The opinion of the court was delivered by: SHADUR
Jennifer Gray ("Gray") has sued Ameritech Corporation ("Ameritech"), asserting that Ameritech violated the Americans with Disabilities Act ("ADA," 42 U.S.C. §§ 12101-12117
) by discriminating against her because of her skin condition. Gray contends that Ameritech, through the actions of Gray's supervisor Marj Scott ("Scott"), created a work environment that was so hostile that Gray was forced to quit her job as an operator--a claimed constructive discharge.
Ameritech now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56. Both sides have complied with this District Court's General Rule ("GR") 12(M) and 12(N),
and the motion is fully briefed and ready for decision. For the reasons set out in this memorandum opinion and order, Ameritech's motion is granted and this action is dismissed.
Summary Judgment Standards
Under familiar Rule 56 principles Ameritech has the burden of establishing both the lack of a genuine issue of material fact and that it is entitled to a judgment as a matter of law ( Celotex v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Summary judgment is appropriate if the record reveals that no reasonable jury could find for Gray on her claim. For that purpose the evidence must be "construed as favorably to [Gray] as reason and the record permit" ( Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 272 (7th Cir. 1996)). Thus this Court will draw inferences in the light most favorable to nonmovant Gray, but it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). What follows in the Facts section, then, is a factual statement drawn from the parties' submissions, with any differences between them resolved in Gray's favor.
Gray began working for Ameritech in 1989 as a directory assistance operator (A. 12(M) P44). That job entailed responding to customer calls by locating business and residential telephone numbers, addresses and zip codes, and sometimes handling "911" emergency calls (id.). In November 1993 Gray moved from Ameritech's Lake Shore office to its Canal Street office, at which time Scott became Gray's supervisor (id. P45). Gray's allegations are limited to actions taken against her by Scott during Gray's tenure at the Canal Street office--between November 1993 and August 1994 (Gray Dep. 55).
a condition characterized by the eruption of circumscribed, discrete and confluent, reddish, silvery-scaled maculopapules; the lesions occur preeminently on the elbows, knees, scalp, and trunk. . . .
Psoriasis is not contagious (G. 12(N) P3).
During the first outbreak of the condition in 1990 (when she was working at the Lake Shore office) Gray had "white sores all over [her] face and body" that sometimes would "bust and bleed" (Gray Dep. 41-42). Gray's skin would also flake off, and the dryness of her skin would make her itchy and uncomfortable. Gray has characterized the initial outbreak at the Lake Shore office as "much worse" than it was later at the Canal Street office, when the discriminatory treatment occurred (Gray Dep. 37-38). Gray went on disability leave from June through November 1990,
during which time doctor treated the psoriasis with pills, ointments and ultraviolet radiation (Gray Dep. 43). By the time that Gray returned to work in November 1990 her condition had cleared up somewhat, although she continued to take pills and use ointments to keep it controlled (Gray Dep. 49).
Although Gray has had psoriasis continually since that first outbreak in 1990, she has suffered intermittent outbreaks during which her condition was worse than at other times (Gray Dep. 55). Unfortunately the record is unclear as to exactly how the psoriasis manifested itself during the period at issue in this lawsuit--November 1993 through August 1994. In addition to the itching and dry skin that always accompanied the outbreaks, while Gray worked at the Canal Street office her skin was flaking off, she was losing some hair, and the medical treatment that she was receiving was causing her skin to become darker (Greer Dep. 15, 26, 28, 30; McClaurin Dep. 11, 57-58). During that 10-month period the condition fluctuated in severity--sometimes the psoriasis was apparent because it made Gray's skin "scaly" and "not very pleasing to the eye" (Carey Dep. 12; see also McClaurin Dep. 11), while at other times it was "hardly noticeable" (Carey Dep. 12; Watson Dep. 16). Gray controlled the psoriasis to some degree with medication, including pills that minimized the itching and lotion that cleared up the blemishes (A. 12(M) P27). One side effect of the medication was that it caused Gray to feel drowsy (Gray Dep. 108). Another tangible effect of the psoriasis itself was that Gray had to take a high number of "specials"--non-scheduled breaks--to use the bathroom to scratch her head (to relieve the itching) and to apply lipstick (to relieve dry lips) (Caver Dep. 61-62).
At the time that Gray began working at the Canal Street office she was in the midst of disciplinary steps for poor job performance and poor attendance (A. 12(M) P51). In December 1993 Scott and Gray discussed Gray's performance and attendance problems, and Scott warned Gray that she would be subject to additional discipline--including possible dismissal--if her performance and attendance did not improve (A. 12(M) P52).
Gray says that from that point forward Scott did much more than just monitor Gray's performance: She claims that Scott constantly harassed her because of the psoriasis, ultimately making the work environment so hostile that it caused her to quit. Gray bases her hostile environment theory on ten categories of actions or patterns of behavior, described in these terms at G. Mem. 11:
(a) Marj Scott forced the Plaintiff to go on disability leave in April of 1994;
(b) Marj Scott followed her to the bathroom, or would have someone else follow her then questioned her as to what she was doing in the bathroom;
(c) Marj Scott reprimanded the Plaintiff for attending to her skin condition by using a comb to scratch her head and/or apply medication at her work station and while on a bathroom special even after the Plaintiff informed her of the reasons she engaged in such acts;
(e) Marj Scott referred to Plaintiff's skin condition as contagious when she would talk alone with the Plaintiff and while in front of Plaintiff's co-workers;
(f) Marj Scott would make faces reflecting "repulsion" in Plaintiff's presence and behind her back;
(g) Marj Scott would have numerous conversations with the Plaintiff about her skin condition;
(h) Scott would constantly stare at the Plaintiff;
(i) Scott would make other derogatory remarks regarding Plaintiff's skin condition, including telling her that she is "flaking" all over the place; and,
(j) Marj Scott would take more observations of the Plaintiff than other employees and pull her from the board more than other employees to "talk".
Despite what Gray perceived as ongoing and pervasive harassment by Scott because of Gray's skin condition, she did not complain directly to Ameritech management, either in person or in writing (A. 12(M) Pl0, 11). Nor did she file any formal grievance, either with Ameritech's internal Equal Employment Opportunity ("EEO") office or with the Equal Employment Opportunity Commission ("EEOC") (A. 12(M) PPl0, 14). Instead Gray spoke to Vivian Caver ("Caver"), her union steward, with the expectation that Caver would relay Gray's complaints to a higher-up in Ameritech management (Gray Dep. 59-60). Gray never filed a formal union grievance about Scott's harassment (Caver Dep. 88), and only on one occasion (discussed later) did Caver carry Gray's informal complaints about Scott to anyone in Ameritech's management (Caver Dep. 116-21).
On July 25, 1994 Gray notified Ameritech that she would be accepting the company's pension plan enhancement program
and leaving the company effective August 26, 1994 (A. 12(M) P12). Gray's first and only direct complaint to Ameritech management came two weeks after her last day at Ameritech in the form of a September 7, 1994 letter to David Sons ("Sons"), the office manager of the Canal Street office (A. Ex. 8). After leaving Ameritech Gray worked for Rush-Presbyterian St. Luke's Medical Center from October 1994 to November 1994, and she has been employed by the United States Postal Service from December 1994 to the present.
On October 4, 1994 Gray filed an employment discrimination charge with EEOC, and EEOC issued a right-to-sue letter on October 31, 1994. This suit followed on January 27, 1995.
Gray claims that Ameritech, through Scott's actions, violated ADA by creating a hostile work environment that ultimately forced her to quit her job. Ameritech sets out three grounds for prevailing via summary judgment:
1. It claims that Gray's psoriasis is not a "disability" as the term is defined for ADA purposes, so that Gray is not entitled to relief under ADA.
2. It also contends that the Canal Street office was not a sufficiently hostile environment to give rise to liability on that theory.
3. Finally it asserts that Gray left Ameritech's employ under her own volition because of the pension plan enhancement employment and not because of the work environment, thereby negating the constructive discharge element of Gray's claim.
This opinion will consider each of these arguments in turn.
Psoriasis as a Disability Under ADA
ADA's Section 12112(a) reads:
Under ADA a "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires" (Section 12111(8)). To recover under ADA a plaintiff must show ( White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995)):
1. she is a disabled person within ADA's definition of that concept;
2. she is also "qualified" in the sense defined in Section 12111(8); and
3. the employer terminated her because of her disability.
Of course the first of those three requirements presents a threshold question--if a person is not "disabled" there is no need to proceed further with the inquiry ( Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th ...