in his absence. The reason for Himpelmann's disability leave is not identified. It is not established that the reason for his disability leave would qualify as a disability under the ADA.
When Mary Helen Gester returned from disability leave in 1995, she was assigned to an unposted position in timekeeping where she had not previously worked. The reason for the disability leave is not identified
and it is not established that Gester is disabled within the meaning of the ADA.
Authority is split, see McCollough v. Atlanta Beverage Co., 929 F. Supp. 1489, 1503-04 (N.D. Ga. 1996) (collecting cases), but this court adopts the reasoning set forth in McCollough, 929 F. Supp. at 1504-05, in holding that the requirement of applying existing policies to disabled employees means that transfer policies applicable to all employees must be equally available to disabled employees. There is no requirement, however, that once some disabled employees are offered reassignments to newly created positions or reassignments to lower positions at the same pay, all disabled employees must be offered such an opportunity.
It is not established that Himpelmann and Gester are disabled within the meaning of the ADA. But even assuming they are not disabled, it cannot be reasonably inferred from the evidence presented that the Kiley Center has a general policy of permitting reassignments, with or without retained pay, for any employee who desires a reassignment, or even for any employee who can no longer perform all the duties of his or her position. Plaintiff does not point to an existing policy under which she qualified for an automatic reassignment to a newly created position or a hiring preference over other candidates that were hired for positions that she desired to obtain. Plaintiff has not shown she has any viable claim based on failure to apply any existing transfer or reassignment policy without discrimination.
Assuming Himpelmann and Gester are not disabled persons, an inference of discrimination could be drawn if plaintiff shows one or both of those employees were similarly situated to her, but were treated more favorably. Cf. Schmidt, 89 F.3d at 345. Plaintiff has identified a registered nurse position in the Medical Services Department as a position to which she could be transferred.
Defendants contend Rehab nurse is not an inside job, but plaintiff's affidavit to the contrary must be accepted as true.
In Fall 1993, a Rehab nurse position became vacant, but the Rehab Department was reorganized and the position eliminated. Nevertheless, on the record presented, it cannot be conclusively determined that the need for an additional Rehab nurse was any less than the need for a second administrative assistant at the time Himpelmann was assigned those duties. The Rehab nurse's position apparently was a bargaining unit position, whereas Himpelmann's personnel positions probably would not be. Defendants, however, do not contend that the applicability of any collective bargaining agreement is a basis for distinguishing the two situations, nor do defendants point to any other basis for finding Himpelmann not to be similarly situated to plaintiff. On the limited record presently before the court, an inference of discrimination can be drawn.
There is no contention that Gester was assigned to a newly created position. However, it is claimed that Gester was noncompetitively assigned to her new position. Shortly before the Rehab Department was reorganized, a Rehab nurse position was filled. Plaintiff applied for that position, but another employee was selected. Although the selection was made in September 1993, the position was announced in June 1993, before plaintiff had even informed her superiors of her need to have a disability accommodated. Gester was not similarly situated; at the time she was reassigned it was known she could not perform her other position. Plaintiff also applied for positions subsequent to September 1993, but those positions involved promotions. Again, these were not similar situations to Gester's and therefore the treatment of Gester is not evidence from which an inference of discrimination may be drawn.
Cf. Schmidt, 89 F.3d at 345.
Plaintiff also contends she was discriminated against in being rejected for two positions for which she applied: a 1994 application for Habilitation Program Coordinator
and a 1995 application for Nursing Supervisor for the Rehab Department. Defendants contend the application for Nursing Supervisor was rejected because a more qualified candidate was hired and the Coordinator application was rejected because it was offered to another employee on the basis of union contract rights.
Plaintiff points to no direct evidence of discrimination. Therefore the indirect method of proof applies under which plaintiff initially must present prima facie evidence of a discriminatory denial of promotion. However, since defendants raise no issue regarding whether plaintiff can present a prima facie case, that issue need not be addressed. Instead, defendants have gone directly to meeting their production burden of presenting legitimate, nondiscriminatory grounds for denying the promotions to plaintiff. The burden is on plaintiff to show by a preponderance of the evidence that the stated grounds are pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747-49, 125 L. Ed. 2d 407 (1993); Kariotis v. Navistar International Transportation Corp., 951 F. Supp. 144, , 1997 U.S. Dist. LEXIS 843, 1997 WL 37065 *3 (N.D. Ill. 1997); Williams v. Vierk Distributing, Inc., 1997 U.S. Dist. LEXIS 611, 1997 WL 17795 *5 (N.D. Ill. Jan. 15, 1997); Serritella v. Midwest Dental Products Corp., 1996 U.S. Dist. LEXIS 12562, 1996 WL 495563 *3 (N.D. Ill. Aug. 28, 1996). Plaintiff must present a material factual dispute as to the proffered reason. See Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995) (quoting Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992)). She can do this by showing (a) the proffered reason had no basis in fact, (b) the proffered reason did not actually motivate the decision, or (c) the proferred reason was an insufficient reason to motivate selecting another person for the position. Collier, 66 F.3d at 892 (quoting Cliff v. Board of School Commissioners, 42 F.3d 403, 412 (7th Cir. 1994)); Vierk, 1997 U.S. Dist. LEXIS 611, 1997 WL 17795 at *5.
Defendants provide a conclusory statement in an affidavit that the Coordinator position "was awarded to Ralph Coari on the basis of contract rights under the union contract." Walls Aff. P 8. Neither side explains what the contractual basis was. Still, this is sufficient to satisfy defendants' burden of production. The burden is on plaintiff to show pretext. In her Rule 12(N)(3)(a) Statement P 57, plaintiff states: "Plaintiff admits that one position of Habilitation Program Coordinator was awarded to Ralph Coari, but further states that she was arguably more qualified than Coari because he had not met all his objectives as shown in his evaluation of performance, while she had." However, plaintiff does not dispute that the union contract obliged Kiley to promote Coari and she also points to no evidence of Coari's performance evaluations. Neither does she explain how defendants could have avoided their contractual obligations. No genuine factual dispute exists regarding defendants' stated nondiscriminatory grounds for selecting Coari over plaintiff. The claim for discrimination in denying plaintiff a Habilitation Program Coordinator position will be dismissed.
The record is inconsistent regarding the time line for filling the Nursing Supervisor position, but those differences are not material. Barbara Cochran, Director of Nursing, was responsible for selecting for that position. Plaintiff apparently applied for the Nursing Supervisor position in late 1994 or early 1995. However, in early 1995, the announcement apparently was withdrawn while it was considered whether the position would be eliminated in a reorganization. Cheryle Johnson was temporarily assigned to the position. At some point Cochran interviewed plaintiff for other positions. She was also to interview plaintiff on January 19, 1995 for the Nursing Supervisor position. It is unclear whether Cochran interviewed plaintiff at that time or on a later date. In September or November 1995, Johnson was awarded the position on a permanent basis. Defendants' stated grounds for selecting Johnson over plaintiff are that Johnson was more familiar with nursing procedures and protocol and, unlike plaintiff, she had no record of disciplinary action.
Cochran testified that, in her interviews of Johnson and plaintiff, she concluded that Johnson had better knowledge of procedures. She recalled that plaintiff showed lack of knowledge of procedures in the interview, but Cochran could not recall any specific procedure for which plaintiff showed lack of knowledge. Plaintiff provides performance evaluations showing she was consistently rated as meeting or exceeding expectations of job knowledge. Also, plaintiff works on the evening shift where her supervisor is not a nurse and therefore she must rely on her own knowledge of procedures. Additionally, plaintiff had more nursing experience than Johnson and was certified in rehabilitation.
As for the difference in disciplinary records, plaintiff does not dispute that she had a prior disciplinary action. For purposes of summary judgment, it must be assumed that, although Johnson apparently had no formal disciplinary action against her, she left her position immediately prior to her temporary assignment at least in part because her supervisor was discharging her from his department. Cochran testified that she was aware of a personality conflict between Johnson and her former supervisor. Cochran further testified that she never asked the former supervisor for his version of the dispute or his opinion of Johnson's performance. A factual dispute exists as to whether Johnson's disciplinary record was superior to plaintiff's. Also, Cochran's stated failure to speak to Johnson's former supervisor raises a question as to the sincerity of Cochran's stated reliance on disciplinary records.
Plaintiff has presented a genuine factual dispute as to whether the stated grounds for selecting Johnson over plaintiff were pretextual. The claim for discriminatory denial of the Nursing Supervisor position will not be dismissed.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment [18-1] is granted in part and denied in part. Plaintiff's claims are dismissed except her claims (1) for denial of a reasonable accommodation; (2) discriminatory denial of a noncompetitive transfer to a newly created position; and (3) discriminatory denial of her application for a nursing supervisor position. In open court on March 26, 1997 at 9:15 a.m., the parties shall submit an original and copy of a final pretrial order in full compliance with Local Rule 5.00.
William T. Hart
UNITED STATES DISTRICT JUDGE
DATED: FEBRUARY 20, 1997