Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 93 C 6454--Wayne R. Andersen, Judge.
Before CUDAHY, MANION, and ROVNER, Circuit Judges.
DECIDED NOVEMBER 27, 1996
Sherrylen Weiler worked for Household Finance Corporation ("HFC") for several years. She now claims that job stress caused her to develop a temporal mandibular joint ("TMJ") disorder and her supervisor caused her anxiety and depression by yelling at her during a review of her job performance. Because she feels HFC did not reasonably accommodate her by placing her with a different supervisor, she seeks recovery under the Americans with Disabilities Act ("ADA" or "the Act"), 42 U.S.C. sec. 12101 et seq. By her own contentions and the testimony of her psychotherapist she is not "disabled" as defined by the ADA, nor is she a "qualified individual" under the Act. Moreover, even if she were disabled her employer acted to reasonably accommodate her. Accordingly, we affirm the district court's grant of summary judgment for her employer.
Sherry Weiler began work as a senior account clerk at HFC in November 1987, worked for nine months, but then resigned to move to California. After her plans changed, she asked the company if she could return to work. HFC agreed to take her back, but it had to place her in a new department (albeit in the same position) because it had filled her previous job. Weiler returned to HFC with no change in salary, seniority, or benefits. During her first nine months with the company she worked under Terrence Skorupka without incident.
In October 1991 HFC promoted Weiler to manager of branch accounting and increased her duties, responsibilities, and salary. Skorupka became her supervisor again in this new position. While in this new position Weiler suffered a knee injury. She received short-term disability benefits, as well as all the time off work she needed to attend physical therapy. In July 1992 Weiler was diagnosed with a TMJ disorder, which caused pain in her jaw, head and shoulders. Her oral surgeon attributed this condition in part to stress at her job. She was allowed to leave work early two to three times per week for therapy, and received short-term disability benefits for this health problem as well. During this time period Skorupka remained Weiler's supervisor.
On February 25, 1993, Skorupka met with Weiler in HFC's cafeteria for her annual employment review. The meeting did not go smoothly. Skorupka criticized certain aspects of Weiler's performance. Weiler responded by noting some areas in which she said she performed well but without credit. Weiler claims that at the meeting Skorupka raised his voice, lunged across the table, and made her very uncomfortable with his tone of voice and sarcasm. She left the meeting in tears and reported the incident to HFC's human resources department. (Before the review, Weiler had made no complaints about Skorupka to that department or Skorupka's supervisor.) Weiler also sought a transfer to a supervisor other than Skorupka. HFC's personnel manager told her that no such position was then available, but that she would look. She also told Weiler that she could "post" (place her name as available) for any other position open in the company. In fact, Weiler was familiar with this procedure, as she had used it to obtain her promotion to manager of branch accounting.
Soon thereafter Weiler's psychotherapist, Neil Mahoney, contacted HFC and stated that Weiler was temporarily disabled by depression and anxiety and therefore unable to come to work. HFC extended short-term disability benefits to Weiler for her condition for six months, from March through September 1993, the maximum period permitted by HFC's disability insurance policy. When Weiler was no longer eligible to receive short-term benefits, HFC applied on her behalf for long-term benefits. HFC's insurer denied this application on the ground that Weiler was able to work. Weiler admits HFC also paid a portion of her medical and therapeutic costs arising from her condition. In November 1993, nine months after the confrontation in the cafeteria, HFC's human resources director contacted Weiler regarding five available positions in her salary grade. Weiler chose not to post for any of these positions. Through her attorney, Weiler responded only that "she was unable to work for HFC."
Weiler sued HFC, its parent Household International Co., and Skorupka, claiming disability discrimination in violation of the ADA, and sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000-e et seq. She also sued for intentional infliction of emotional distress as provided for by Illinois state law. HFC moved to dismiss Weiler's suit for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), asserting that neither of Weiler's federal claims were colorable and that she could not remain in federal court on only her state claim. The district court denied this motion. After additional discovery, HFC moved for summary judgment on Weiler's ADA claim, which the district court granted. Weiler voluntarily dismissed her sex discrimination and emotional distress claims.
The district court had federal question jurisdiction over Weiler's claims pursuant to 28 U.S.C. sec. 1331. This court has jurisdiction pursuant to 28 U.S.C. sec. 1291. In Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996), we recently set out the applicable standard of review of a district court's grant of summary judgment in an ADA case:
We assess the record de novo and reach our own conclusions regarding law and fact. We will not resolve factual disputes or weigh conflicting evidence. We will only determine whether a genuine issue of material fact exists for trial, which is the case where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." In reaching a conclusion as to the presence of a genuine issue of material fact, we must view the evidence and draw all inferences in a way most favorable to the nonmoving party. Where there is no genuine issue of material fact, the sole question is whether the moving party is entitled to judgment as a matter of law. If the nonmoving party fails to establish the ...