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BANKS v. HIT OR MISS

February 24, 1998

DARIEL BANKS, Plaintiff,
v.
HIT OR MISS, INC., a Delaware corporation, Defendant.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Dariel Banks, sued her former employer, Hit or Miss, Inc. ("Hit or Miss"), alleging dismissal in violation of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12101 et seq. Hit or Miss moves for summary judgment. For the following reasons, the motion is granted.

 Hit or Miss is a retail clothing store. Hit or Miss hired Ms. Banks as an assistant manager in training in May, 1992. Ms. Banks was promoted to assistant store manager in January, 1993. Hit or Miss stores open at 8:00 a.m. and may close as late as 8:30 p.m. Either the manager or an assistant manager must be on duty while a store is open. A standard work day at Hit or Miss is eight hours, with one thirty minute lunch break. Ms. Banks' standard shift was eight hours, but she sometimes worked longer hours when a store was inadequately staffed. The physical duties of an assistant store manager are listed as bending, stretching, twisting, lifting up to twenty pounds, climbing stairs, and standing for an entire work shift. (Rule 12(M) P 11).

 Gene Koch is Hit or Miss' District Manager for Chicago and he evaluated Ms. Banks' performance on several occasions. In January, 1993, Mr. Koch evaluated Ms. Banks while she was an assistant manager in training and gave her mostly "good" ratings. (Rule 12(M) P 29). *fn1" Mr. Koch next evaluated Ms. Banks in August, 1993. (Rule 12(M) P 31). In the August evaluation, almost all of Ms. Banks' marks were in the "needs improvement" and "unsatisfactory" categories. In October, 1993, Mr. Koch gave Ms. Banks a Substandard Corrective Counseling and Documentation Form ("Substandard form") detailing Ms. Banks' poor performance and warning of further disciplinary action should Ms. Banks fail to improve her performance. (Rule 12(M) P 33). Shortly after the Substandard Form was filed, Debbie Mallett, Hit or Miss' Territorial Human Resources Manager for Chicago, withdrew Ms. Banks' August, 1993 evaluation and the Substandard form.

 In July, 1993, Ms. Banks began to experience pain and a burning sensation in her feet. She visited Nancy Pickard, a doctor of podiatry, who diagnosed heel bursitis and plantar fascia bilateral (fascitis). Approximately twenty percent of the population suffers from such conditions. (Rule 12(M) P 40). In August, 1993, Ms. Banks took a three week leave of absence from work to rest her feet. Upon her return to work, Ms. Banks requested she be allowed to wear lace-up shoes. After presenting medical documentation of her condition, Hit or Miss granted this request.

 In December, 1993, Ms. Banks requested an eight week leave of absence beginning on December 29, 1993, to have corrective surgery on her feet. Hit or Miss granted Ms. Banks' leave request. Hit or Miss allows an employee to take up to twenty-six weeks of covered medical leave. But, the employee's job is only guaranteed for the first twelve weeks of the leave. After twelve weeks, Hit or Miss determines whether manpower needs permit it to keep an employee's position unoccupied for further time periods. (Rule 12(M) P 46).

 Ms. Banks had surgery on her right foot on December 29, 1993, and on her left foot on January 26, 1994. The surgery improved Ms. Banks' condition. (Rule 12(M) P 81). On February 25, 1994, Kimeta Peterson, Hit or Miss' Benefits supervisor, received a facsimile from Dr. Pickard stating that, due to surgery, Ms. Banks would not be able to return to work until the first week of April. On March 3, 1994, Ms. Peterson wrote Ms. Banks a letter granting a leave extension. (Rule 12(M) P 51). The letter also informed Ms. Banks that, because her leave would extend beyond twelve weeks, there was no guarantee a position would be available for her upon her return to work. (Rule 12(M) P 52). The letter stated that Ms. Banks' expected date of return was April 3, 1994, and that she should contact the District Manager before her return to determine the availability of her position. *fn2" The letter informed Ms. Banks that if she did not return to work by April 3, 1994, and did not contact the District Manager by that date, she would be considered voluntarily terminated. Id.

 Extensions of Ms. Banks' leave were granted twice in April and once in May. Ms. Banks continued to suffer foot pain during her recuperation period. On June 14, 1994, Ms. Peterson received a fax from Dr. Pickard stating Ms. Banks would likely be able to return to work on July 1, 1994. (Rule 12(M) P 65). Dr. Pickard sent another fax on June 30, 1994, indicating Ms. Banks could return to work with the following limitations: (1) she could work no more than eight hours at one time; (2) she needed fifteen minute breaks every three to four hours; (3) she should not perform work on a ladder; and (4) she needed to wear lace-up shoes. (Rule 12(M) P 67). While Ms. Banks was on crutches for a period after her surgery, when she sought to return to work she did not require a walking aide. (Rule 12(M) P 80). When she stopped treating Ms. Banks, Dr. Pickard believed Ms. Banks could, with some pain, continue her "normal life activities." (Rule 12(M) P 83). Ms. Banks was terminated on July 9, 1994. She has received no treatment from either Dr. Pickard or the Cook County Hospital Pain Clinic since June, 1994. (Rule 12(M) P 83; Rule 12(M) Reply P 77). *fn3"

 ADA

 Since Ms. Banks has not presented evidence of direct discrimination, she must proceed under the burden-shifting analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). To establish a prima facie case of discrimination Ms. Banks must prove: (1) she is a member of a protected class; (2) she was meeting Hit or Miss' legitimate job expectations; (3) she was terminated; and (4) employees not in the protected class were treated more favorably. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995). If Ms. Banks can establish a prima facie case the burden shifts to Hit or Miss to articulate a legitimate, nondiscriminatory reason for terminating Ms. Banks. Id. Should Hit or Miss meet the burden of showing a nondiscriminatory reason for Ms. Banks' termination, the burden shifts back to Ms. Banks to show Hit or Miss' explanation is simply a pretext for discrimination. Id.

 Ms. Banks meets the second and third prongs of the prima facie case. She was terminated and, since her below average performance evaluations were withdrawn, there is a genuine issue of fact as to whether Ms. Banks was meeting the legitimate job expectations of Hit or Miss. For the following reasons, however, Ms. Banks has failed to ...


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