Opinion
No. 98 C 5838
March 20, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff's two count amended complaint alleges that defendant City of Chicago ("the City") discriminated against him based on his race in violation of Title of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and based on a perceived disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The City presently moves for summary judgment on both counts of the complaint. For the reasons articulated below, the court grants the City's motion.
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56 (c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-599. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS
Plaintiff, an African-American, joined the Chicago Police Department in 1973 and ceased employment as a police officer with the City when he retired in August 1995. Plaintiff fainted three times and experienced dizziness during the years of 1975 through 1980, but did not report any fainting or dizziness after 1980 until 1986, when he experienced fainting, dizziness and incontinence. At this point, plaintiffs doctors opined that plaintiff suffered from "vasovagal syncope" episodes of a cardio-vascular, rather than neurologic, origin and cleared plaintiff to return to work. From 1986 through 1993, plaintiff reported three episodes of dizziness. In October 1993, plaintiff experienced an episode of fainting and incontinence while off duty. After reporting this incident to the Chicago Police Department's Medical Section (the "MS"), the MS placed plaintiff on paid medical leave. The parties do not dispute that prior to 1994, plaintiff had an exemplary career with the Police Department.
In March 1994, plaintiff's doctors again cleared plaintiff to return to work with restrictions, and plaintiff was assigned to limited duty first in the Canine Unit and then in the Call-Back Unit. From May 1993 until March 2000, Commander Sullivan commanded the Chicago Police Department's Mass. Transit Unit, which included the Canine Unit. On May 5, 1994, plaintiff tendered a note from his doctor to the MS that identified plaintiffs condition as "post-traumatic seizure disorder." On the same day, the MS ordered plaintiff to ask his doctor whether his disorder had a psychological component and additionally ordered plaintiff to return to the MS on May 9, 1994. Plaintiff failed to comply with this order and, instead, contacted the MS from the Virgin Islands on May 9, 1994. On May 16, 1994, plaintiff returned to the MS without the ordered doctor's explanation. As a result, Chief Surgeon Bransfield placed plaintiff on medical leave and ordered a psychological examination. Moreover, a formal complaint was made against plaintiff for failing to appear at the MS on May 9, 1994. Although the parties dispute the cause, they both agree that plaintiff received a ten day suspension sometime after a formal complaint was made against him. Plaintiff filed an EEOC charge on June 13, 1994, alleging disability discrimination and stating that his "medical condition was not accommodated."
Also in May, 1994, plaintiff's police dog was kenneled. The parties offer completely differing versions of the manner in which plaintiffs dog was removed. Plaintiff claims that Commander Sullivan ordered a raid on plaintiff's home, that 30 officers were dispatched to his home to retrieve the dog, and that the dispatched officers refused to obey orders to attack his home. Plaintiff admits he was not home at the time of the alleged incident. Commander Sullivan denies these allegations and claims that he "simply ordered that [plaintiff] be instructed to return his dog to the kennel." (Sullivan Aff ¶ 12.) Plaintiff also claims, and Sullivan denies, that Sullivan stated at some unspecified time, "Let me tell you, Boy, somebody need to put people like you in your place. I'm going to put you in your place. I'm going to show you where you belong. I mean disrespect for you." (Pl.'s Statement of Add'l Facts ¶ 52.) Plaintiff also claims, and Sullivan denies, that Sullivan called plaintiff "Boy" on several occasions and referred to plaintiff and his Caucasian partner as a salt and pepper team, but again fails to specify when these statements were allegedly made.
Plaintiff submitted to the ordered psychological examination in June and November 1994. The examining doctor could not conclusively determine whether plaintiffs condition had a psychological basis. The examining doctor recommended that plaintiff see a licensed psychologist or psychiatrist with expertise in anxiety disorders to determine whether plaintiff's condition was psychologically based, and the City required plaintiff to follow this recommendation. Plaintiff stated at his deposition that his psychiatrist "suggested [that] being under that kind of stress and pressure would eventually kill me. And it was in my best interest, in her opinion as a psychiatrist, that I immediately retire from the police department." When asked immediately thereafter whether there were "any other reasons for [his] retirement other than what [he had] just said," plaintiff responded, "That was the reason." (Pl.'s Dep. at 98.) Plaintiff retired in August 1995.
In January 1996, the City informed plaintiff that it had paid him for unearned time. In February 1996, plaintiff filed an EEOC charge claiming race discrimination and retaliation and alleging that the City: (1) forced him to take medical leave in May 1995, (2) harassed him at his residence in May 1995, (3) issued him a ten-day suspension in June 1995, (4) withheld his paychecks from May to August 1995, (5) forced him to retire in August 1995, (6) refused to allow him to attend a City-sponsored retirement party, and (7) threatened him with legal action. Plaintiff admitted during discovery, however, that he misstated dates in his February 1996 EEOC charge and that the first four allegations actually occurred in 1994. In July 1996, a state court ordered plaintiff to repay the City $18,616.94 plus costs based on an overpayment. Plaintiff commenced this suit in September 1998.
DISCUSSION
Count I: Race Discrimination
A plaintiff may only bring a claim under Title VII if the claim is based on events that occurred within 300 days of the plaintiff filing an EEOC complaint. See 42 U.S.C. § 2000e-5; Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999) ("Under Title VII, a plaintiff has 300 days from the occurrence of an allegedly discriminatory act in which to file a timely charge . . . ."). Therefore any claims based on event that occurred more than 300 days before plaintiff filed his February 1996 EEOC complaint are time-barred unless plaintiff can show that he is entitled to application of the "continuing violation doctrine," which allows plaintiffs to sue for discriminatory acts occurring before the 300 day period when the acts are part of a policy or pattern of continuing discrimination and "it would be unreasonable to expect the plaintiff to perceive offensive conduct as Title VII harassment before the limitations period runs, or the earlier discrimination may only be recognized as actionable in light of events that occurred later, within the period of the statute of limitations." Hardin, 167 F.3d at 344. Plaintiff admits that the alleged forced medical leave, home harassment, discriminatory ten-day suspension, and withholding of his paychecks all occurred outside of the 300 day period. The only argument plaintiff makes to support the application of the continuing violation doctrine is that the alleged 1994 home harassment might not have been actionable without other events "such as the racial statements made directly to Sanders, or the exclusion from the retirement party or the withholding of his checks, or the forced medical leave." (Resp. at 8.) Plaintiff, however, failed to place a date on any of the alleged racial statements, and, with the exception of the retirement party, all other events upon which plaintiff relies took place outside the 300 days limitations period. Plaintiff, therefore, has failed to set forth sufficient facts supporting application of the continuing violation doctrine, and this court will not consider events that occurred more than 300 days before plaintiff filed his February 1996 EEOC charge.
With regard to the remaining allegations, plaintiff presents no direct evidence of discrimination and, therefore, must rely on the burden-shifting method of proving discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As recently reiterated by the Seventh Circuit in Malaca v. City of Madison, 224 F.3d 727, 729 (7th Cir. 2000), the McDonnell Douglas framework provides that a plaintiff must first establish a prima facie case of discrimination. In order to set forth a prima facie case under Title VII plaintiff must show that (1) he is a member of a protected class, (2) he was meeting his employer's legitimate performance expectations, (3) he suffered an adverse employment action, and (4) he was treated less favorably than similarly situated persons outside of his protected class. See Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000).
Direct evidence of discrimination "is evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Walker v. Glickman, ___ F.3d ___, No. 00-1978, 2001 WL 194510 (7th Cir. Feb. 27, 2001) (internal quotation marks and citation omitted). With regard to Sullivan's alleged racial slurs, plaintiff fails to state when these statements were made and, therefore, plaintiff has not shown that these comments were made "(1) around the time of, and (2) in reference to, the adverse employment action complained of." Hunt v. City of Markham, 219 F.3d 649, 652 (7th Cir. 2000). See also Bellaver v. Quanex Corp., 200 F.3d 485, 493 (7th Cir. 2000) ("In the context of direct and circumstantial evidence of discrimination, we have said that a long time period between a remark and an employment action can defeat the inference of a causal nexus between the remark and the decision to discharge.") (citation and internal quotation marks omitted).
Once plaintiff has proven his prima facie case, the burden of production then shifts to plaintiff's employer to articulate a nondiscriminatory reason for its employment decision, but the burden of persuasion always remains with the plaintiff. Id. If the employer articulates such a non-discriminatory reason, the burden then shifts back the plaintiff to establish that the employer's stated reason is pretextual and that a discriminatory reason actually formed the basis for the employer's actions. Id.
Defendant argues that plaintiff has failed to establish the third element of his prima facie case. The Seventh Circuit explained in Stockett,
An adverse employment action is a materially adverse change in the terms and conditions of employment that is more disruptive than a mere inconvenience or an alteration of job responsibilities. Adverse employment actions encompass more than simply the termination of employment or a decrease in salary. They also may include actions such as bestowing on an employee a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. It is well established that conditions of employment that are designed to harass and humiliate employees because of their race are actionable adverse employment actions under Title VII.221 F.3d at 1001 (citations, internal quotation marks, and alterations omitted). Plaintiff claims he was constructively discharged. The Seventh Circuit has noted that "[t]hrough constructive discharge, a plaintiff who is forced out by discriminatory conduct may bring a successful Title VII claim even though the plaintiff was never officially dismissed by the defendant." Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998). "To show constructive discharge, a plaintiff must establish that: (1) the conditions at work were so intolerable that a reasonable person would have been compelled to resign; and (2) the working conditions must be intolerable in a discriminatory way." Id. See also Mosher v. Dollar Trees Stores, Inc., 240 F.3d 662 (7th Cir. 2001) ("An employee can assert a claim of constructive discharge when she is forced to resign because her working conditions, from the standpoint of a reasonable employee, have become unbearable."). As noted above, plaintiff admitted at his deposition that he retired from his position on advice from his doctor. Although plaintiff has submitted an affidavit in response to the City's motion for summary judgment stating that he was forced to retire based on intolerable discrimination, this affidavit does not create a fact question sufficient to survive summary judgment. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (Lower courts "have held with virtual unanimity that a party cannot create a genuine issue of fact to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity."); Bank of Illinois v. Allied Signal Safety Rest., 75 F.3d 1162, 1171-72 (7th Cir. 1996) (a party may avoid summary judgment through a statement that contradicts an earlier sworn statement in only very limited circumstances such as when the affidavit clarifies ambiguous or confusing testimony or is based on newly discovered evidence). There is simply nothing ambiguous about plaintiff's deposition testimony that he retired based on his doctor's advice. As such, summary judgment is granted in the City's favor on count I.
Count II: Disability Discrimination
The ADA prohibits any "covered entity [from] discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees . . . ." 42 U.S.C. § 12112 (a). "Disability" is defined by the ADA 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 impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Plaintiff is apparently relying on the third possible definition of disability — that is, that the City regarded plaintiff as having a physical or mental impairment that substantially limits one or more of plaintiff's major life activities, since he has come forward with no evidence to support the first two possible definitions. See also Sanders v. City of Chicago, No. 98-5838, 2000 WL 198901 (N.D. Ill. Feb. 15, 2000) (Judge Williams found that plaintiffs complaint alleged only the third possible definition of disability). To establish disability discrimination based on a failure to accommodate, a plaintiff must show that he (1) is disabled within the meaning of the ADA, (2) is qualified to perform the essential functions of her job either with or without reasonable accommodation, and (3) suffered from an adverse employment decision because of his disability. Bekker v. Humana Health Plan Inc., 229 F.3d 662, 669-670 (7th Cir. 2000).
The only employment decision plaintiff appears to regard as being adverse is being placed on paid medical leave. The City argues that plaintiff has failed to show that the City regarded plaintiff as disabled when it placed him on medical leave. The Seventh Circuit recently explained the following in Amadio v. Ford Motor Co.:
Plaintiff fails to identify any adverse employment action regarding his disability claim but notes in his statement of additional material facts that "the City claimed he was disabled and had him on forced medical leave from May, 1994 to his constructive discharge in August, 1995." (Pl.'s Statement of Add'l Facts ¶ 46.) The court also notes that being placed on medical leave is the only adverse employment action argued by defendant, and plaintiff failed to take issue with defendant's characterization in his response.
The purpose of the "regarded as" definition of a "disability" is to "cover individuals 'rejected from a job because of the "myths, fears and stereotypes" associated with disabilities.'" Sutton v. United Airlines, Inc., 527 U.S. 471, 489-90, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (quoting 29 C.F.R. pt. 1630, App. § 1630.2(1)). An individual may prove a "regarded as" claim by showing that either "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton, 527 U.S. at 489, 119 S.Ct. 2139; see also 29 C.F.R. § 1630.2 (1).
It is important to note that, in order to establish a "regarded as" claim, it is not enough for a plaintiff to show that the employer knew of the plaintiff's impairment. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 (7th Cir. 1998). The plaintiff must also show that the employer believed that one or more of the plaintiff's major life activities were substantially limited by the plaintiff's impairment. See id.; see also 29 C.F.R. § 1630.2(1). Such major life activities include, for example, "earing for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Sinkler v. Midwest Property Mgmt. Ltd. Partnership, 209 F.3d 678, 683-84 (7th Cir. 2000) (citing 29 C.F.R. § 1630.2 (i)). The plaintiff must select the major life activities that he will attempt to prove the employer regarded as being substantially limited by his impairment. See Bragdon v. Abbott, 524 U.S. 624, 637-38. 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Sinkler, 209 F.3d at 683.238 F.3d 919, 925 (7th Cir. 2001). Plaintiff has wholly failed to support his claim that the City regarded him as disabled. First, plaintiff fails to identify any major life activity that the City regarded as being substantially limited by his impairment. Second, the evidence shows that at the time plaintiff was placed on medical leave, the City was attempting to determine, by ordering a psychological evaluation, whether plaintiffs condition had a psychological basis. The court cannot reasonably infer from the City's evaluation request that it regarded plaintiff as disabled. And even if the City had received an affirmative answer to its basis question prior to placing plaintiff on medical leave, this evidence might still be insufficient to show that a fact issues exists as to whether the City regarded plaintiff as disabled. See Amadio, 238 F.3d at 927. Because plaintiff has failed to present a genuine fact issue on his disability claim, summary judgment is likewise appropriate on count II.
The Seventh Circuit stated that even if Lafayette, the individual who terminated plaintiff Amado, knew of Amadio's hepatitis at the time of his termination,
this knowledge is insufficient, in itself, to show that Lafayette regarded Amadio as substantially limited in the life activity of working. To divine from the known facts the conclusion that Lafayette terminated Amadio's employment out of a fear of Amadio's hepatitis would require us not to draw a reasonable inference in Amadio's favor, as we are required to do in reviewing an order of summary judgment, but to engage in speculation. It is well-settled that speculation may not be used to manufacture a genuine issue of fact. See Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir. 1999); Patterson v. Chicago Assoc. for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998). Accordingly, Amadio has failed to show that Ford regarded him as being disabled.Id.
CONCLUSION
For the reasons articulated above, the court grants defendant's motion for summary judgment [#31].