Opinion
Case No. 97 C 3777.
June 29, 1999
MEMORANDUM, OPINION AND ORDER
This case is before the court on the motion of defendant Walgreen Company ("Walgreens") for summary judgment. For the reasons stated below, we grant the motion for summary judgment.
BACKGROUND
Plaintiff Dho Cho claims that Walgreens discriminated against him in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. sec. 12101, et. seq. because he has cerebral palsy. Cho claims that Walgreens denied him a reasonable accommodation for his cerebral palsy, harassed and abused him because of his cerebral palsy, and retaliated against him for filing EEOC charges of discrimination by demoting him and subsequently terminating him.
The undisputed facts show that Cho has a mild form of cerebral palsy for which he takes no medications. Cho's cerebral palsy causes him to walk with a slight limp, but he does not require braces or crutches to walk or to stand, and there is no limit on the amount of time that he can spend walking or standing.
Cho's cerebral palsy also causes him to take a little more time to perform activities that require fine muscular coordination with his fingers or hands. This, however, did not affect his ability to work at any of the jobs he held prior to working at Walgreens, and it did not preclude him from performing any jobs or tasks when he worked at Walgreens. In fact, Cho worked at Walgreens for over two years before anyone at Walgreens even knew that he had cerebral palsy.
Cho worked at Walgreens from February 9, 1994 until May 19, 1997. In April 1995, he was promoted to the position of assistant manager. From that time until May 1997, Cho worked as an assistant manager at a number of Walgreens stores in the Chicago land area.
Cho worked at the Walgreens store in Lake Zurich, Illinois from February through June 1996. Murrie Boston, Cho's store manager, thought that Cho's work was below standard in a number of respects: Cho failed to complete many of the projects on which he worked, his work quality was often unacceptable, he at times ignored his duties and responsibilities, and he did not consistently ensure the security of store funds. Boston gave Cho verbal warnings regarding his performance problems, which she later confirmed in written memoranda.
Although Boston recommended to Christine Whelan, her district manager, that plaintiff be terminated, Whelan instead chose to transfer Cho in June 1996 to the Walgreens store located at 89 West Golf Road in Arlington Heights. This store was not as busy as the Lake Zurich store, and Whelan believed that Cho might perform better in a less hectic work environment. Cho, however, did not rectify his performance problems. Gary Olsen, Cho's store manager, complained to Whelan that Cho failed to get his work done in a timely manner, left assignments incomplete, made excessive cash handling errors, and often left the store in substandard condition.
On January 7, 1997, Whelan transferred Cho to the Walgreens store located at 2 South Dryden Avenue in Arlington Heights. Whelan wanted Cho to work with Scott Vickers, the store manager who had originally recommended Cho for promotion to the position of assistant manager. Whelan believed that Cho could succeed at the 2 South Dryden store because he would be working with Vickers, a manager whom Cho liked and with whom he had worked well in the past. Moreover, the store already had two assistant managers who would provide Cho with additional training and support. Unfortunately, Cho's performance problems continued. He did not complete his work in an accurate, timely and efficient manner, and failed to pay sufficient attention to detail.
At the time he was transferred to the 2 South Dryden store, Cho was an assistant manager in the "MGT" job classification, which meant that he was eligible for promotion to the position of executive assistant manager. After working with Cho for approximately one month, Vickers told Whelan that, because of Cho's performance, he no longer believed that Cho was qualified for the MGT job classification. Vickers told Whelan that he believed the "AMN" job classification was more appropriate for Cho. Accordingly, in February 1997, Whelan and Vickers decided to take Cho out of the MGT promotion track, and to assign Cho to the AMN job classification.
When Cho first began working for Walgreens in 1994, he was informed of a Walgreens policy that forbids all non-exempt employees from "working off the clock", i.e., punching out on the time clock but continuing to perform work. This policy is designed to protect Walgreens' employees from uncompensated work and to protect Walgreens from liability under the Federal Fair Labor Standards Act. Despite being aware of this policy, and despite his managers' repeated instructions that he not do so, Cho admittedly worked off the clock throughout his employment with Walgreens. Cho was discharged on May 19, 1997.
In its summary judgment motion currently before the court, Walgreens argues that Cho's claims of discrimination and retaliation fail as a matter of law. First, it argues that Cho's cerebral palsy is not a "disability" as defined under the ADA because it does not substantially limit any of his major life activities. Next, Walgreens argues that Cho never filed an EEOC charge alleging that he was harassed because of his disability. Third, Walgreens argues that even if Cho had filed an EEOC charge alleging disability harassment, the claim is deficient as a matter of law. Finally, Walgreens argues that Cho has no evidence to support his claim of retaliation and, therefore, summary judgment is appropriate.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party.Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
I. Cho Does Not Have A Disability
A. Cho Does Not Meet The Definition Of "Disabled"
The ADA proscribes discrimination against a "qualified individual with a disability because of the disability." 42 U.S.C. S 12112(a). It is a plaintiff's burden to establish that he is disabled as defined by the ADA. Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir. 1995).
The ADA defines a "disability" as: "(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." 42 U.S.C. S 12102(2).
Although Cho's cerebral palsy may be considered a minimal impairment, "not every `impairment' is necessarily an ADA `disability.'" Roth v. Lutheran General Hospital, 57 F.3d 1446, 1454 (7th Cir. 1995). Rather, only an impairment that "substantially limits one or more major life activities" constitutes a disability. 42 U.S.C. sec. 12102(2). This determination is made "on an individualized case-by-case basis" and is "not necessarily based on the name or diagnosis of the impairment the person has, but on the effect of that impairment on the life of the individual." Merry v. A. Sulka Co., Ltd., 953 F. Supp. 922, 925 (N.D. Ill. 1997).
In this case, we find as a matter of law that Cho's mild cerebral palsy is not an ADA disability. See, e.g., EEOC Technical Assistance Manual at II-4 ("an individual with very mild cerebral palsy that only slightly interferes with his ability to speak and has no significant impact on other major life activities is not an individual with a disability" under the ADA); EEOC Compliance Manual sec. 902.4(c)(1) (cerebral palsy that only "slightly interferes" with an individual's ability to read and to speak does not constitute a disability).
Cho's cerebral palsy does not substantially limit any of his major life activities. Although his cerebral palsy causes him to walk with a slight limp and to take slightly longer to perform activities that require fine muscular coordination with his fingers and hands, neither of these limitations are "substantial." See Kelly v. Drexel University, 94 F.3d 102, 106 (3d Cir. 1996) (plaintiff who walked with a limp, walked slowly, and could not walk for more than one mile was not substantially limited); Grover v. National Engineering Co., 1995 WL 443944, *10 (N.D. Ill. 1995) (plaintiff who walked with a pronounced limp and experienced significant pain while walking, and walked more slowly as a result of his condition was not substantially limited). Cho admits that his cerebral palsy does not substantially limit his ability to work, walk, care for himself, speak, see, hear, learn or breathe. Although Cho claims that his cerebral palsy affects his muscular coordination and that his right side is weaker than his left, this merely causes him to take a little longer to do certain things than someone without cerebral palsy. This does not amount to a "substantial limitation."
Further, Cho admits that his cerebral palsy had no effect on his ability to work for Walgreens. Cho claims that he absolutely could do all of the jobs that he was asked to perform at Walgreens. Cho also admits that his cerebral palsy had no effect on his ability to work at either of the jobs he held prior to working at Walgreens. In contrast, cases in which courts have held that cerebral palsy does constitute a disability under the ADA involved far more substantial limitations than Cho suffers.See Koblosh v. Adelsick, 1996 WL 675791, *4 (N.D. Ill. 1996) (plaintiff could not walk without the assistance of crutches or braces); Coleman v. Zatechka, 824 F. Supp. 1360, 1366 (D. Neb. 1993) (plaintiff was confined to a wheelchair and required the assistance of a personal attendant for dressing and showering). Therefore, we find that Cho's cerebral palsy does not constitute an ADA disability as a matter of law.
B. Cho Does Not Have A "Record Of" A Substantially Limiting Impairment
An individual has a "record of" a disability if he "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. sec. 1630.2(k). Thus, Cho must not only show that he has a history of cerebral palsy, but also that he has a history of being substantially limited in one or more of his major life activities because of his cerebral palsy. See Gray v. Ameritech, 937 F. Supp. 762, 769 (N.D. Ill. 1996).
In this case, medical records which indicate that Cho received treatment for cerebral palsy when he was a child and then again in connection with this litigation, do not equate to having a record of a disability as defined under the ADA. Cho fails to submit any medical records which show that his cerebral palsy substantially limits any of his major life activities. Thus, Cho fails to establish that he has a "record of" a disability.
C. Cho Was Not Regarded As Having A Disability
Cho also cannot establish that Walgreens regarded him as being substantially limited in any of his major life activities because of his cerebral palsy. Harrington v. Rice Lake Weighing Systems, Inc., 122 F.3d 456, 459 (1996). Cho offers no evidence to show that anyone from Walgreens regarded him as being substantially limited in any major life activity or that anyone regarded him as being substantially limited in his ability to be a Walgreens assistant manager. Moreover, with respect to the major life activity of working, "an employer does not necessarily regard an employee as handicapped simply by finding the employee to be incapable of satisfying the singular demands of a particular job." Baulos v. Roadway Express. Inc., 139 F.3d 1147, 1154 (7th Cir. 1998). Rather, Cho must show that he was regarded by Walgreens as being substantially limited in his ability to perform either a class of jobs or a broad range of jobs in various classes. Id. at 1151. As the undisputed facts demonstrate, Cho cannot make this showing.
It is undisputed that Cho's cerebral palsy did not preclude him from doing anything he was asked to do as a Walgreens assistant manager. In light of these undisputed facts, Cho's attempt to state a perceived disability claim fails.
II. Cho's Harassment Claims Fail As A Matter Of Law
A. Harassment Claims Were Not Included In the EEOC Charge
In his November 22, 1996 EEOC charge, Cho alleges that he was denied a reasonable accommodation for his disability. In his April 18, 1997 EEOC charge, he alleges that he was demoted to the AMN job classification in retaliation for his November 22, 1996 charge. In his complaint in this court, however, Cho alleges that he was subjected to "harassment and abuse" because of his disability. Walgreens is entitled to summary judgment on Cho's claims of harassment and abuse because such allegations were not included in his EEOC charges. In fact, Cho admits that he did not file an EEOC charge alleging that he was harassed or subjected to a hostile work environment because of his disability.
Filing an EEOC charge of discrimination is a prerequisite to bringing a claim. Dunn v. WGCI AM/FM Radio, 1998 WL 182516 *5 (N.D. Ill. 1998). Thus, "a plaintiff cannot file claims in a court of law that were not included in (his) charge filed with the EEOC." Id. Claims asserted in a federal lawsuit must be "like or reasonably related to the allegations of the (EEOC) charge and growing out of such allegations. Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Claims are not considered "alike or reasonably related unless there is a factual relationship between them. This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals." Id. at 501.
In this case, Cho's EEOC charges merely claim that he was denied a reasonable accommodation and that he was demoted to the AMN job classification in retaliation for his prior charge. Neither of Cho's charges contain any "facts or allegations . . . that describe harassing or intimidating conduct taken by (Walgreens) against the plaintiff." See Meeker, 1998 WL 341621 at *3. Nor do plaintiff's charges "provide any examples of hostile conduct, actions or words directed toward the plaintiff by (Walgreens) because of his disability." Id. Because there are no allegations in the charges relating to Cho's work environment, there simply is no reasonable relationship between Cho's EEOC charges and his claim that he suffered harassment or a hostile work environment. Id. Accordingly, summary judgment must be granted in favor of Walgreens on Cho's disability harassment claim.
Cho's attempts to sustain his harassment claim are unavailing. First, he argues that the harassment about which he complains began after, and was precipitated by, the filing of his EEOC charges. However, the evidence demonstrates that this is untrue. Cho admits that his harassment claim is based on acts and events that occurred beginning in February 1996, nine months before Cho filed his initial EEOC charge on November 22, 1996. Cho also admits that his harassment claim is based, at least in part, on the written performance memorandums that he received from Murrie Boston in March 1996, eight months before he filed his first EEOC charge. Thus, Cho's unsupported assertion that his harassment claim is based upon write-ups that he received after the filing of his EEOC charges should be disregarded.
Second, Cho argues that despite his failure to use the term "harassment" in his EEOC filing, there is a reasonable factual relationship between his EEOC charges and his allegations of harassment in this lawsuit. He argues that a factual relationship exists because the same performance memoranda which Boston allegedly used to harass him were also used to provide Walgreens with a pretext for terminating him. However, the undisputed facts demonstrate that the performance memoranda which Boston gave Cho in March 1996 were not the basis for Cho's termination, which took place over one year later, when Cho was working at a different Walgreens store, for a different store manager.
B. No Evidence of a Hostile Work Environment
Even if Cho had included a harassment claim in his EEOC charges, there is no evidence that he was subjected to conduct that created an intimidating, hostile or offensive work environment. Such a claim is established, first, with evidence that "the work-place is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Zimmerman v. Cook County Sheriff's Dept., 1996 WL 22977, *4 (N.D. Ill. 1996). Next, there must be evidence that the acts complained of were taken because of this alleged disability.See Rothman v. Emory University, 123 F.3d 446, 452 (7th Cir. 1997); Magiera v. Ford Motor Company, 1998 WL 704061, *7 (N.D. Ill. 1998).
Cho's harassment claim is based on the following facts: From February through June 1996, Murrie Boston allegedly gave him incorrect write-ups, hid money from him, and asked him to resign; from June through December 1996, Gary Olsen allegedly wrote up Cho for minuscule things, told him that he would not be getting written up if he was to improve his performance and get more work done, and used the word "termination" in the first writeup he gave to Cho; Gary Hannon allegedly instructed Boston to keep tabs on Cho when he first transferred to the Lake Zurich store in February 1996; and in 1996, Christine Whelan allegedly coerced Olsen to write up Cho and to hold Cho to a higher standard than other employees.
In this case, there is no competent evidence to show that any of these alleged actions were motivated by Cho's disability, rather than by his supervisor's judgment about his performance. Cho does not contend that anyone ridiculed or insulted him because of his cerebral palsy, that anyone imitated his work or speech, or that anyone threatened him or verbally abused him because of his cerebral palsy. In fact, Cho admits that he never heard anyone make any disparaging comments or remarks about his cerebral palsy.
Cho offers no evidence that he received the allegedly undeserved performance write-ups because of his alleged disability. See Rothman v. Emory University, 123 F.3d 446, 452 (7th Cir. 1997). Cho offers no proof that his disability, as opposed to legitimate performance-based criteria, was the reason he received these write-ups. Conversely, Walgreens has established, through undisputed sworn testimony of the individuals whom Cho claims harassed him, that Cho was given these write-ups for performance related reasons, in an effort to improve Cho's performance. These individuals testified, and Cho does not dispute, that they treated Cho no differently than they treated any other assistant manager. Thus, Cho's harassment claim rests solely upon his speculation that he received disciplinary write-ups which he did not deserve. Even if this were true, this simply does not amount to a hostile work environment and Cho has failed to prove that he was harassed, or treated in any way differently, because of his disability.
III. Cho Cannot Establish a Claim for Retaliation
Cho claims that he was demoted to the AMN job classification in February 1997 and that he was subsequently terminated in May 1997 in retaliation for filing charges of discrimination with the EEOC. To establish a prima facie case of retaliation, Cho must establish a causal link between his EEOC charges of discrimination and his demotion and subsequent termination. See Davidson, 133 F.3d at 511. If Cho can sustain this burden, Walgreens must offer a "legitimate nondiscriminatory reason" for his demotion and termination, and once Walgreens does so, Cho must show that Walgreens' "proffered reasons are pretextual and that its actual reason was discriminatory." Dey v. Colt Construction and Development Co., 28 F.3d 1446, 1457 (7th Cir. 1994).
Cho offers no evidence to show that he was demoted to the AMN job classification, or that he was subsequently discharged, in retaliation for filing charges of discrimination with the EEOC. Instead, Cho simply restates that the demotion he received was based upon retaliation for the filing of an EEOC complaint and that his working off the clock was a pretext to the real reason for his discharge which was the filing of the EEOC complaint. Mere restatement of allegations, without any proof of a causal link or pretext, is insufficient. MidWest Imports, Ltd., 71 F.3d at 1317.
A. Termination Claim
Cho's claim that he was fired in retaliation for filing his EEOC charges of discrimination is unsupported speculation. The undisputed material facts demonstrate that Whelan and John Kenesey, a Senior Attorney in Walgreens' Employee Relations Department, made the decision to fire Cho for violating Walgreens' policy against working off the clock. In their judgment, Hillyer's investigation of Cho's time records and the alarm code reports confirmed that Cho had been working off the clock on numerous occasions. Because Cho had already been warned several times not to work off the clock, they decided that he should be fired.
Cho cannot establish that the reason for his discharge was pretext. It is undisputed that Cho was familiar with Walgreens' policy against working off the clock. It is also undisputed that he worked off the clock and had been warned not to do so on numerous occasions throughout his employment. Cho has no evidence that Walgreens' explanation of the discharge is mere pretext and that the true reason for his discharge was retaliation for his EEOC charges.
Cho's claim that he was fired in retaliation for filing his EEOC charges of discrimination is based on nothing but his personal speculation. Although Cho was fired after he filed his EEOC charges, the undisputed material facts show that there was no causal connection between the two. Rather, Cho was fired for violating Walgreens' policy against working off the clock. Therefore, Walgreens is entitled to summary judgment on Cho's claim of retaliation regarding his discharge.
B. Demotion Claim
Cho has also failed to prove that there was any causal nexus between his demotion and the filing of his EEOC charges. The timing of his demotion does not establish a prima facie case. Cho's demotion took place approximately three months after he filed his November 22, 1997 charge. Thus, given this time lag, the demotion does not by itself suggest a causal relationship between these events. Davidson, 133 F.3d at 511 (5 months between an employee's EEOC charge and her discharge was too long a period of time to suggest a causal link between them); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (4 months does not sufficiently raise the inference that the plaintiff's filing was the reason for the adverse action). Cho must therefore offer proof beyond the timing of his demotion to establish the necessary causal nexus to support his demotion claim. Davidson, 133 F.3d at 511. Cho, however, has no other proof, and thus cannot establish his prima facie case.
Moreover, even if timing were enough, Cho cannot prove that Walgreens' legitimate, non-discriminatory reason for demoting him was a mere pretext for discrimination. Cho does not offer any facts to show that Walgreens' proffered reason for his demotion was a pretext for discrimination. The undisputed evidence shows that Scott Vickers and Christine Whelan made the decision to demote Cho to the AMN job classification. In their judgment, because of his performance problems, Cho was not qualified for the MGT classification, and his skills were more suited to the AMN classification.
To establish that this reason is pretext, Cho must prove that it is "a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). The only proof which Cho can offer to establish pretext is his own belief that he was doing a good job and his feeling that Vickers and Whelan must have felt that he was doing a good job. These self-serving statements are insufficient to create a genuine issue of fact as to Vickers' and Whelan's assessment of Cho's performance. See Gustovich v. AT T, 972 F.2d 845, 848 (7th Cir. 1992) (an employee's self-serving statements about his ability are insufficient to contradict an employer's negative assessment of that ability). Therefore, Cho's retaliation claim of demotion fails as a matter of law.
CONCLUSION
For the foregoing reasons, the motion of defendant Walgreen Company for summary judgment is granted. Judgment is hereby entered in favor of the defendant Walgreen Company. This case is hereby terminated.