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ZAMUDIO v. PATLA

February 20, 1997

JUDITH K. ZAMUDIO, Plaintiff,
v.
ANN PATLA, Director of the Illinois Department of Mental Health and Development Disabilities, and THE ILLINOIS DEPARTMENT OF MENTAL HEALTH & DEVELOPMENTAL DISABILITIES, Defendants.



The opinion of the court was delivered by: HART

 Plaintiff Judith Zamudio is a registered nurse employed by defendant Illinois Department of Mental Health and Developmental Disabilities ("DMHDD"). Ann Patla, Director of DMHDD, is also named as a defendant. Plaintiff works at the Kiley Center, a residential facility for developmentally disabled adults that consists of approximately 50 buildings. Plaintiff suffers from asthma and chronic obstructive lung disease. Doctors have advised her that she not work outdoors when it is below 40 degrees or above 80 degrees. Her position at Kiley requires that she walk between buildings on most days. Plaintiff brought this suit alleging that defendants discriminated against her, in violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by not accommodating her disability and by rejecting her attempts to transfer to a new position. Presently pending is defendants' motion for summary judgment.

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

 
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 In 1985, plaintiff was diagnosed with asthma. She was diagnosed with chronic obstructive lung disease in 1986. Plaintiff began to work at the Kiley Center in 1991. Her respiratory problems have worsened since then. In July 1993, she first provided her employer with a note from her treating physician explaining her condition. At that time, she requested an accommodation.

 A meeting was held in July 1993 and the first accommodation offered was that plaintiff wear microfilter masks when traveling between buildings. It was soon discovered, however, that wearing the masks did not prevent plaintiff's respiratory problems. In September, the possibility of enzymes or a respirator were discussed, but neither of those were feasible accommodations.

 Plaintiff requested that she be transferred to a job that did not require travel outside. There were no openings in such positions at that time, but defendants agreed to inform plaintiff of any future openings for "inside" jobs. Plaintiff subsequently has identified and applied for openings for some positions, but defendants contend those were all promotions, not equivalent positions, and that defendants instead hired more qualified persons for those positions. In October 1993, defendants did offer that plaintiff could take disability leave on days that the weather prevented her from working. Defendants contend this is a sufficient offer of a reasonable accommodation and that plaintiff's decision to reject this offer precludes her from demanding a different accommodation.

 Discrimination under the ADA is defined as including:

 
(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
 
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; . . . .

 42 U.S.C. § 12112(b)(5)(A)-(B).

 Resolving a request for reasonable accommodation generally requires substantial communications between the employee and employer. Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996).

 
"Reasonable accommodation" is limited by the employer's knowledge of the disability. An employee has the initial duty to inform the employer of a disability before ADA liability is triggered for failure to provide accommodations. Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1134-35 (7th Cir. 1996). After an employee's request, both parties bear responsibility for determining what accommodation is necessary. Bultemeyer, 100 F.3d at 1285. Once a disability has been summoned to the fore, determining what specific ...

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