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May 2, 1996

LINDA PLACE, Plaintiff,

The opinion of the court was delivered by: DENLOW




 Plaintiff Linda Place ("Plaintiff") has filed a five-count pro se amended complaint against defendants Abbott Laboratories, Inc. ("Abbott") and Lake-Cook Psychologists and Counseling Associates ("Lake-Cook"), arising out of Plaintiff's employment and termination at Abbott. Abbott is a party to all five counts. Lake-Cook is a party only to Count III *fn1" In Count I, Plaintiff alleges that Abbott discriminated against her in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq. ("ADA"), by requiring her to undergo an independent medical examination ("IME") prior to permitting her to return to work from her disability leave. In Count II, Plaintiff alleges that Abbott breached its duty under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA") by failing to fully and fairly review her appeal of benefits denial and by allowing an Abbott employee, Robert N. Beck, to review her benefits denial. In Count III, Plaintiff alleges that Abbott interfered with her rights under the ERISA by refusing to arrange for a required medical examination to be administered by a capable medical practitioner. In Count IV, Plaintiff alleges that Abbott discriminated against her on account of her sex in violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a), Title VII and Section 704(a) of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et seq., as amended, claiming Abbott knew or should have known about acts of sexual harassment and intentionally failed to take appropriate remedial action. Count V is a cause of action for retaliation under Title VII. Abbott has filed a motion for summary judgment to Counts I, II, III, and IV. For the reasons set forth below, the Court should grant Abbott's motion for summary judgment as to Counts I, II, and III and should deny Abbott's motion as to Count IV.


 Plaintiff was employed by Abbott from February 25, 1986 to November 17, 1992. (Abbott's Statement of Material Facts (hereinafter "12(M)" PP 3, 39.) While employed by Abbott, Plaintiff was a participant in the disability plan under ERISA. (Plaintiff's Complaint (hereinafter "Comp." P6.)

 Plaintiff complained to the Abbott Human Resources Department of sexual harassment by her supervisor in July, 1991. (Plaintiff's Response to Abbott's Motion for partial Summary Judgment Statement of Material Facts (hereinafter "12(N)" P13). Abbott responded to Plaintiff's complaints by requiring all interaction and communication between Plaintiff and her supervisor to be handled by an intermediary (12(M) P14). Subsequently, in December of 1991 (12(M) P14), Plaintiff took a disability leave of absence from Abbott due to depression and post-traumatic stress disorder. (12(M) P18). Following her disability leave, Plaintiff was released by her therapist to return to full work duties on May 15, 1992. (12(M) P19.)

 On May 18, 1992, Dr. Brockton L. Weisenberger, Director of Corporate Employee Health at Abbott, and other Abbott employees decided that additional medical information regarding Plaintiff's mental state was necessary based on a concern that Plaintiff may be a danger to herself or others. (Def. Ex. F.55).

 On May 19, 1992, Lake-Cook agreed to perform and administer an IME of Plaintiff pursuant to a provider agreement between Lake-Cook and CNR Health, Inc., a non-party, who is the managed care provider for Abbott employees (Lake Cook Ans. P36). A variety of psychological testing and a therapy session was to be included in the examination. Plaintiff did not keep her first scheduled appointment on June 12, 1992. Dr. Weisenberger then met with Plaintiff and informed her that if she did not submit to an IME she would be terminated. (Def. Ex. D. 23). This discussion was followed by a letter to Plaintiff from Dr. Weisenberger dated June 12, 1992, informing her again that "if you fail to follow through with the independent medical examination, you will be ineligible to stay on disability leave of absence and continue receiving benefit payments. Further it will be assumed that you have resigned." Id.

 After Plaintiff left Lake-Cook's offices, Dr. Jochem telephoned Dr. Weisenberger and informed him of Plaintiff's refusal to participate in the IME without tape recording. Dr. Jochem informed Dr. Weisenberger that he was still willing to conduct a medical examination of Plaintiff, however, he was unwilling to do so if tape recorded. (12(M) P37).

 Abbott did not reinstate Plaintiff because she failed to complete an IME. (12(M) P38). Abbott terminated Plaintiff on November 17, 1992 because she exhausted the maximum disability leave of absence allowed under Abbott's policy. (12(M) P39).


 Summary judgment "shall be rendered forthwith if 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). Celotex Corporation v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Sarsha v. Sears Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).

 When reviewing the record on summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmovant. Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995). To avert summary judgment, however, plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A summary judgment proceeding is not a vehicle for the resolution of factual disputes, it is designed to determine whether there is any material dispute of fact that requires a trial. Id.


 Plaintiff's ADA claim under Count I is barred because the alleged discriminatory act occurred before the effective date of the ADA. The Americans with Disabilities Act became effective on July 26, 1992. 42 U.S.C. § 12111 note - Effective Date. See Pub.L. No. 101-336, § 108, 104 Stat. 327, 337 (1990). The Act was not retroactive. Graehling v. Village of Lombard, 58 F.3d 295, 296 (7th Cir. 1995); O'Bryant v. City of Midland, 9 F.3d 421, 422 (5th Cir. 1993). In order for there to be liability under the ADA, the alleged discriminatory act must have occurred after the Act's effective date of July 26, 1992. 42 U.S.C. § 12111. Graehling v. Village of Lombard, 58 F.3d 295, 296 (7th Cir. 1995).

 The ADA states in relevant part:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other ...

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