Opinion
Case No. 98 C 7518.
September 14, 2000.
Frank M. Bonifacic, Madigan Getzendanner, Chicago, IL., John M. Sheahin, Attorney at Law, Wheaton, IL., Attorney[s] for Plaintiff[s].
Kim Ann Leffert, Maritoni D. Kane, Mayer, Brown Platt, Chicago, IL., Attorney[s] for Defendant[s].
MEMORANDUM OPINION AND ORDER
Plaintiff, Leon Ramsey ("Ramsey"), brings this action against defendant, United Airlines, Inc., ("United"), alleging that United failed to accommodate his disability in violation of the Americans with Disabilities Act (the "ADA"), retaliated against him for filing charges of discrimination, intentionally and negligently inflicted emotion distress on him, and breached a contract created by United's Reasonable Accommodation Policy. Before the Court is United's Motion for Summary Judgment. For the following reasons, the Court grants United's motion.
BACKGROUND
The following facts are taken from the parties Local Rule 56.1 submissions. The facts are undisputed, unless specifically stated otherwise. Ramsey currently works for United at O'Hare International Airport in the Cargo Support Department. Ramsey's claims arise from his employment with United as a Ramp Serviceman from 1995 through November 1998.
In April 1978, Ramsey became a Ramp Serviceman at O'Hare International Airport. (Def. Stmt., ¶ 4) Ramp Servicemen are unionized, and they can freely exercise their based bidding rights to transfer between different positions and shifts on the Ramp based on their seniority. (Def. Stmt. ¶¶ 7, 15) The Ramp Serviceman classification includes a number of jobs at three different sites: the Terminal, the Post Office, and the Air Freight building. (Def. Stmt. ¶ 5).
Ramp Servicemen who work in the "Terminal" load and unload passenger baggage, freight, and mail from the aircrafts, and employees assigned to the Terminal can bid on work that is primarily inside or outside based on their seniority. (Def. Stmt. ¶ 8; Pltff. Resp. ¶ 8) Ramp Servicemen assigned to the "Post Office" unload and sort mail, transport and load mail bags on the planes, and transport bags of the mail back to the post office from planes. Ramp Servicemen assigned to the Post Office can also bid for inside or outside work. (Def. Stmt. ¶ 10) The facility is heated but not air conditioned, and both heated and unheated vehicles are used to transport mail between the Post Office and the planes. (Def. Stmt. ¶ 11).
The "Air Freight" building is used to service United's freight customers, and employees working in the Air Freight building transport freight containers to and from planes, load outgoing freight containers, load incoming freight containers, etc. (Def. Stmt. ¶¶ 12, 14) The Air Freight building is heated, but because the doors open and close frequently to allow vehicles to enter and exit, the temperature can vary depending on the outside temperature. A small section of the building contains heated and air-conditioned office space. (Def. Stmt. ¶ ¶ 12-14).
On August 10, 1990, Ramsey was involved in an accident while working in the Air Freight facility where he suffered serious injuries, and he spent almost four years on leave recovering from his injuries. (Def. Stmt. ¶¶ 17, 18) In March 1994, Ramsey returned to his former position as a Ramp Serviceman assigned to the Terminal at O'Hare. (Def. Stmt. ¶¶ 19, 20).
In June 1994, Ramsey provided United's medical department with a note from Dr. Charles Hillenbrand, his personal psychiatrist, stating that Ramsey had suffered heat exhaustion and that his medications predisposed him to heat disorders. Dr. Hillenbrand requested that Ramsey not work in temperatures exceeding 85 degrees Fahrenheit. (Def. Stmt. ¶ 21) In September 1994, Dr. Hillenbrand request that United give Ramsey two weeks off of work due to pain resulting from his 1990 accident, which United granted. (Def. Stmt. ¶ 22).
On November 28, 1994, Ramsey complained that the cold weather caused pain to his head and hip area, and United's medical department recommended that he be given indoor work only pending review of a report from the hospital where Ramsey had been treated. Ramsey's supervisor at the Terminal gave him indoor work assignments. (Def. Stmt. ¶ 23; Pltff. Resp. ¶ 23).
In January 1995, Dr. Hillenbrand requested that Ramsey take about ten days off of work because changes in the weather were causing him pain and suffering. Based on that request, United granted Ramsey time off of work. (Def. Stmt. ¶ 24) In April 1995, Dr. Hillenbrand requested a two-week medical leave for Ramsey based on unspecified "medical problems." (Def. Stmt. ¶ 25).
Ramsey testified that in August or September of 1995, when he was back at work, he was being sent to United's medical department two or three times a week by his supervisor, Bill Miller. Dr. Andrew McGuffin, a doctor in United's medical department, told Ramsey to go back to work each time. (Def. Stmt. ¶ 107) Ramsey also testified that another supervisor followed him around watching him. Ramsey testified that he transferred out of the bag room to get away from Bill Miller.
On October 30, 1995, Dr. Hillenbrand wrote a letter to Dr. McGuffin requesting that Ramsey be moved off of the Ramp area because it was stressful for him to be working in the same place where he had the accident in 1990. (Def. Stmt., ¶ 27; Ramsey, DX 4) Ramsey claims, through his own affidavit and an affidavit from Dr. Hillenbrand, that his doctor tried to get him a transfer from the Ramp area to a temperature controlled environment but that Ramsey did not have enough seniority to bid and get the jobs that were in a temperature controlled environment. (Ramsey Aff. ¶ 5, 14; Hillenbrand Aff. ¶ 5).
Ramsey continued to work in the Air Freight and Post Office areas from 1996 through October 1998. United cites testimony that Ramsey preferred to work in the Post Office area because it was quieter and less stressful than the Terminal area or Air Freight. (Def. Stmt., ¶ 29) Ramsey testified that he preferred either Air Freight or the Post Office versus the Terminal because there were few employees, it was quieter, less stressful and there was less exposure to temperature extremes. (Ramsey Aff. ¶ 13).
Ramsey often consulted with Chuck Gburek, a United Ramp supervisor, regarding workplace matters. Ramsey testified that when he approached Gburek regarding transfers to other areas in the Ramp Serviceman classification: "I'd go talk to [Gburek]. The next thing I know, the next day I come in: Okay, go down there. There was no problem." (Ramsey Dep. at 29) Ramsey later stated that these transfers were only to assignments for which he had enough seniority to obtain through the normal bidding process. (Ramsey Aff. ¶ 10) United claims that Gburek regularly worked with Ramsey to find positions where Ramsey was comfortable with the temperature. (Def. Stmt. ¶ 31) Ramsey contends that there were only two positions that were in temperature controlled environments and that he did not have the seniority to obtain those positions. (Pltff. Resp. To Def. Stmt. ¶ 31) Ramsey also contends, in seeming contradiction, that there were not any positions in the Ramp Serviceman classification that were temperature controlled. (Pltff. Stmt. ¶ 83).
On February 20, 1996, Dr. Hillenbrand wrote another letter to United requesting that Ramsey be moved off of the Ramp area due to problems tolerating heat and cold and stating that Ramsey was experiencing "Raynaud's type changes" to his hands and feet. (Def. Stmt. ¶ 32) Dr. McGuffin testified that he asked Ramsey whether he wished to have a permanent restriction for indoor work, and Ramsey stated that he did not. (Def. Stmt. ¶ 32) Ramsey contends that he never refused a permanent work restriction for "indoor work only." (Ramsey Aff. ¶ 16).
In June 1996, Ramsey went on leave because he was unable to work due to chronic pain, major depression and fibromyalgia all due to his 1990 accident. (Def. Stmt. ¶ 33) In January 1997, Ramsey returned to work with an indoor work only restriction due to his difficulty tolerating heat and cold. He had a note from Dr. Hillenbrand stating that Ramsey may return to work with a restriction of temperature ranges to remain at or above 65 degrees Fahrenheit. (Def. Stmt. ¶ 78) At this time Ramsey first spoke with United physician Dr. McGuffin about Raynaud's disease, and Dr. McGuffin reinstated the restriction for indoor work only. (Def. Stmt. ¶ 35) Raynaud's disease causes high sensitivity to hot and cold temperature extremes. (Pltff. Stmt. ¶ 87).
The indoor only restriction was later rescinded, though the parties dispute who requested to rescind it. Dr. McGuffin testified that Ramsey requested that he no longer have the indoor restriction (Def. Stmt. ¶ 36), though Ramsey testified at his deposition that he did not know why the indoor restriction was rescinded. (Ramsey Dep. at 53-54) Ramsey now asserts, based on an affidavit, that Dr. McGuffin, told Ramsey that he had to return to outside work. (Pltff. Stmt. ¶ 80) In May 1997, Ramsey was provided a leave of absence to recover from an accident outside the workplace. He resumed his work as a runner in the Post Office in October 1997. (Def. Stmt. ¶¶ 37, 38) Shortly after Ramsey returned to work, Dr. Hillenbrand wrote a letter suggesting that Ramsey be prohibited from working outside at temperatures below freezing or from working inside where the temperature is below 65 degrees Fahrenheit. (Def. Stmt. ¶ 39) Ramsey continued his work as a runner for the Post Office driving a tractor transporting mail bags. Mr. Gburek kept an eye on Ramsey and encouraged him to cool down or warm up as he needed. (Def. Stmt. ¶ 39).
On February 20, 1998, Ramsey gave United a note from his physician, Dr. Marvin Peiken, stating that Ramsey cannot work outside when the temperature is below 55 degrees Fahrenheit due to his severe Raynaud's disease. (Def. Stmt. ¶ 41) On February 21, 1998, Ramsey was admitted to a hospital for pain and depression, and he sought and was granted permission to use three weeks of his vacation time to recuperate. (Def. Stmt. ¶ 43).
On March 11, 1998, Ramsey specifically requested that he be allowed to continue as a runner for the Post Office even though this position did not strictly comply with his doctor's recommendation. (Def. Stmt. ¶ 44) He liked this position because he could be near a heater in the tractor he drove, though he testified that he would get an unheated tractor one out of three days. A few days later, Ramsey slipped and injured his knee, and he was out of work due to this accident until August 1998. (Def. Stmt. ¶ 45).
In August 1998, Ramsey returned to work with a note from Dr. Hillenbrand that stated he could return to work, but not on the Ramp. Based on this note, Ramsey went to United's medical department and asked for a long-term restriction to that effect. (Def. Stmt. ¶ 47) United physician, Dr. Andrew Basile, concluded that due to Ramsey's Raynaud's disease, he required a restriction to a "temperature-controlled environment." (Def. Stmt. ¶ 47).
After receipt of this new work restriction from United's medical department, Mr. Gburek determined that there were no positions within the Ramp Serviceman classification that meet the "temperature controlled environment" restriction. (Def. Stmt. ¶ 49; Pltff. Stmt. ¶ 81) Gburek then contacted United's People Services Department to initiate the reasonable accommodation process for Ramsey. (Def. Stmt. ¶ 50) Gburek assisted Ramsey in identifying, applying, and arranging interviews for competitive transfer to several new positions. (Def. Stmt. ¶¶ 50, 51).
Prior to this time, the only position at United outside of the Ramp Serviceman classification that Ramsey sought to transfer was the Stores position. (Def. Stmt. ¶ 58) The Stores warehouse is heated but not air conditioned, and it has large doors that open frequently to allow trucks and other vehicles that pick up and deliver parts to the planes to drive in and out. (Gburek Dep. at 62; McGuffin Dep. at 84) He applied for that position in 1989, 1990 and in every year after since he returned to work in 1994. (Def. Stmt. ¶ 58) Stores positions are awarded on a competitive basis, where the department may choose candidates not based on seniority but based on subjective factors. (Def. Stmt. ¶ 59) Ramsey has never been awarded a position in Stores, and he testified that he does not know why he was not given the position. (Def. Stmt. ¶ 59).
The parties dispute the temperature conditions of the Stores position. Ramsey contends that it involves less exposure to temperature extremes than the Ramp Serviceman position. (Ramsey Aff. ¶ 16) United disagrees, stating that while the facility is heated it is subject to temperature fluctuations because there are large doors that open and close to let trucks drive in and out. (Gburek Dep. at 62; McGuffin Dep. at 84).
On August 18, 1998, Gburek placed Ramsey on a special transition position and filled out Reasonable Accommodation forms for Ramsey. Ramsey worked in this temporary assignment sorting mail in the Air Freight building from August 16 through October 25, 1998. On October 25, 1998, Ramsey started his current position in an air conditioned and heated building as a Cargo Support Representative with Cargo Sales and Service.
Ramsey filed discrimination charges against United on March 27, 1995, May 5, 1995, and August 16, 1996. Ramsey first learned of United's Reasonable Accommodation Policy in 1996 when he was talking with Laura Leavitt of the EEOC. (Pltff. Stmt. ¶ 105) Ms. Leavitt had a copy of United's policy, and she summarized it for Ramsey. Ramsey first spoke with a person in United's Human Resources Department about United' s Reasonable Accommodation Policy in March 1998. (Def. Stmt. ¶ 46).
Ramsey accuses United of violating the ADA by failing to accommodate his disability, consisting of Raynaud's disease, chronic intense pain related to osteoarthritis, multiple fractures, and fybromyalgia, and by retaliating against him for filing charges with the EEOC. He also complains that United's actions in failing to remove him from the Ramp constituted intentional infliction of emotional distress and negligent infliction of emotional distress. He further complains that United breached a contract that it had with him regarding United's Reasonable Accommodation Policy.
DISCUSSION
Summary judgment is proper when "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the non-moving party and draws all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
"The standard governing summary judgment is clear: `[I]f no rational jury could, on the evidence presented in the summary judgment proceeding, bring in a verdict for the party opposing summary judgment . . . then summary judgment must be granted.'" Oates v. Discovery Zone, 116 F.3d 1161, 1175 (7th Cir. 1997) (citing Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 660 (7th Cir. 1991)). The plaintiff has to produce more than a scintilla of evidence in support of its position.See Anderson, 477 U.S. at 252.
Ramsey's ADA Claims
In Count I, Ramsey alleges that United did not reasonably accommodate his disability and retaliated against him for filing discrimination charges. The parties agree that to state a claim for discrimination in violation of Title I of the ADA, Ramsey must establish that: (1) he is disabled; (2) he is otherwise qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) that the employer took an adverse job action against him because of his disability or failed to make a reasonable accommodation. Stephens v. Illinois Dept. of Transportation, 210 F.3d 732, 736 (7th Cir. 2000).
United has moved for summary judgment on the third element only, arguing that (1) it has not taken an adverse job action against Ramsey and (2) it has made "every effort" to accommodate Ramsey. (See United's Memorandum at 3).
To demonstrate that an adverse employment action occurred, Ramsey must show that he suffered a "materially adverse change in the terms and conditions of employment." Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). While the Seventh Circuit has broadly defined adverse employment action to cover actions beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). Impermissible consideration of the employee's disability must be a "significant reason" for the employer's adverse action; it must make "such a difference in the outcome of events that it can fairly be characterized as the catalyst which prompted the employer to take the adverse action." Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th Cir. 1999).
In the instant case, the adverse employment action that Ramsey identifies is United's failure to transfer him to a temperature controlled environment sooner, which caused him severe pain and resulted in his need to take a substantial time off of work without pay. United argues that it did not demote, discipline, terminate, or take any other materially adverse action that affected the terms and conditions of Ramsey's employment.
The Court finds that Ramsey failed to present evidence that would allow a reasonable jury to find that United made an adverse employment decision in response to Ramsey's disability. Ramsey fails to point to an adverse action that United took that was motivated by his disability. See Foster, 168 F.3d at 1033. He has not demonstrated that he suffered a "materially adverse change in the terms and conditions of employment."Rabinovitz, 89 F.3d at 488.
Next, Ramsey argues that United's failure to transfer him from the Ramp to an office until August 1998 was unreasonable and constitutes failure to reasonably accommodate his disability. Ramsey argues that while United did take some actions, the only reasonable accommodation would have been to transfer him off of the Ramp to an office job. (Ramsey's Memorandum at 6, 9).
United argues that summary judgment is appropriate because it reasonably accommodated Ramsey as it became aware of his disability. United contends that Ramsey's problems developed over a period of several years, and that it took a long time for it to fully understand the nature and extent of Ramsey's disability. United argues that it accommodated Ramsey by doing the following: providing Ramsey with a leave of absence when Ramsey's physician requested it, continually employing Ramsey despite his extensive leaves of absence, permitting Ramsey to change positions within his work classification so that he could find one that was comfortable for him, providing indoor work at the request of Ramsey's physician, and assisting Ramsey in finding a position outside of his work classification when his condition made it impossible to continue to work within his prior classification. (United's Memorandum at 4-9).
Under the ADA, the employee has the initial duty to inform the employer of a disability before liability is triggered for failure to provide accommodations. Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1012 (7th Cir. 1997). After an employee has made a request for a reasonable accommodation, both parties are responsible for determining what accommodation is required. Id. An employer cannot reasonably accommodate an employee's disability unless the employer is aware of the disability. Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134-35 (7th Cir. 1996).
To determine whether Ramsey has presented evidence that would allow a reasonable jury to conclude that United did not reasonably accommodate Ramsey, it is necessary briefly to recite the relevant facts. On November 28, 1994, Ramsey complained of pain related to the cold weather, and United medical personnel restricted him to indoor work only. In January 1995, Dr. Hillenbrand requested that United give Ramsey ten days off of work because he was experiencing pain due to the change in the weather.
On October 30, 1995, Dr. Hillenbrand wrote a letter to Dr. McGuffin requesting that Ramsey be moved off the Ramp because his current work situation was "extremely stressful for him" because it was the place of his near-fatal accident in 1990. (Ramsey DX 4) Dr. Hillenbrand made no mention in the letter, however, of temperature problems and their effect on Ramsey's health as a reason for the transfer. On February 20, 1996, Dr. Hillenbrand wrote another letter reporting for the first time to United that Ramsey was experiencing "Raynaud's type changes" in his hands and feet. In response to this letter, Dr. McGuffin asked Ramsey whether he wanted a permanent restriction for indoor work. While Ramsey states that he never refused a restriction for indoor work only, Dr. McGuffin's medical file with his contemporaneous notes and his testimony state that Ramsey did not want the restriction.
From June 1996 until January 1997 Ramsey was on medical leave due to pain, depression, and fibromyalgia. In January 1997, Dr. Hillenbrand wrote a note stating that Ramsey may return to work and requesting restrictions on working outside in temperatures below freezing or indoors at temperatures below 65 degrees. At this time, Ramsey told Dr. McGuffin about his Raynaud's disease, and after learning this, Dr. McGuffin reinstated the indoor work only restriction. The restriction was later rescinded. While Ramsey testified that he did not recall who lifted the restriction, Dr. McGuffin testified based on his notes in Ramsey's medical file that Ramsey asked that the restriction be lifted.
After an extended leave of absence from May 1997 through October 1997 due to a non-work automobile accident, Ramsey returned to work as a runner for the Post Office. On October 27, 1997, Dr. Hillenbrand wrote another note stating that Ramsey should not work outside if the temperature was below 32 degrees Fahrenheit and should not work inside if the temperature was below 65 degrees Fahrenheit. On February 20, 1998, Ramsey gave United a note from his physician, Dr. Marvin Peiken, stating that Ramsey cannot work outside when the temperature is below 55 degrees Fahrenheit due to his severe Raynaud's disease. On March 11, 1998, however, Ramsey specifically requested that he be allowed to resume his position as a runner for the Post Office even though this position did not strictly comply with his own doctor's recommendation.
In August 1998, Ramsey went to United's medical department requesting a long term restriction. United physician, Dr. Andrew Basile, determined that based on Ramsey's Raynaud's disease, Ramsey needed to have a limitation to temperature controlled environment. An indoor-work-only restriction was no longer sufficient.
The evidence demonstrates that United' s medical department was in continuous contact with Ramsey and his physicians. Ramsey may not have gotten the accommodation that both he and his doctor preferred for him, which was removal from the Ramp Serviceman classification, but the ADA does not require that employers transfer an employee to another department if the employee is still able to perform his job with reasonable accommodation. Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000). An employer is required to provide a qualified individual with a reasonable accommodation, not the accommodation he requests or prefers. Id.
Ramsey has failed to present sufficient evidence to create an issue of fact. Aside from removal from the Ramp, what Dr. Hillenbrand was really requesting in all of his letters up until August 1998 was a working environment where Ramsey would not be exposed to temperature extremes. In response, United instituted indoor-only restrictions for Ramsey. This was a reasonable response to Ramsey and his physician's requests, and an accommodation that would allow him to continue to work in his work classification. See Feliberty, M.D. v. Kemper Corp., 98 F.3d 274, 280 (7th Cir. 1996) ("Determining whether an accommodation is reasonable depends, to a significant extent, upon determining whether the employer has acceded to the disabled employee's request."). The evidence also shows that Mr. Gburek worked with Ramsey to find positions on the Ramp that were comfortable for him, and that Ramsey had a good working relationship with Mr. Gburek. (Ramsey Dep. at 48-49; Gburek Dep. at 48-49) Mr. Gburek testified that on particularly hot or cold days and Ramsey was bothered by the temperature, he would assign Ramsey to more comfortable positions, even if the required paper work had not yet been processed. (Gburek Dep. at 59). Regarding Dr. Hillenbrand's request for a transfer off of the Ramp, United was not required to transfer Ramsey until he could no longer perform his position with reasonable accommodation. See Rehling, 207 F.3d at 1014. When United determined that there were not positions suitable for Ramsey on the Ramp, he was transferred to another position.
In addition, with twenty years of seniority, Ramsey was able to transfer to different positions in the Ramp Serviceman classification as he desired. Ramsey testified that "[o]n the airfreight and the post office, I was fine; I had enough seniority to go anywhere I want" (Ramsey Dep. at 28-29). While Ramsey now asserts that he did not have enough seniority to transfer to the Ramp positions that were in a temperature controlled environment, (Ramsey Aff. ¶¶ 5, 14), Ramsey cannot use self-serving affidavit statements to contradict his sworn deposition testimony. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999) ("a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition"). In further contradiction, Ramsey asserts that there are no positions in the Ramp Serviceman classification that are temperature controlled. (Pltff. Stmt. ¶ 83).
What is clear is that when United physicians determined that Ramsey required a "temperature controlled environment" as opposed to temperature restrictions, Mr. Gburek determined that there was nothing in the Ramp Serviceman classification that met that new specification. (Def. Stmt. ¶ 49) With Mr. Gburek's assistance, Ramsey first moved to a temporary position and then to a permanent position in another job classification where he works in a temperature controlled environment. (Def. Stmt. ¶ 56).
The Court further notes that the evidence shows that Ramsey requested a job that did not strictly comply with his own doctor's restriction, (Def. Stmt. ¶ 44); declined a permanent restriction for indoor work only (McGuffin Dep. at 50-52; DX 2); and asked that his doctor's restrictions be rescinded. (McGuffin Dep. at 56; Ramsey DX 4; McGuffin DX 2) Ramsey has not presented any evidence to contradict this testimony, aside from a self-serving affidavit that lacks support in the record. While Rule 56(e) permits Ramsey to submit affidavits to supplement the record, "[c]ourts generally ignore attempts to patch-up potentially damaging deposition testimony with a supplemental affidavit." Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999). Therefore, summary judgment is appropriate because Ramsey has not presented evidence that would allow a reasonable jury to find that United did not reasonably accommodate his disability.
Ramsey's Retaliation Claim
The parties agree that to state a prima facie claim for retaliation in violation of Title I of the ADA, Ramsey must present evidence that: (1) he engaged in protected expression; (2) he suffered an adverse employment action; and (3) a causal link existed between the two. Cable v. Ivy Tech State College, 200 F.3d 467, 478 (7th Cir. 1999). The parties also agree that Ramsey engaged in protected expression.
Ramsey argues three acts of retaliation. First, he argues that a few months after he filed charges with the EEOC his supervisor, Mr. Miller, started following him around and constantly sending him to the medical department. Ramsey argues that he bid to transfer away from a bag area position in the Terminal to a Post Office position to get away from Mr. Miller. Ramsey argues that this transfer constituted a material adverse employment action because the bag room was 70% inside and 30% outside while the Post Office was 70% outside and 30% inside. Ramsey argues that the suspicious timing of his supervisor's actions constitutes circumstantial evidence of intentional discrimination. (Ramsey's Memorandum at 10).
Second, Ramsey argues that his failure to obtain a position in Stores was an adverse employment action in retaliation for his charges because he was "deemed competitive" and he never "heard a thing" about why he was not hired for a position in Stores. (Ramsey's Memorandum at 10) Third, Ramsey alleges that United's failure to transfer him out of the Ramp Serviceman classification "when it [was] obvious to a lay person that he should have been transferred" earlier amounts to a "reasonable inference that there was concerted activity by the Defendant's supervisors to retaliate" against him. Id.
United argues that Ramsey cannot demonstrate that he suffered a material adverse employment action and that Ramsey's allegations amount to mere petty workplace annoyances. United further claims that Ramsey cannot demonstrate a causal connection between these incidents and his filing of the EEOC charges because Ramsey admitted that he has no evidence to show that any of the involved individuals knew that he filed EEOC charges. (United's Reply at 11-12).
First, the Court finds that no reasonable jury could find that Ramsey suffered a materially adverse employment action. An adverse action occurs when "an employee is fired or demoted, suffers a decrease in benefits or pay, or is given a significantly lesser job." Hill v. American General Fin., Inc., 218 F.3d 639 (7th Cir. 2000). Minor and trivial actions that make an employee unhappy do not qualify as retaliation under the ADA. See Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999); Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996).
It is undisputed that at the time that Ramsey complained that Mr. Miller was harassing him, Ramsey "voluntarily bid to return to the Post Office and Air Freight areas." (Def. Stmt. ¶ 26) Aside from an unsupported statement in his affidavit, (See Aff. ¶ 12), Ramsey has not pointed to any evidence in the record that the temperature conditions in the Terminal were superior to those in the Post Office and Air Freight. He testified in his deposition that he preferred Air Freight and the Post Office to the Terminal, (See Ramsey Dep. at 21-22), and he stated in his affidavit that he "preferred to be assigned to the Post Office or Air Freight as opposed to the Terminal because there [was] . . . less exposure to temperature extremes than working in the Terminal." (Ramsey Aff. ¶ 13) While Ramsey also states in that same affidavit that working in the Terminal required less outside work than Air Freight and the Post Office (Ramsey Aff. ¶ 12), Ramsey cannot create a disputed issue of material fact by contradicting his own testimony. See Piscione, 171 F.3d at 532.
Second, Ramsey has not presented evidence that would allow a reasonable jury to find a causal link between his alleged adverse employment action and the charges that he filed. Ramsey has presented no evidence that Mr. Miller knew about his EEOC charges. Instead, Ramsey testified that he had no reason to believe that Mr. Miller knew that he had filed charges. (Ramsey Dep. at 120) Ramsey's claim that his failure to obtain a Stores position was retaliation also fails because he cannot establish a causal link. Ramsey admitted that he "literally didn't tell anybody" that he filed EEOC charges. He testified that he has "no idea" whether any of the decision makers in Stores knew that he had filed EEOC charges, and he failed to point to any support in the record that anyone at Stores knew about the charges. (Ramsey Dep. at 127-28) Because Ramsey failed to produce any evidence from which a jury could reasonably infer knowledge on the part of the Stores decision makers, Ramsey cannot state a prima facie case of retaliation. See Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000).
While this causal link may be established through evidence that the adverse decision took place on the "heels of protected activity," see Dey v. Colt Construction and Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994), the timing here fails to support a causal link between his charges and his failure to obtain a Stores position. Ramsey filed three EEOC charges: (1) February 1995, which was amended in March 1995; (2) May 1995; and (3) August 1996. Ramsey was deemed "competitive" for the Stores position for the period between March 1997 and March 1998. The record does not support the fact that Ramsey's failure to obtain a Stores position took place "on the heels" of protected activity. Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 398-99 (7th Cir. 1999) (finding that a four-month lapse between the protected expression and employee's termination did not establish causal link); Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999) (finding no causal link).
The same holds true for the other alleged retaliatory conduct. Ramsey claims that United's failure to transfer him out of the Ramp Serviceman classification when "it [was] obvious to a layperson that he should have been transferred in 1996 adds up to a reasonable inference that there was concerted activity by the Defendant's supervisors to retaliate" against him for engaging in protected conduct. Aside from this bare, conclusory argument which fails to identify any facts supporting an inference of concerted activity to retaliate against Ramsey, Ramsey has failed to set forth facts stating a prima facie case of retaliation. Therefore, the Court grants United's motion for summary judgment on the retaliation claim.
Ramsey's Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress Claims
Ramsey's claims for intentional infliction of emotional distress and negligent infliction of emotional distress are preempted by the Illinois Workers' Compensation Act (the "IWCA") The IWCA provides the exclusive remedy for claims against an employer for accidental injuries in the work place. 820 ILCS 305/1 et seq. An employee/plaintiff's action against an employer will not be preempted if the employee proves (1) that the injury was not accidental; (2) that the injury did not arise from his or her employment; (3) that the injury was not received during the course of employment; or (4) that the injury was not compensable under the Act.Richardson v. County of Cook, 250 Ill. App.3d 544, 549, 621 N.E.2d 114 (1st Dist. 1993).
Ramsey argues that his claims are not preempted because his injury was not accidental. Ramsey asserts that the IWCA does not preempt his cause of action because the "actions inflicting severe emotional distress . . . were intentional or were commanded by management of the Defendant." (Ramsey's Memorandum at 13).
Illinois courts have repeatedly held that "an injury which was intentionally inflicted upon an employee by another employee is considered `accidental' for purposes of the Act if it was `unexpected and unforeseeable from the injured employee's point of view.'" Richardson, 250 Ill. App.3d at 548, 621 N.E.2d at 117. The exclusivity provisions do not apply, however, if the injuries were intentionally inflicted by the employer or by its alter ego or if the injurious actions were commanded or expressly authorized by the employer. Id.; Meerbrey v. Marshall Field and Co., 139 Ill.2d 455, 465-66, 564 N.E.2d 1222 (Ill. 1990).
Ramsey fails to point to any factual support in the record for his assertion that the actions were intentionally inflicted by United, commanded by United, or that Dr. McGuffin or any of Ramsey's other supervisors were acting as an "alter ego" of United. Jablonski v. Multack, 63 Ill. App.3d 908, 913, 390 N.E.2d 924 (1st Dist. 1978) (summary judgment was appropriate where plaintiff failed to point to any evidence that a manager who assaulted plaintiff-employee was acting as alter ego of employer). In addition, Ramsey has not presented sufficient evidence for a jury to find that the actions were commanded or expressly authorized by United. Meerbrey, 139 Ill.2d at 465 (acting within scope of authority is not the same as express authorization to commit specific acts) See also Murphy v. ITT Educational Services, Inc., 176 F.3d 934 (7th Cir. 1999) (party may not rely on claims that are completely unsubstantiated by the record to defeat summary judgment.)
In any event, summary judgment is appropriate on the merits because Ramsey has failed to set forth facts to support his claims for intentional and negligent infliction of emotional distress. The test in Illinois for intentional infliction of emotional distress and negligent infliction of emotional distress is well established. The conduct involved (1) must be extreme and outrageous; (2) the actor must either intend that its conduct inflict severe emotional distress, or know that there is at least a high probability that the conduct will cause severe emotional distress; and (3) the conduct must in fact cause severe emotional distress. Harriston v. Chicago Tribune Co., 992 F.2d 697, 702 (7th Cir. 1993). Liability for intentional infliction of emotional distress will be found only where "the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Id. at 702. The distress inflicted must be "so severe that no reasonable man could be expected to endure it." Id. at 703.
Ramsey argues that United's failure to transfer him to an office environment earlier constitutes extreme and outrageous conduct. This conduct, even if true however, fails to rise to the requisite level. See Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). Viewing the evidence in the light most favorable to Ramsey, this conduct does not rise to the level that no reasonable man could be expected to endure it.
The undisputed evidence and Ramsey's own testimony further undercut this claim. First, Ramsey only tried to transfer to one other position outside the Ramp during this time, the Stores position, and although the parties dispute whether it is a temperature controlled environment, there is no dispute that it is not a desk job in an office. Second, when Ramsey did obtain a desk job, he asked to be transferred back to the Ramp or the Post Office because he was having "an extremely hard time wearing a headset and sitting down all the time." (Ramsey Dep. at 79).
Ramsey also fails to present evidence sufficient for a reasonable jury to find that United intended to cause Ramsey emotional distress or that there was a high probability that it would. Ramsey claims that Dr. McGuffin and Ramsey's supervisors knew about the pain from his health problems and intended to cause him severe emotional distress by keeping him on the Ramp. While Ramsey cites to Dr. McGuffin and his supervisors' knowledge and access to his medical files, he fails to set forth any record support of intent aside from an inadmissible hearsay statement. Conclusory and self-serving allegations unsupported by the record fail to preclude summary judgment. Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th Cir. 1998).
Ramsey's Breach of Contract Claim
Illinois law holds that an employee handbook or other policy statement creates enforceable contract rights if the traditional requirements for contract formation are met: (1) the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made; (2) the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and (3) the employee must accept the offer by commencing or continuing to work after learning of the policy statement. Duldulao v. Saint Mary of Nazareth Hosp. Center, 115 Ill.2d 482, 490, 505 N.E.2d 314 (1987). When these three conditions are met, the employee's continued work constitutes consideration for the promises contained in the statement, and a valid contract is formed. Id.
Ramsey asserts that while he never read United's Reasonable Accommodation Policy, Ms. Leavitt of the EEOC had a copy of United's policy, and she explained it to him in 1996 after he filed his charges with the EEOC. (Pltff. Stmt. ¶ 105) Ramsey admits that he never read United's Reasonable Accommodation Policy, and he does not present any evidence that it was given to him in some form. Ramsey first discussed United's policy with a United Human Relations person in October 1998, (Ramsey Dep. at 102), which is after Ramsey believed he was reasonably accommodated.
Summary judgment is appropriate because a reasonable jury could not find that a contract had been formed. Ramsey fails to present facts demonstrating that the Reasonable Accommodation Policy was disseminated to him in a matter where he was aware of its contents and reasonably believed it to be an offer during the time at issue. Illinois law holds that a "personnel manual which is never disseminated to the employee cannot form the basis for a contract," and summary judgment is appropriate. Hanna v. Marshall Field Co., 279 Ill. App.3d 784, 665 N.E.2d 343 (1st Dist. 1996); Gaiser v. Village of Skokie, 271 Ill. App.3d 85, 91, 648 N.E.2d 205, 210 (1st Dist. 1995).
Furthermore, Ms. Leavitt worked for the EEOC, not United. Ramsey presented no evidence that Ms. Leavitt was an agent or authorized by United in any way to bind United in a contract. See Schoenberger v. Chicago Transit Authority, 84 Ill. App.3d 1132, 1136-38, 405 N.E.2d 1076 (1st Dist. 1980). Therefore, since no reasonable jury could find that a contract was formed between Ramsey and United, the Court grants United's motion for summary judgment on the breach of contract claim.
CONCLUSION
Therefore, for the foregoing reasons, United's Motion for Summary Judgment is granted.
IT IS SO ORDERED.