. 67; Harris, 511 F. Supp. at 1203. Accordingly, Fleetwood is not entitled to summary judgment on this claim.
While in Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 119 n. 2 (7th Cir. 2001) the Seventh Circuit noted, in dicta, that forcing an employee to work within a fenced in area known as "the cage" was not an adverse action, that case is readily distinguishable. For example "the cage" was not unsafe and did not hinder the employee's ability to perform his job. In fact, the employee in Kersting only expressed annoyance that working in "the cage" appeared to be a punishment (i.e., being behind bars). Id. In contrast, the "tunnel" here was cramped, unsafe, and apparently somewhat impaired the Plaintiffs productivity. (See Pl. Aff. ¶ 27.)
(c) Instructing Employees Not to Assist
Finally, the Plaintiff maintains that Bowen's instruction to other employees to help each other lift heavy items, but not to help the Plaintiff, amounts to a materially adverse action.
Although "[a] dirty look or the silent treatment" does not generally rise to the level of a materially adverse action, Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998), the Seventh Circuit has found that ordering others to shun an employee may be actionable if some material harm can be shown. See Parkins v. Civil Constructors of Ill., 163 F.3d 1027, 1039 (7th Cir. 1998); McKenzie v. Illinois Dep't of Trans., 92 F.3d 473, 485 (7th Cir. 1996) (citing Harris, 511 F. Supp. at 1203); Brychel v. West 2000 WL 134714, *6 (N.D. Ill. Feb. 3, 2000); Toga v. Cty. of Cook Herbert Hamako, 48 F. Supp.2d 1104, 1110 (N.D.Ill. 1999); also Simas v. First Citizen's Fed. Credit Union, 170 F.3d 37, 52 n. 12 (1st Cir. 1999); Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 428 (8th Cir. 1998); Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 693 (8th Cir. 1997). Moreover, while such institutional shunning typically involves the employer instructing other employees not to speak to the claimant, see Brychel, 2000 WL 134714 at *6, the situation here seems somewhat analogous. Indeed, Fleetwood supposedly told other employees not to help the Plaintiff lift any heavy objects or to otherwise assist her, while simultaneously encouraging them to help one another. In essence, it could be argued that Fleetwood instructed its employees to shun the Plaintiff if she asked for assistance.
However, we do not need to explore the analogy further since the Plaintiff makes no mention of any material harm arising from this behavior, and thus has failed to establish this claim as a matter of law. Id. Accordingly, Fleetwood is entitled to summary judgment on the Plaintiffs instruction not to assist claim.
However, as discussed more fully infra, these factual assertions are still relevant on the retaliation and ADA harassment claims.
B. THE PLAINTIFF'S RETALIATION CLAIMS
The Plaintiff also contends that Fleetwood retaliated against her when it terminated her after she filed a charge of discrimination with the EEOC, and when it altered her working conditions after she lodged several complaints with Fleetwood management. We will analyze both claims together.
In its motion for summary judgment, Fleetwood argues that the Plaintiff has no direct evidence of discrimination and cannot satisfy her burden under the indirect burden shifting method. In Stone v. City of Indianapolis, the Seventh Circuit clarified the methods of proving retaliation using either direct evidence or the indirect McDonnell Douglas framework. Stone, 281 F.3d at 644. We will discuss both routes infra.
In its motion for summary judgment Fleetwood relied on a three year-old case to set forth the applicable standard under the indirect route. (See Fleetwood's M. for Summ. J. at 7-8) (citing Silk v. City of Chicago, 194 F.3d 788, 799 (7th Cir. 1999) (prima facie case of retaliation requires the Plaintiff to establish that (1) she engaged in statutorily protected expression, (2) she suffered an adverse action, and (3) there is a causal connection between the protected expression and the adverse action)). Fleetwood then argued that the Plaintiff could not demonstrate the causal connection. However, the Seventh Circuit recently clarified the appropriate standard for retaliation, and held that the Plaintiff need not show such a causal link. See Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002)
1. Direct Evidence
Under the direct evidence route, the Plaintiff must present "direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that [she] engaged in protected activity ([e.g.,] filing a charge of discrimination) and as a result suffered the adverse employment action of which [she] complains." Id. If Fleetwood contradicts this evidence, the case must go to trial unless Fleetwood "presents unrebutted evidence that [it] would have taken the adverse employment action . . . even if it had no retaliatory motive." Id. Moreover, while temporal proximity between the filing of the protected speech and the action alleged may be evidence of retaliation, "it will rarely be sufficient in and of itself to create a triable issue." Id.
Nevertheless, direct evidence does not need amount to an admission of guilt, and there can be circumstantially direct evidence of a retaliatory motive. See Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994); In re High Fructose Corn Syrup Antitrust Litigation; ___ F.3d ___ 2002 WL 1315285, *8 (7th Cir. June 18, 2002) (applying Troupe to antitrust case); Logan v. Kautex Textron North America, 259 F.3d 635, 639 (7th Cir. 2001). One way to present a circumstantially direct case is to present a "convincing mosaic of [retaliation]," Troupe, 20 F.3d at 737, by assembling circumstantial evidence such as ambiguous comments by supervisors, suspicious timing, or inconsistent explanations or behavior, "which, taken together, would permit a jury to infer [retaliatory] intent." Piraino v. International Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996) (citing Troupe, 20 F.3d at 736); Bell v. E.P.A., 232 F.3d 546, 554 (7th Cir. 2000); Kaley v. Icon Intern. Inc., 2001 WL 1781898, *10 (S.D. Ind. June 18, 2001) (analyzing retaliation claim under Troupe).
In that regard, all that is required is evidence from which a rational trier of fact can reasonably infer that Fleetwood retaliated against the Plaintiff because she engaged in protected activity. See, e.g., Troupe, 20 F.3d at 737. Assembling the mosaic here, the evidence viewed most favorably to the Plaintiff suggests that Fleetwood, through Bowen, repeatedly altered the Plaintiffs working conditions and eventually terminated her for repeatedly complaining to management about discriminatory treatment and for filing a charge of discrimination with the EEOC.
For example, after the Plaintiff complained to Fleetwood's human resources department that Bowen was assigning non-essential tasks that violated her work restrictions, Bowen responded by threatening the Plaintiff with termination or some other reprisal if she complained again. Moreover, apparently on the heels of this threat, Bowen reconfigured the Plaintiffs workspace, forcing her to work in the uncomfortable and dangerous "tunnel," even though no other employee had to endure such cramped quarters.
Subsequently, the Plaintiff repeatedly complained about the tunnel to human resources and even to Fleetwood's safety coordinator, who found it unsafe and ordered it removed. Bowen apparently made good on her threat of reprisals because she then assigned the Plaintiff more non-essential tasks, refused to change the workstation, and again threatened to have the Plaintiff fired if she complained further.
Undeterred, the Plaintiff continued to lodge multiple complaints with management about her workspace, and they promised to improve it. However, the tunnel was never reconfigured, and the Plaintiffs complaints were again met with more threats of termination or other reprisals. Not long thereafter, in May 2000, Bowen instructed the Plaintiffs coworkers that they were to help one another lift heavy objects, but they were not to help the Plaintiff.
Apparently exasperated with Fleetwood's response to her internal complaints, the Plaintiff filed her first charge of discrimination with the EEOC on June 19, 2000, (Compl., Ex. A; Pl. Aff. ¶ 31), and 24 working days later she was terminated. Moreover, Fleetwood was apparently unaware of the charge until about July 12, 2000, (see Talamantes Decl. ¶ 16), and if true, fired the Plaintiff just 12 working days later.
Although nearly two months separated the charge and termination, Fleetwood was shut down for more than half that time (approximately 40 days), thus Fleetwood was actually in operation for only 24 days between the charge and termination.
Thus, piecing the mosaic together, we have Bowen's direct threats, the suspicious timing between the Plaintiffs protected speech and Fleetwood's adverse actions, and an apparent lack of managerial sincerity concerning Fleetwood's remedial promises. See Council 31, Am. Fed'n of State, County and Mun. Employees, AFL-CIO v. Doherty, 169 F.3d 1068, 1073 (7th Cir. 1999) (citing Troupe, 20 F.3d at 736-37). The resulting picture is enough that a reasonable jury could infer that Fleetwood was actually retaliating against the Plaintiff for engaging in protected activity. Therefore, we must deny summary judgment as to the Plaintiffs retaliation claims.
2. Indirect Method
Under the indirect McDonnell Douglas route, the Plaintiff may demonstrate retaliation by showing "that after filing the charge [or lodging internal complaints] only [she], and not any similarly situated employee who did not file a charge [or internal complaints], was subjected to an adverse employment action even though [she] was performing [her] job in a satisfactory manner. [But if] the defendant presents unrebutted evidence of a nonividious reason for the adverse action, [it] is entitled to summary judgment." Stone, 281 F.3d at 644.
The Plaintiff offered no evidence of any similarly situated employee, apparently unaware of the new analysis under Stone, but this makes no difference given that she has made out a circumstantially direct case of retaliation as discussed supra.
C. THE PLAINTIFF'S ADA HOSTILE WORK ENVIRONMENT CLAIM
Finally, the Plaintiff argues that Fleetwood subjected her to a hostile work environment because of her status as a disabled person. While the Seventh Circuit has not definitively held that a hostile work environment claim is cognizable under the ADA, it has at least assumed the existence of such claims. See Conley v. Village of Bedford Park 215 F.3d 703, 712-13 (7th Cir. 2000); Vollmert v. Wisconsin Department of Trans., 197 F.3d 293, 297 (7th Cir. 1999); Silk, 194 F.3d at 804. We will also assume that a hostile work environment claim is cognizable under the ADA and will analyze the Plaintiffs claim accordingly.
To prevail on her ADA hostile environment claim, the Plaintiff must follow the methodology already established in Title VII litigation, Silk, 194 F.3d at 804, and show that (1) the harassment was based on her disabled status; (2) the conduct was so severe or pervasive as to alter the terms or conditions of employment; and (3) there is a basis for employer liability. Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045 (7th Cir. 2002) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) and Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000)). We will analyze each requirement in turn.
1. The Harassment was Based on the Plaintiffs Disabled Status
First, the Plaintiff must show that Fleetwood's alleged discriminatory actions were motivated by disability animus. Id. Indeed, the ADA "is not directed at unpleasantness per se but only . . . against discrimination in the conditions of employment." Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 885 (7th Cir. 1998) (Title VII claim); Turner v. Housing Authority of Jefferson Cty., 188 F. Supp.2d 1066, 1075 (N.D.Ill. 2002). Here, an inference arises that Fleetwood's actions were actuated by the Plaintiffs status as a disabled person. Indeed, Bowen's discriminatory motives are revealed by the different treatment she accorded non-disabled employees. See Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) (citing Oncale v. Sundownder Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998) (plaintiff "may offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."). As discussed supra, Bowen routinely assigned only the Plaintiff with an array of non-essential tasks, tasks which not only violated her work restrictions, but which were not required of other employees. (Pl. Aff. ¶¶ 18; 37.) But Bowen allegedly did not stop there, she made conditions intolerable by instructing other employees not to assist the Plaintiff in lifting. Finally, the Plaintiff was apparently the only employee whose workspace was reconfigured (unsafely so, according to Fleetwood's Safety Coordinator), and ostensibly for no other reason but to exacerbate the Plaintiffs claustrophobic condition. All of this evidence would at least permit a jury to infer that Bowen's conduct was based on the Plaintiffs disabled status.
2. Bowen's Conduct was Subjectively and Objectively Offensive
Under the second requirement, the Plaintiff must show that Bowen's conduct was "sufficiently severe or pervasive `to alter the conditions of [her] employment and create an abusive environment.'" Cerros, 288 F.3d at 1046 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002). Indeed, a hostile work environment is one which is "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Hilt-Dyson, 282 F.3d at 463; Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000). "Whether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances." Harris 510 U.S. at 21.
First, the record demonstrates that the Plaintiff found Bowen's and Fleetwood's conduct to be subjectively offensive, (See Pl. Aff. ¶¶ 15, 16, 17, 22, 28), so we move on to the objective analysis.
Analyzing the objective prong, courts consider a variety of factors, including, "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. "[T]he standard is not what a reasonable person would be capable of enduring but whether the offensive acts alter the conditions of employment." Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 444 (7th Cir. 1994). Here, in addition to the evidence discussed supra at section C1 of this opinion, the record reveals that Bowen engaged in a course of conduct seemingly designed to interfere with the Plaintiffs ability to adequately perform her job. Indeed, Bowen frequently and routinely assigned non-essential tasks to the Plaintiff, apparently with full knowledge that they violated the Plaintiffs work restrictions. Nevertheless, even after management promised to remedy the situation, Bowen forced the Plaintiff to perform these tasks under the threat of termination. Thus, this all amounted to an objectively hostile atmosphere that altered the terms of the Plaintiffs employment. See Smith, 189 F.3d at 534 (a jury could conclude that repeated verbal abuse and threats created a hostile environment that alters the terms of the plaintiffs employment).
3. A Basis Exists to Hold Fleetwood Liable
Under the final prong of the analysis, an employer's liability for hostile environment ADA harassment "hinges on whether the harasser is the victim's supervisor or merely a co-employee." Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002); Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998) (citing Faragher, 524 U.S. at 807 (1998)). Where the harasser is a supervisor, an employer is strictly liable, although the employer may avoid that liability through an affirmative defense when the employee suffered no tangible employment action. Gawley v. Indiana Univ., 276 F.3d 301, 310 (7th Cir. 2001); Shaw v. Autozone, Inc., 180 F.3d 806, 811 (7th Cir. 1999). On the other hand, if the harasser is a mere co-employee, an employer is only liable "when [it has] been negligent either in discovering or remedying the harassment." Parkins, 163 F.3d at 1032 (quoting Perry v. Harris Chernipn, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997)); Hall, 276 F.3d at 356.
"In line with traditional agency principles, an employer may be held vicariously liable for the acts of those who can be considered `an employer's proxy,' such as `a president, owner, proprietor, partner, corporate officer, or supervisor hold[ing] a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer.'" Haugerud v. Amery School Dist., 259 F.3d 678, 697 (7th Cir. 2001) (quoting Johnson v. West 218 F.3d 725, 730 (7th Cir. 2000)). Although the record does not go into detail about whether Bowen was a supervisor, we know that she was described as the Plaintiffs "supervisor," and she certainly held herself out as having the authority to fire the Plaintiff. Hall, 276 F.3d at 355 (supervisor under ADA is person with power to "hire, fire, demote, promote, transfer, or discipline"). Thus, since we must at this stage give the Plaintiff every inference, we conclude for the purposes of summary judgment that Bowen was the Plaintiffs supervisor and thus Fleetwood is strictly liable for her actions. See, e.g., Gawley, 276 F.3d at 310.
However, even if Bowen was a mere co-employee, the Plaintiff has established a basis of liability since Fleetwood failed to take reasonable steps to stop the harassment. For example, while the Plaintiff repeatedly complained to human resources and management about Bowen's harassment and was assured it would stop, (Pl. Aff ¶¶ 21-22; 27; 29,) the harassment continued and actually grew worse. (Id. ¶ 21-22; 28; 29). Thus, a reasonable jury could determine that Fleetwood acted negligently in failing to remedy the harassment.
Accordingly, because there is sufficient evidence to allow this claim to go to a jury, Fleetwood's motion for summary judgment must be denied.
CONCLUSION
For the foregoing reasons, Fleetwood's motion for summary judgment is GRANTED as to the Plaintiffs claim of disparate treatment for being assigned additional duties and her claim that Fleetwood instructed employees not to assist, but the motion is otherwise DENIED.
The results here may be different at trial after a full evidentiary presentation. See, e.g., Fed.R.Civ.P. 50(a)(1). Accordingly, both sides should give careful consideration to settling this case.