Opinion
NA 99-108-C B/S.
September 21, 2001
ENTRY ON DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT
I. Introduction.
This is an employment discrimination case pursuant to the American with Disabilities Act, 42 U.S.C. § 12101 et se. The plaintiff, Linda Simler, alleges that she is a qualified individual with a disability and that her former employer, Harrison County Hospital, discriminated against her by selecting her for discharge during a reduction in force because of her disability, or, alternatively, because it regarded her as disabled.
The case is before the court on defendant's "renewed" motion for summary judgment on both "actual" disability and "regarded as" disabled claims. For the reasons that follow, we GRANT defendant's motion as to both claims.
Defendant originally filed a motion for summary judgment on May 11, 2000. On August 28, 2000, we denied the motion and remanded the matter to the EEOC for further administrative proceedings. See Simler v. Harrison County Hospital, 110 F. Supp.2d 886 (S.D.Ind. 2000). Defendant filed its renewed motion on June 15, 2001.
II. Statement of Facts.
The following facts are either uncontested or stated in a light reasonably most favorable to the plaintiff. All are supported by admissible evidence on the record.
A. Background.
Harrison County Hospital is located in Corydon, Indiana. Ms. Simler began working for the Hospital in 1979, initially as a ward clerk, responsible for transcribing orders, answering telephones, relaying information between patients and the nursing staff, and other secretarial tasks. In 1986, Ms. Simler became a Registered Nurse. She thereupon applied for, and was granted, a transfer to the position of staff nurse. As a staff nurse, her duties included maintaining patient charts, dispensing medications and treatments, and completing assessments. Prior to May 1995, Ms. Simler also worked as a staff nurse in the Intensive Care/Coronary Care Unit. Def. Facts, ¶¶ 1-8.
In May 1995, Ms. Simler transferred into the Home Health Department as a staff nurse. Initially, her primary responsibility there was to perform patient care services in patients' residences. Around October 1996, Ms. Simler became charge nurse/clinical coordinator in the Home Health Department. In this role, she continued to perform direct patient care duties, but her responsibilities were expanded to include supervisory and administrative duties, the latter of which included serving as liaison between nurses and physicians, auditing charts, scheduling the aides, and performing supervisory visits with the aides. Def. Facts ¶ 9, 11, 12, 13, 14.
Ms. Simler reported to Martha Harris, manager of the Home Health Department. In January of 1998, Ms. Harris told Ms. Simler that she was being removed from the charge nurse/clinical coordinator position and returned to a staff nurse position. Director of Nursing Lisa Steele later told Ms. Simler that the reason for the change in assignment was that Ms. Simler had provided nursing services to a patient without a physician's order, had failed to use proper record keeping practices on other occasions, and because Ms. Steele did not like Ms. Simler's attitude. Upon her return to the staff nurse position, Ms. Simler's duties focused mainly on direct patient care. Def. Facts ¶¶ 15-19.
Ms. Steele also told Ms. Simler that the Hospital was likely to conduct a reduction in force ("RIF") in the Home Health Department. Ms. Simler was told that the anticipated RIF was made necessary by changes in the Medicare laws, which spelled the end of some patients' eligibility for benefits and the reduction of benefits for others. As a result, the number of patients in the Hospital's home health program eventually declined from as many as eighty to as few as thirty. As a further result, Ms. Steele told Ms. Simler that one nurse was probably going to be let go. Def. Facts, ¶¶ 20-24.
B. Ms. Simler's Medical Leave and its Aftermath.
On February 25, 1998, Ms. Simler requested, and was granted, a leave of absence in order to undergo triple-bypass surgery. On May 21, 1998, Dr. Murphy released her to return to work without recording any restrictions. The release simply states: "OK to return to work 5/21/98." Def. Index Tab 4, Ex. 7. Although Ms. Simler agrees that Dr. Murphy did not record any work restrictions, she alleges that he told her to perform only as much work as she could tolerate. Upon her return to work, she resumed her position as a staff nurse in Home Health. At the time, Ms. Simler said that she was experiencing fatigue, shortness of breath and intolerance to heat while performing her job duties. Pl. Add. Facts, ¶ 82. Def. Facts, ¶¶ 26-30.
In view of the decline in the number of home health patients and Ms. Simler's concerns about her stamina and breathing, she was assigned to administrative duties in Home Health; these included quality assurance, auditing charts, and completing Home Health's patient admission process. From then on, Ms. Simler did not maintain a regular patient load, in the sense that she no longer served as "primary nurse" to any patients. Instead, in addition to her administrative duties, she engaged in patient care on an as-needed basis as a "floater." Def. Facts ¶¶ 31, 32.
On May 22, 1998, the day after her return, Ms. Simler applied for a transfer to the position of education/staff education coordinator. After interviewing for the job, however, she withdrew from consideration because she was concerned that her stamina may not have been adequate to a job that required as many as fifty hours per week, some of them during evenings and weekends. Def. Facts, ¶ 33, 34, 35.
In late August or early September, Ms. Simler applied for another transfer, this time to a surgeon's nurse position. The position went to another Hospital employee. Ms., Simler filed a grievance over being rebuffed for the position. She withdrew her grievance when she learned that the surgeon's nurse position was only part-time. Def. Facts, ¶¶ 37-38, 40-42.
C. Events Giving Rise to this Lawsuit.
In September 1998, the Hospital initiated the anticipated RIF in the Home Health Department. It is unchallenged that the Hospital conducted the RIF on the recommendation of consulting firm, Blue Co., which had completed a study of the continued operation and future financial position of the Home Health Department. Blue Co. recommended, among other things, that the Hospital reduce the number of nurses employed in Home Health. As part of the RIF, Ms. Steele authorized Ms. Simler to be laid off on October 2, 1998. Def. Facts, ¶¶ 43-46.
The Hospital asserts that, in selecting for the RIF, it chose between Ms. Simler and Ms. Harris, Charge Nurse/Clinical Coordinator, both of whom were performing largely the same administrative duties, which did not include revenue-earning patient care. Def. Facts, ¶ 49. Additionally, asserts the Hospital, although Ms. Simler retained the title of "staff nurse," she was, at the time of the RIF, performing mostly administrative duties and was not regularly assigned to provide care to patients of her own. She continued to provide nursing services as a "floater." Def. Facts ¶¶ 47-48. Ms. Simler alleges that, since she remained a "staff nurse," the choice was actually between herself and the other staff nurses: Carole Kintner, Becky Fudge, Paula Key, and Martha Harris, all of whom were nurses in her Department. Pl. Add. Facts, ¶ 94. Ms. Simler does not contest the Hospital's assertions that Ms. Harris had been employed at the Hospital and in the Home Health Department for a longer period of time than Ms. Simler and that Ms. Harris occupied the position from which Ms. Simler had been demoted. Def. Facts, ¶¶ 50, 51. Nor does Ms. Simler challenge the Hospital's statements that Director of Nursing Steele believed Ms. Harris to be more knowledgeable about Home Health operations, or that, in selecting Ms. Simler for the RIF, Ms. Steele considered Ms. Simler's January 1998 discipline for deficiencies in record keeping practices, performing medical services without a physician's order, and attitude. Def. Facts ¶ 52, 53.
At the time of the layoff, Ms. Simler was offered the opportunity to continue employment on an "as needed" basis and to apply for other jobs in the Hospital. Ms. Simler declined the offer. Def. Facts, ¶ 54, 55. Two weeks after her termination, Ms. Simler accepted a full-time job with Humana Insurance as an R.N. case manager. Def. Facts, ¶ 56. Ms. Harris took over most of Ms. Simler's former duties. Other responsibilities were taken over by other staff nurses. Def. Facts, ¶ 57, 58. During the RIF, the Hospital also laid off Becki Fudge, a staff nurse, and Roxanne Dycus, the office coordinator. The Hospital does not deny that it later reemployed Ms. Fudge as a nurse in intensive care and Ms. Dycus once again as office coordinator. Def. Facts, ¶¶ 59, 60.
III. Analysis.
A. The Standard on Summary Judgment
Summary judgment was not designed to be a "paper trial." Instead, on a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994); Winter v. Minnesota Mutual Life Insurance Company, 199 F.3d 399, 408 (7th Cir. 1999). Also see Harbison v. The Prestige Group, 2001 WL 395786 (S.D.Ind. 2001) at *1; Moore v. Hosier, 43 F. Supp.2d 978, 987-988 (N.D.Ind. 1998). It may also be noted that, while the grant of a motion for summary judgment effectively ends a lawsuit on the merits, the denial of a summary judgment motion is "strictly a pretrial order that decides only one thing — that the case should go to trial." Denial of the motion "does not settle or even tentatively decide anything about the merits of the claim." Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966). See Watson v. Amedco Steel, Inc., 29 F.3d 274, 277 (7th Cir. 1994).
Thus, "summary judgment serves as the ultimate screen to weed out truly insubstantial lawsuits prior to trial." Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 1598, 140 L.Ed.2d 759 (1998); Higgs v. Carver, 2000 WL 1902190 (S.D.Ind. 2000) at *2. It is not, however, a substitute for a trial, notwithstanding the "drift" in that direction that then — Chief Judge Posner noted in Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997). In considering a motion for summary judgment, the court must draw all inferences in a light reasonably most favorable to the non-movant. It is neither the Court's job nor is it within the Court's competency to resolve swearing contests; nor may the Court choose among disputed issues of fact. Weeks v. Samsung Heavy Industries Company, Limited, 126 F.3d 926, 933; Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997). In determining a motion for summary judgment, the court bears in mind that a genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998). "Material facts are those which might affect the outcome of the suit" under the prevailing substantive law. Insolia v. Philip Morris Inc., 216 F.3d 596, 598-99 (7th Cir. 2000); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. See Local Rule 56.1(h) ("For purposes of summary judgment, a material fact is a potentially outcome determinative fact." An issue is "genuine" if a reasonable trier of fact could find in favor of the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
On summary judgment, the initial burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party shows the absence of a genuine issue for trial, the burden shifts to the non-movant, which must "go beyond the pleadings," to present evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. If the party opposing summary judgment fails to present evidence that would reasonably permit the finder of fact to find in its favor on a material question, then the court must enter summary judgment against the non-movant. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52).
B. Ms. Simler's Disability Claims
1. Relevant Provisions of the ADA.
The ADA prohibits employers from discriminating against qualified individuals with disabilities on the basis of their disabilities. 42 U.S.C. § 12112(a). The statute defines the term "disability" in three different ways, two of which are pertinent here. 42 U.S.C. § 12102(2). One is an "actual" disability — that is, a physical or mental impairment that substantially limits one or more major life activities. Section 12102(2)(A). The second is often called a "perceived" disability, a circumstance in which the employer erroneously regards the employee as having a disability when the employee has no disability at all, or where the employee does have a disability but the employer erroneously believes that the disability is more severe than it actually is. Section 12102(2)(C); Sutton v. United Airlines, 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-2150, 144 L.Ed.2d 450 (1999); Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000).
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
See Riemer v. Illinois Dept. of Transp., 148 F.3d 800, 806 (7th Cir. 1998); Baulos v. Roadway Exp., Inc., 139 F.3d 1147, 1153-1154 (7th Cir. 1998); Leisen v. City of Shelbyville, 153 F.3d 805, 807, (7th Cir. 1998); Hoeller v. Eaton Corp., 149 F.3d 621, 624-25 (7th Cir. 1998).
Ms. Simler alleges that the Hospital discriminated against her by selecting her for the RIF on the basis of her disability: she was substantially limited in the major life activity of breathing. Alternatively, she alleges that the Hospital selected her for the RIF because it perceived her to be disabled in that it regarded her as substantially limited in the major life activity of breathing. Breathing is a major life activity for purposes of the ADA. 29 C.F.R. § 1630.2(i); Mattice v. Memorial Hospital of South Bend, 249 F.3d 682, 685 (7th Cir. 2001).
Ms. Simler's complaint expressly alleges discrimination only on the basis of her "actual" disability. Since her EEOC charge also mentions a "regarded as" claim and since the parties have briefed the "regarded as" theory as well as the "actual" disability claim, we address the perceived disability claim here as well. Contrary to defendant's theory of the case, Ms. Simler expressly observes that "breathing" is the only major life activity that she invokes. Pl. Brief, p. 10 ("Plaintiff has not alleged that she is substantially limited in the major life activity of working.").
Major life activities include: "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." They also include: "sitting, standing, lifting, reaching." 29 C.F.R. § 1630.2(i).
2. Ms. Simler's Disparate Treatment Claims.
Ms. Simler's disparate treatment claims are governed by traditional employment discrimination proof schemes. Absent direct evidence of discrimination, to which Ms. Simler makes no claim, she may establish a prima facie case of disparate treatment under the ADA, by showing that: (1) she was "disabled" as defined by the ADA (whether "actual" or "regarded as"); (2) her work performance met the Hospital's legitimate expectations; (3) she suffered an adverse employment action; and (4) the circumstances surrounding the adverse action indicate that it is more likely than not that her disability was the reason for the adverse action. Zakaras v. United Air Lines, Inc., 121 F. Supp.2d 1196, 1215-1216 (N.D.Ill. 2000). See, Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999). Ms. Simler's disparate treatment claims — she was selected because of her disability or because the Hospital regarded her as disabled — rest on the same set of facts.
Ms. Simler suggests a different rendition of this analysis in the context of a RIF: (1) she is a member of a protected class (that is, she had a disability); she was performing her job satisfactorily; she was laid off in a RIF; and others not in the protected class were treated more favorably. Pl. Opp., p. 3, citing Cable v. Ivy Tech State College, 200 F.3d 467, 476 (7th Cir. 2000). The two variations are all but identical. Only the fourth factor is different and evidence that similarly-situated others were treated more favorably would certainly be evidence that, under the circumstances, it is more likely than not that her disability was the reason for the adverse action.
The scope of the analysis here is narrowed because defendant acknowledges that it did not select Ms. Simler for the RIF because her work performance was inadequate. It explains that it did so because it perceived Ms. Simler and Ms. Harris as a duplication of effort and it valued Ms. Simler's continued employment less than the continued employment of Ms. Harris. See Def. Response to Pl. Add. Facts ¶ 80. It follows that Ms. Simler initially satisfies two of the prima facie criteria: she was performing her job satisfactorily; and she suffered an adverse employment action.
The Hospital states in pertinent part: "The Hospital has not disputed whether Plaintiff was adequately performing her job. Rather, the Hospital contends that Plaintiff was not performing her job as well as Ms. Harris, the other nurse that was evaluated with respect to selection for layoff." Resp. to Pl. Add. Facts, ¶ 80.
We find, however, that Ms. Simler has presented legally insufficient evidence of the other two criteria: first, that at the time she was selected for the RIF, she had a disability (whether actual or perceived); and, second, even if she had evidence of a disability, that there is a causal connection between her disability (whether actual or perceived) and her selection for the RIF. In sum, Ms. Simler must present evidence sufficient to raise two inferences: (1) that she had a disability or that the Hospital regarded her as disabled; and (2) that it selected her for the RIF because of her disability or because it perceived her to be disabled. Her evidence is insufficient to prove either claim.
1. Ms. Simler's Actual Disability Claim.
We turn, first, to the evidence supporting Ms. Simler's claim that she had an actual disability. In order to prevail, Ms. Simler must present evidence that she was a "qualified individual with a disability." To be considered a "qualified individual with a disability," Ms. Simler must satisfy two sets of criteria: she must present evidence showing that she is an individual with a disability who has the requisite skills, training, experience, and certifications to perform the job she is doing or seeks to do; and she must present evidence showing that he can perform the essential functions of the job either with or without an accommodation. Bultemeyer, 100 F.3d at 1284; Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996). Significantly, the determination as to whether one is a "qualified individual with a disability" is made at the time of the employment decision at issue. 29 C.F.R. § 1630.2(m); Lawson v. CSX Transportation, Inc., 245 F.3d 916, 928 (7th Cir. 2001); Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001).
The EEOC's Guidance, 29 C.F.R. § 1630.2(m) states: "The determination of whether an individual with a disability is qualified is to be made at the time of the employment decision. This determination should be based on the capabilities of the individual with a disability at the time of the employment decision, and should not be based on speculation that the employee may become unable in the future or may cause increased health insurance premiums or workers compensation costs."
In this case, the relevant date is October 2, 1998, the date on which Ms. Steele selected Ms. Simler for the RIF. And the relevant question is whether, on that date, Ms. Simler was substantially limited in the major life activity of breathing. All of the evidence that Ms. Simler presents concerning her disability is evidence that she had a disability (if at all) on or after February 23, 2000 — nearly two years after the RIF. Even then, her physician Dr. Ballard concluded that: "The patient should be able to perform job duties that fall within the activity level performed [sic] at her functional capacity testing." Pl. Evidence Tab A, Ex. 2. On May 24, Dr. Ballard added in an explanatory letter to attorney Bart Colomb that Ms. Simler suffered from lower back pain, degenerative disk [sic] disease, and spondylolisthesis, coronary artery disease, status post coronary bypass grafting, hypertension, depression, diabetes, and increased problems with back pain." In the same document she also recommended that Ms. Simler not engage in repetitive bending and stooping; she should have the freedom to stand or sit as needed; she should not crouch or crawl; and she should not lift more than 50 pounds "as a very occasional maximum" and no more than 20 pounds five or six times per hour. Pl. Evidence, Tab A, Ex. 3.
It is questionable whether the evidence of these symptoms permits a reasonable inference that Ms. Simler was substantially limited in the major life activity of "breathing," and, therefore, whether the symptoms constitute a breathing "disability" for purposes of the ADA. But we need not reach that issue because, even if we assume that Dr. Ballard's reports and records are sufficient to show that Ms. Simler had a disability as of February 2000, we cannot infer from that evidence that Ms. Simler had the disability in October of 1998 when Ms. Steele made the RIF decision. Absent evidence showing that she had such symptoms in October 1998, no reasonable inference that she had a disability is permissible. It should go without saying that physical conditions change over time, for better and for worse. It is impermissible to draw inferences about a person's condition in October 1998 from medical evidence applicable to February 2000.
One is "substantially limited" in a major life activity if she is:
(i) [u]nable to perform a major life activity that the average person in the general population can perform; or
(ii) [s]ignificantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j). See E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 438 (7th Cir. 2000); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998).
Nor does Ms. Simler present other, non-medical evidence from which a reasonable inference may be drawn that Ms. Simler had a disability in October 1998. She asserts that, when she returned from her surgical leave, she had difficulty breathing and that she complained about diminished stamina and fatigue. She adds that she told everyone about her difficulties. We will assume these assertions to be true; we also will assume that difficulty in breathing and diminished stamina constitute "impairments." An "impairment," however, does not necessarily rise to the level of a "disability." The EEOC has observed that: "Many impairments do not impact an individual's life to the degree that they constitute disabling impairments." EEOC Guidance, 29 C.F.R. § 1630.2(j) (emphasis added). See Ragan v. Jeffboat, 149 F. Supp.2d 1053, 1067 (S.D.Ind. 2001) (and cases cited there).
The ADA requires a showing of more than "impairment"; it requires a showing that the impairment substantially limits a major life activity. The plaintiff must show that she is "[u]nable to perform a major life activity that the average person in the general population can perform; or that she is "[s]ignificantly restricted as to the condition, manner, or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). See E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 438 (7th Cir. 2000); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998). Ms. Simler has presented no evidence tending to raise an inference that, at the time of the RIF, she either could not breathe or that she was significantly less able to breathe than the average person in the general population.
Additionally, there is other unchallenged evidence tending to show that Ms. Simler's impairment did not substantially limit her in the major life activity of breathing. First, Dr. Murphy released Ms. Simler to return to work without noting any limitations on his release form. Indeed, the release contains only a terse okay to return. The lack of written restrictions, while certainly not dispositive, tends to militate against an inference that Ms. Simler had an impairment that substantially limited a major life activity. We assume as true that, upon her return to work, Ms. Simler mentioned her lowered stamina and breathing difficulty. But this raises an inference, at most, that others were aware of a breathing impairment. See, e.g., Amadio, 238 F.3d at 925 It does not support a reasonable inference that she was disabled.
Second, Ms. Simler expressly observed that she did not ask for any sort of accommodation for her breathing disability. Pl. Brief, p. 11. Indeed, she argues that she was performing her job — or, more precisely, the administrative job to which she was assigned — without any accommodation. We do not suggest that Ms. Simler was obliged to ask for an accommodation in order to prove that she had a disability. We merely note that doing so would have provided some support for the assertion that she suffered from an actual disability.
In view of her specific allegations that she should have been provided other employment opportunities or rehired after the RIF, it is surprising that Ms. Simler did not allege that the Hospital failed to provide her a reasonable accommodation. See Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1996). See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). Since Ms. Simler did not raise that independent cause of action and since the parties did not brief it, we offer no opinion as to its merits.
It is true that Ms. Simler disowns any allegation that she was substantially limited in her ability to work. Nevertheless, we note, without applying the law, that a plaintiff claiming that she is substantially impaired in the major life activity of working is subject to the requirements outlined by the Supreme Court in Sutton: she must show that she is limited not merely in her ability to perform her own job, but also that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Sutton, 527 U.S. at 473, 119 S.Ct. at 2142 (emphasis added); 29 C.F.R. § 1630.2(j)(3)(i); See, Mattice v. Memorial Hospital of South Bend, 249 F.3d 682, 685 (7th Cir. 2001); EEOC v. Rockwell International Co., 243 F.3d 1012, 1017 (7th Cir. 2001).
In sum, the only evidence Ms. Simler presents in support of her allegation that she had an actual disability in October 1998 is: (a) her statements that, upon her return to work, she was short of breath and lacked stamina, evidence which is insufficient as a matter of law to support an inference of an actual disability; and (b) her physician's reports of nearly two years later, which, even assuming they established a disability in February 2000, are irrelevant to the question of whether she had a breathing disability at the time of the RIF decision of October 1998.
2. Ms. Simler's Regarded-As Claim.
In addition to protecting a qualified individual with an actual disability against an adverse employment action, the ADA also protects such a person from discrimination by an employer which regards her as disabled. In Sutton v. United Airlines, 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-2150, 144 L.Ed.2d 450 (1999), the Supreme Court noted two ways in which an individual may fall within the "regarded as" category. Both are based on the employer's misperception. One is where the employer mistakenly believes that the employee has a physical impairment that substantially limits a major life activity, when the employee has no impairment at all; the other is where the employer correctly perceives the employee to have an impairment, but erroneously perceives the impairment to be more limiting than it actually is. The Court continued:
In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often "resul[t] from stereotypic assumptions not truly indicative of . . . individual ability."
Id. See Harrington v. Rice Lake Weighing Systems, Inc., 122 F.3d 456, 459 (7th Cir. 1997); EEO Guidance, 29 C.F.R. Appendix, § 1630.2(l).
a. The Prima Facie Case.
Ms. Simler argues that the Hospital subjected her to a game of heads-we-win, tails-you-lose. First, after she returned from surgical leave, she was assigned administrative duties instead of nursing duties, even though she was capable of performing her nursing duties. Then, when it came time to make selections for the RIF, she was dispensable because she was not performing the more profitable nursing duties. Additionally, she was compared only to Ms. Harris, who also was performing administrative duties, instead of being compared to all of the staff nurses in the Home Health Department. As plaintiff readily acknowledges, it was a "foregone conclusion" that, in a head-to-head comparison, Ms. Harris would be retained rather than Ms. Simler. Pl. Opp. Brief, p. 14. In sum, Ms. Simler concludes that her selection for the RIF was a self-fulfilling prophecy: she was assigned to administrative duties because the Hospital regarded her as disabled; and then she was selected for the RIF because she was performing administrative duties.
Ms. Simler's argument, while plausible, is unsupported by legally sufficient evidence. Her evidence for the proposition that she was perceived as disabled will not bear the weight of the inferences she wishes to draw from it. Her evidence that the Hospital then acted on the basis of the perception is virtually non-existent.
Ms. Simler acknowledges that Ms. Steele made the decision to select her for the RIF. Def. Facts ¶ 46. Accordingly, Ms. Simler must present evidence that Ms. Steele made the decision because of her perception that Ms. Simler had a breathing disability. See Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997); Willis v. Marion County Auditor's Office, 118 F.3d 542, 546 (7th Cir. 1997). We note once again, that the perception that an employee is "impaired" is not equivalent to a perception that the employee is "disabled." We must first determine whether Ms. Simler was a qualified individual with a disability in the sense that Ms. Steele perceived her to be disabled. We must then determine whether Ms. Steele selected her for the RIF because of the misperception. Wright v. Illinois Department of Corrections, 204 F.3d 727, 730 (7th Cir. 2000).
To support the proposition that Ms. Steele perceived her as disabled, Ms. Simler shows that: when she returned from surgical leave, she told "everyone" about her diminished stamina and difficulty in breathing; she was assigned to administrative duties instead of her regular nursing duties; she was laid off instead of other "arguably" less well qualified nurses; and other nurses were hired back after the RIF, but she was not.
This evidence is insufficient to support Ms. Simler's desired inferences. First, the mere fact that she told "everyone" (including, presumably, Ms. Steele) of her reduced stamina and difficulty breathing, is insufficient to raise a reasonable inference that Ms. Steele perceived her to be disabled. At most it shows that Ms. Steele was aware of her complaints. Ms. Steele does not contest that fact. Def. Index, Tab 8, ¶ 18. It cannot raise a reasonable inference that Ms. Steele was motivated by the knowledge. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 (7th Cir. 1998).
Second, she wishes to raise an inference that her assignment to administrative duties after her return from surgical leave is an indication that Ms. Steele believed she couldn't perform her regular nursing duties because of her health. She acknowledges, however, that she was assigned to administrative duties because of the decline in the number of home health patients and because she complained of diminished stamina, fatigue, and breathing difficulties. Def. Facts ¶¶ 31, 32. Although on summary judgment we make all reasonable inferences in favor of the nonmoving party, this smacks of revisionism: that is, an act that appeared to be an accommodation in May 1998 has become, in opposition to summary judgment, an act of discrimination designed to oust her from employment. Tellingly, however, Ms. Simler acknowledges that "she enjoyed doing admissions and did not object to the assignment." Pl. Opp., p. 11.
Third, Ms. Simler cannot raise an inference of discrimination by referring to nurses who were not laid off as "arguably" less qualified than she. Pl. Brief, p. 9. For purposes of a prima facie case we accept as true that plaintiff was performing her own job satisfactorily. But inferences about others' qualifications require evidence and she offers nothing but her own assertion that any nurse who was not laid off was less well qualified. See, e.g, Fortier v. Ameritech Mobile Communications, Inc., 161 F.3d 1106, 1114 (7th Cir. 1998); Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir. 1996).
Finally, the fact that office manager Roxanne Dycus, was rehired as office manager after the RIF, raises no inference at all, since it is not even plausible that Ms. Simler and the office manager were similarly situated. As to nurse Becky Fudge being rehired and reassigned to intensive care, this fact might have some evidentiary power if this were a failure-to-rehire case; it might even have some evidentiary power if we knew when the subsequent rehire took place. See Pl. Resp. to Def. Facts ¶ 60. We know that Ms. Simler was employed by Humana Insurance about two weeks after she was laid off. Def. Facts, ¶ 56. Was Ms. Fudge rehired before Ms. Simler's subsequent hire by Humana? Did Ms. Simler express any interest in being rehired by the Hospital after the RIF? Was Ms. Steele responsible for the rehires? Absent evidence that the rehires are somehow connected to the RIF decision, they are simply subsequent events that have no bearing on Ms. Steele's selection of Ms. Simler for the RIF.
In short, Ms. Simler's evidence fails to raise two prima facie elements of her regarded-as claim: it will not support an inference that Ms. Steele perceived her to be disabled; and, even if it did, it will not support an inference that Ms. Steele acted on the unlawful perception in selecting her for the RIF.
b. Evidence of Pretext.
Although we have held that Ms. Simler's evidence is insufficient to establish a prima facie showing of discrimination, we briefly entertain her view that the Hospital's explanation of why it selected her is pretextual. Ms. Simler may prove that the Hospital's explanation is pretextual by showing that its explanation is unworthy of credence or that a discriminatory reason more likely motivated it. Debs v. Northeastern Illinois University, 153 F.3d 390, 395 (7th Cir. 1998). For purposes of employment discrimination law, "pretext" means "a lie" or "a phony reason" for some adverse employment action. Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). "Pretext means more than an unusual act or a bad business decision; it is a lie or `deceit used to cover one's tracks.' Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684, 685 (7th Cir. 2000).
The Hospital explains Ms. Simler's selection as follows. The RIF was economically motivated. On the recommendation of an outside consulting firm, the Hospital decided to cut one person from the Home Health Department. It narrowed its choices to Ms. Simler and Ms. Harris because both were engaged in administration, which, unlike direct patient care, tends not to generate revenues. It chose to retain Ms. Harris because Ms. Harris had been employed longer than Ms. Simler and that Ms. Harris occupied the position from which Ms. Simler had been demoted. Additionally, Director of Nursing Steele believed Ms. Harris to be more knowledgeable than Ms. Simler about Home Health operations. Ms. Steele also considered Ms. Simler's January 1998 discipline in arriving at her decision.
Although Ms. Simler questions the consistency of some of these explanations for her selection, she acknowledged in her Responses to defendant's statements of fact that:
• She was, at the time of the RIF, performing mostly administrative duties and was not regularly assigned to provide care to patients of her own. She continued to provide nursing services only as a "floater." Def. Facts ¶¶ 47-48.
• Ms. Harris had been employed longer and Ms. Harris occupied the position from which Ms. Simler had been demoted. Def. Facts, ¶¶ 50, 51.
• Ms. Steele believed Ms. Harris to be more knowledgeable about Home Health operations.
• In selecting Ms. Simler for the RIF, Ms. Steele considered Ms. Simler's January 1998 discipline. Def. Facts ¶ 52, 53.
Unless Ms. Simler can show that the Hospital's explanation is phony, these are fatal admissions. In opposition to defendant's plausible and substantiated explanation as to why it selected her for the RIF, Ms. Simler counters that the Hospital really was choosing between herself and all of the other staff nurses: Carole Kintner, Becky Fudge, Paula Key, and Martha Harris. Pl. Add. Facts, ¶ 94. But plaintiff provides no support for that proposition. Since she admits that she was performing mostly administrative duties and providing nursing care only on an as-needed basis in support of other nurses, it would be unreasonable to view Ms. Simler and the other nurses as similarly situated. Instead, even though Ms. Simler retained the title of "staff nurse," there is no evidence to refute Ms. Steele's explanation that Ms. Simler and Ms. Harris were similarly-situated; indeed that they represented a duplication of effort.
Ms. Simler incorrectly implies that it is enough to show that the other nurses had no "observable" disabilities. Since her theory of the case is that she was regarded as disabled, the issue is whether Ms. Steele regarded any of the others as disabled. There is no evidence concerning which nurses, if any, Ms. Steele regarded as disabled, and no evidence to show that she treated them more favorably because she did not perceive them as disabled. See Amadio, 238 F.3d at 925.
As plaintiff realizes, this is an "honest belief" case. See, Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289-290 (7th Cir. 1999); Debs, 153 F.3d at 396. To defeat the Hospital's explanation, Ms. Simler must show either that Ms. Steele did not really believe the things that Ms. Simler acknowledges Ms. Steele really believed! Or that Ms. Steele really acted on the basis of a different and unlawful motive. In sum, Ms. Simler must present evidence that shows Ms. Steele did not honestly believe the reasons it offered. Bell v. Environmental Protection Agency, 232 F.3d 546, 550 (7th Cir. 2000).
The last arrow in Ms. Simler's quiver as to the Hospital's honest belief is that the Hospital has offered conflicting explanations as to why it selected Ms. Simler for the RIF. Ms. Simler argues that the Hospital stated in January 1998 that its criteria would be "productivity, quality of work, and attitude," yet it explained the basis of Ms. Simler's selection in October 1998 as "seniority," "knowledge of the department's operations," and "prior discipline." In the context of an economically motivated RIF, we find these criteria similar enough not to warrant the epithet "contradictory." Surely attitude and prior disciplinary record are consistent with one another, and productivity and knowledge of the operations are closely enough related. In order to raise an inference of pretext from the employer's articulation of conflicting criteria, the Seventh Circuit requires some showing that the statements are contradictory or involve retractions of earlier statements. Johnson v. Nordstrom, Inc., 260 F.3d 727, 2001 WL 818874 (7th Cir. July 20, 2001) ("not only shifting but also conflicting, and at times retracted, justifications for adverse treatment" may raise inference). We do not view the Hospital's statements of the criteria to create an either/or: either the standard was "productivity, quality of work, and attitude" or "seniority," "knowledge of the department's operations," and "prior discipline."
Moreover, both sets of criteria articulate performance-related, non-discriminatory factors. Absent some indication that the Hospital materially altered its criteria in order to hide an unlawful motive (e.g. the changed criteria were designed to select with particularity for the plaintiff), we do not view the differences here to be significant enough to raise an eyebrow. The Hospital's case on summary judgment rises or falls on the explanation it actually gave as to why it selected Ms. Simler for the RIF. That explanation is facially non-discriminatory and there is no evidence to suggest that it isn't the true one.
IV. Conclusion.
For the reasons discussed, we find that the plaintiff has not presented legally sufficient evidence to raise a genuine issue of material fact as to either claim and that defendant is entitled to judgment as a matter of law as to both. Accordingly, we GRANT defendant's motion for summary judgment and dismiss plaintiff's claim pursuant to Fed.R.Civ.P. 56.