MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Plaintiff Deborah Rogers has filed a four count complaint against her employer, Chicago Board of Education, alleging discrimination. Plaintiff alleges that she was discriminated against because of her disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101
Plaintiff, an African-American female who is more than fifty years old, began her career with defendant in 1994. Plaintiff worked at Patrick Henry Elementary School ("Patrick Henry") as a teacher's assistant,
On October 4, 2013, plaintiff underwent spinal surgery for a serious medical condition. Plaintiff initially took twelve weeks of leave under the Family Medical Leave Act ("FMLA"), but defendant extended that leave to January 21, 2014. Plaintiff did not request an extension of leave prior to it running out in January 2014. Plaintiff did not communicate with defendant or Patrick Henry's principal, Januario Gutierrez, regarding her leave until she submitted a return to work request form on February 11, 2014. One component of that form was a doctor's note, which stated that plaintiff could return to work on March 1, 2014, but only with the following restrictions: "Light duty, 10-15 lbs, no bending, lifting, twisting, or sitting on the floor." Those restrictions were to remain in place until June 1, 2014.
Plaintiff's return to work request form was sent to defendant's "Talent Office" and Delila Bentley, defendant's Equal Opportunity Compliance Office ("EOCO") administrator. Shortly after that, Brian Eichhorn from defendant's Talent Office contacted Gutierrez to discuss plaintiff's restrictions. Gutierrez informed Eichhorn that Patrick Henry did not have any "light duty" positions at all, and that it did not have any other positions available. Eichhorn relayed this to Bentley on February 27, 2014. Bentley contacted plaintiff and Gutierrez separately to discuss plaintiff's restrictions on March 3, 2014. Gutierrez informed Bentley that the restrictions would not be conducive to plaintiff's position, particularly her attachment to E. After speaking with plaintiff on March 3, 2014, Bentley emailed plaintiff information about submitting a request for an accommodation under the ADA and attached the forms necessary to submit such a request. Plaintiff returned those forms to Bentley on March 13, 2014. On the Request for Reasonable Accommodation Form, plaintiff requested the following accommodations: "light duty, no lifting more than 10-15 lbs, no bending, twisting or sitting on the floor." Plaintiff also listed the following impairments: "when lifting, severe pain in neck and shoulder"; "bending — dizziness"; and "twisting or sitting causes severe pain right now." Plaintiff added that, "I work with special education their (sic) are times when you have to down (sic) on the floor and run after them. With my restrictions that would make it hard for me to do."
On March 19, 2014, Bentley contacted plaintiff again to discuss plaintiff's job duties. Plaintiff relayed that she worked with special education students with behavior disorders, sometimes had to catch students when they were having tantrums, and worked with one student who wore a diaper. Plaintiff also relayed that her doctors did not want her to return to work, but she pushed them to allow her to return. At the end of the conversation, plaintiff informed Bentley that she would apply for another leave of absence under the FMLA. Defendant was granted that leave of absence with school-level (as opposed to district-level) position protection until April 14, 2014. Plaintiff's leave and position protection were ultimately extended to April 30, 2014, as an ADA accommodation.
Plaintiff submitted another return to work request form on April 2, 2014. This time, plaintiff was released to work on May 1, 2014, under the following conditions: "For one year patient needs to frequently change positions. No prolog[ed] sitting or standing, no bending, twisting, reaching, and squatting for six months." That form was also sent to defendant's Talent Office and Bentley. Bentley emailed plaintiff on April 22, 2014, regarding plaintiff's restrictions, and instructed her to contact Bentley if she was seeking an ADA accommodation. Plaintiff did not contact Bentley or anyone else regarding the April 2, 2014, return to work request form.
As of May 12, 2014, plaintiff had not returned to work or contacted defendant, Bentley, Gutierrez, or anyone else to request an extension of leave, which had expired April 30, 2014. At that point, defendant's Talent Office removed plaintiff from the position number she held at Patrick Henry, closed that position, and moved plaintiff into a "bucket," or district-wide position, so that she could remain on paid leave.
I. Legal Standard
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the burden of establishing both elements,
To establish a violation of the ADA, plaintiff must demonstrate that: "(1) she is disabled; (2) she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) [defendant] took an adverse job action against her because of her disability or failed to make a reasonable accommodation."
A. Plaintiff Was Not Qualified to Perform Her Essential Job Functions
Defendant argues that plaintiff was not a qualified individual with a disability
First, plaintiff's argument that she was capable of performing the essential job functions of a teacher's assistant, even if true, misses the point. Plaintiff and defendant disagree as to whether plaintiff's title was teacher's assistant or special education classroom assistant, but they do not disagree as to what functions plaintiff actually performed. Plaintiff fully acknowledges the responsibilities she had in relation to E and, in her deposition, agreed that all of the job duties of a special education classroom assistant applied to her with the exception of one: assisting students in wheelchairs, because E was not in a wheelchair. Accordingly, to argue that she could perform the duties of a teacher's assistant is not to say that she could perform the job duties for which she was responsible on a daily basis. The court rejects this argument.
In the alternative, plaintiff argues that other school employees could have assisted with the more physical aspects of taking care of E. Plaintiff further argues that those physical duties were not essential because Patrick Henry operated without a substitute caretaker for E in the two weeks after plaintiff left and before a substitute could be retained. This argument also fails. First, plaintiff's argument asserts that other employees could perform her essential job duties, not that she could. Second, the fact that Patrick Henry was able to make do without a substitute while searching for one, again, does nothing to demonstrate that plaintiff could have performed her essential job duties. It also does nothing to support plaintiff's argument that those duties were not essential. In fact, taken to its conclusion, plaintiff's argument suggests that all of her duties were unessential and that her position was completely unnecessary. Plaintiff cannot have intended this meaning and the court rejects her argument.
Finally, plaintiff argues that, even if she could not perform the more physical tasks required of her, she "would have been able to perform her `essential' administrative tasks until her restriction were lifted similar to those [another teacher's assistant] performed after her student left Patrick Henry." This argument, too, fails for multiple reasons.
First, plaintiff's classification of her administrative duties as "essential" does not make them so. Plaintiff acknowledged in her deposition that she was with E from the time E arrived at school until she was dismissed, with the exception of twenty minutes, during which plaintiff ate lunch while E received one-on-one instruction from her teacher. Plaintiff also acknowledged that she spent "[m]aybe an hour" making copies. Given that ratio, even if the court assumes that plaintiff's administrative duties were in fact "essential," they could not possibly have been the only essential tasks for which she was responsible.
Second, the fact that another teacher's assistant was given additional administrative tasks during a time when the special needs student she was attached to was no longer at Patrick Henry is irrelevant. E had not transferred out of Patrick Henry and still required care. It was plaintiff's job to provide that care. Plaintiff's argument, again, does nothing to demonstrate that she was capable of performing her essential job duties. Her argument fails.
B. Defendant Did Not Fail to Accommodate Plaintiff's Disability
According to plaintiff, defendant failed to accommodate her disability by failing to: (1) engage in the "interactive process" to determine appropriate accommodations; and (2) determine if a reasonable accommodation could be made. To support her first allegation plaintiff argues that the interactive process "should have entailed working with the Plaintiff to produce a reasonable solution if one was available." The problem with plaintiff's argument is that the record indicates that defendant did just that. As detailed above, once Bentley received plaintiff's February 11, 2014, return to work request form, Bentley reached out to plaintiff a number of times to discuss her limitations, job duties, and accommodations. Plaintiff acknowledged both on her ADA accommodation request form and in conversation with Bentley the difficulties she would suffer while doing her job with her physical restrictions. Plaintiff also acknowledged that she pushed her doctors to let her return to her job with no restrictions, and that they refused. After speaking with Bentley on March 19, 2014, plaintiff applied for an extension of her medical leave. The record indicates that Bentley extended that leave to April 30, 2014, as an ADA accommodation.
As for plaintiff's April 2, 2014, return to work request form, the record indicates that it was plaintiff who failed to engage in the interactive process. Despite receiving an email instructing her to contact Bentley if she was seeking an ADA accommodation, plaintiff failed to contact Bentley, or anyone else, to discuss how her medical restrictions would impact her ability to perform her job. Plaintiff never sought additional accommodations.
Additionally, even if defendant had not engaged in the interactive process, a failure to do so "cannot give rise to a claim for relief . . . if the employer can show that no reasonable accommodation was possible."
Plaintiff's argument that defendant's failure to assign her light duty or to another position resulted in a failure to reasonably accommodate her is unavailing for two reasons. First, "[i]t is the employer's prerogative to choose a reasonable accommodation; an employer is not required to provide the particular accommodation that an employee requests."
Second, the record indicates that, other than plaintiff's position, there were no available positions at Patrick Henry, and "a worker cannot demand that his employer give him a job for which there is no vacancy without shifting the worker who has that job to another job in order to create a vacancy for the disabled worker."
In sum, the court finds that plaintiff has failed to meet her burden of establishing an ADA violation because a reasonable jury could not find that she was qualified to do her job or that defendant failed to accommodate her.
C. Plaintiff has Failed to Present Evidence of Discrimination
Title VII forbids employment discrimination based on race or national origin. 42 U.S.C. § 2000e-(a)(1). The ADEA forbids employment discrimination based on age. 29 U.S.C. § 633a. The ADA forbids employment discrimination based on disability. 42 U.S.C. § 12101. Generally, a plaintiff making such claims can defeat summary judgment in one of two ways. First, plaintiff can point to sufficient evidence in the record, whether called direct, indirect or circumstantial, from which a reasonable jury could conclude that defendant fired her because of her race or national origin, age, or disability. This is the standard way to defeat a motion for summary judgment, as recently reiterated by the Seventh Circuit in
In the instant case, the answer to that fundamental question is no. First, plaintiff's only evidence of discrimination is that she was not allowed to return to her position at Patrick Henry after she lost school-level position protection, nearly six months after her medical leave began, and only after she failed to respond to a request for more information regarding a potential need for further accommodation. The record contains not a hint of evidence that the decision to remove plaintiff from her school-level position protection was based on plaintiff's race, age or disability. Importantly, plaintiff continued to work for defendant, albeit at a different school, from February 11, 2015, until she retired on June 22, 2016.
Nor can plaintiff's case survive under the
Additionally, plaintiff has not identified any similarly situated employee outside of her protected classes who was treated more favorably. Indeed, the one person whom plaintiff compares herself to, a younger, non-African-American teacher's assistant that was hired while plaintiff was on leave, but not as plaintiff's substitute,
Moreover, even if plaintiff could establish a prima facie case, there is no evidence that defendant's legitimate non-discriminatory reason for removing plaintiff from her position — that her position protection had expired — is false. Plaintiff argues that defendant's explanation is pretextual because defendant cannot explain why plaintiff was removed from her position when she had accommodation requests outstanding or why plaintiff was not considered for a teacher's assistant position at Patrick Henry during the 2014-2015 school year. Plaintiff is incorrect.
As for plaintiff not being considered for a teacher's assistant position at Patrick Henry during the 2014-2015 school year, defendant has provided a simple explanation: she did not apply. Plaintiff's claim that she should have "bumped" a less-senior teacher's assistant, even without applying, is incorrect for the simple reason that she had lost her school-level position protection. Accordingly, even if plaintiff would have had a right to "bump" another employee, she lost any potential right to do so when she lost her school-level position protection. As for plaintiff's claim that she was removed from her school-level position protection with outstanding accommodation requests, that is simply incorrect. Plaintiff had submitted a return to work request form on April 2, 2014. Bentley instructed plaintiff to contact Bentley if she sought an ADA accommodation. Plaintiff admits that she failed to do so. Consequently, plaintiff did not have an outstanding accommodation request when she lost her school-level position protection on May 12, 2014. Plaintiff has not demonstrated pretext.
Although plaintiff need not prove pretext, at the summary judgment stage, she must show that "the evidence is such that a reasonable jury could return a verdict for [plaintiff]."
For the reasons stated above, defendant's motion for summary judgment (Doc. 32) is granted.