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GABRIEL v. CITY OF CHICAGO

July 7, 1998

KIROS TEWOLDE' GABRIEL, Plaintiff,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: CASTILLO

MEMORANDUM OPINION AND ORDER

 Plaintiff Kiros Tewolde' Gabriel brought this action against her former employer, the City of Chicago, seeking damages arising from the City's termination of her employment. Gabriel raised three claims in her original complaint. Count I alleged that the City fired Gabriel, who is African-American, because of her race in violation of Title VII. In Count II, Gabriel charged the City with terminating her employment in violation of 42 U.S.C. § 1983. Count III alleged that the City refused to make reasonable accommodations for complications arising from Gabriel's pregnancy and subsequently discharged her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.

 The City filed a motion to dismiss all three counts. On March 18, 1997, this Court granted the motion in part, dismissing Count I with prejudice and Count II without prejudice. Currently before the Court is the City's motion for summary judgment on Count III. *fn1" The City's sole ground for the motion is that Gabriel has failed as a matter of law to establish that she suffers from a disability. In assessing this issue, the City argues, we must deem the facts in its Local General Rule12(M) fact statement admitted because Gabriel's Rule 12(N) response and statement of additional facts are not supported by citations to the record. We disagree with both points, *fn2" and deny the City's motion for summary judgment.

 RELEVANT FACTS

 As is required in summary judgment proceedings, we begin by presenting the facts in a light most favorable to the plaintiff. *fn3" Gabriel was hired by the City of Chicago Police Department on June 5, 1995 as a probationary data entry operator. Def.'s Facts P 3. Gabriel's probationary period was six months, and would have ended on December 5, 1995. Def.'s Facts P 4.

 In July 1995, Gabriel notified her supervisor, Katie Jezidija, that she was pregnant. Def.'s Facts P 8. Later that month, Gabriel informed Jezidija that she was having a difficult pregnancy. Gabriel Dep. at 31. Gabriel explained that she was suffering from back pain and experiencing sharp pains in her stomach. Id. She told Jezidija that the pain prevented her from standing for long periods of time, that she had swollen feet, and felt fatigued. Id. Jezidija replied that Gabriel needed a note from her doctor verifying her condition. Pl.'s Facts P 25. Gabriel complied by submitting a "Disability Certificate" dated July 25, 1995 from Dr. Albert Chams, which explained that Gabriel could perform only light work duties for the duration of her pregnancy. Pl.'s Am. Facts P 12(b). Jezidija accommodated Gabriel's request that she no longer lift boxes, pull cabinets or carry heavy folders. Pl.'s Am. Facts P 12(a).

 Sometime in October 1995, Jezidija was replaced by Kathy Meehan. Pl.'s Am. Facts P 12(c); Pl.'s Facts Ex. D. Gabriel testified that Meehan exhibited a rigid, unaccommodating attitude toward Gabriel's physical limitations. Pl.'s Am. Facts P 12(d); Gabriel Dep. at 79. For example, Gabriel complained in November 1995 that she was having problems standing; Meehan responded that Dr. Chams' Disability Certificate was "vague," and that he had to "fill out [a] form" indicating Gabriel's specific limitations. *fn4" Pl.'s Am. Facts App. C. Meehan's handwritten notes dated November 8, 1995 document that Meehan met with Gabriel and made clear that

 
There is no limited duty for civilians. Could have dr. fill out form but needed to understand. Went over definition for limited duty vs. full duty. Told her to think of officers for full duty and must be able to perform all functions of job. She asked re: disability and limited duty and I mentioned she was on probation.

 Pl.'s Am. Facts Ex. C. Meehan insisted that Gabriel "must perform all duties required at the front desk," noting that Gabriel "had not been performing some duties in deference to the doctor's note." Pl.'s Am. Fact. Ex. D. Meehan proceeded to force Gabriel to perform tasks that involved heavy lifting, pulling and carrying. Pl.'s Am. Facts P 12(d)(2)-(3).

 It is undisputed that Gabriel did not receive any negative performance evaluations until November 1995, after Meehan began to supervise her. Meehan reviewed Gabriel on November 8, 1995, remarking that although Gabriel is "cooperative," "meets public well," and "is learning computer well," she "must be better about time," "must learn to handle the front desk alone," and "must pick up on [computer] speed." Pl.'s Am. Facts App. C. Meehan stated in the review that Gabriel "must perform all work at front desk," and that she would "accommodate" Gabriel "by having the file clerks pull files for her when possible." Id.

 Following this review, Gabriel claims that Meehan and another supervisor, Lance Lewis, began to magnify minor errors. Pl.'s Am. Facts P 12(e). Lewis noted on a November 16, 1995 Counseling Session Report that Gabriel did not complete an assignment to enter medical absence slips on the computer. Pl.'s Am. Facts P 12(e)(1). However, a contemporaneous memo from the medical records supervisor says that "THIS IS OK! NOT A COMPLAINT !" Id. On November 20, 1995, Meehan noted on a Counseling Session Report that Gabriel had not completed a copying assignment on November 18th. Pl.'s Am. Facts P 12(e)(2). Gabriel responded in the space for her comments that she had completed 4-3/4 of the five files given to her, and that work had been interrupted by referrals, phone work and a malfunctioning copier. Id. At some point in November 1995, Gabriel informed Meehan that she would be taking a leave of absence in December 1995 because she was experiencing pregnancy-related difficulties. Pl.'s Facts P 35.

 When the time came in late November to determine whether to promote Gabriel to permanent status, Meehan recommended against it. She explained that Gabriel was not always ready to begin work at her scheduled starting time, that she could not work quickly enough to keep up with the fast-paced workload, and that she had taken five days off between June and mid-November 1995, all of which bordered a weekend or a scheduled day off. On November 21, 1995, Meehan wrote a memo to Commander Thomas P. Sadler of the Personnel Division requesting authorization to terminate Gabriel's employment on these grounds. See Def.'s Facts Ex. 6.

 The City authorized Gabriel's termination on November 27, 1995. Def.'s Facts Ex 7. Meehan and Lewis met with Gabriel two days later to tell her about the decision. Pl.'s Am. Facts Ex. I. Meehan explained that while the quality of Gabriel's work was good in that she was a "well-met and cooperative employee," the quantity of her work was only minimally acceptable and her work attendance was unacceptable. Meehan characterized Gabriel's absence from work five days over the course of six months as a "pattern of taking time off around weekends over her regular day off." Id. As a result, Meehan explained that the City was "not going to pass her on probation." Id. Gabriel challenged Meehan's evaluation, stating that she performed the same duties and completed the same amount of work as the other front desk employees. With regard to her attendance, Gabriel explained that her condition required taking some time off for doctor's appointments, that she had never taken time off without pay, and that she actually had one vacation day left. Id. Gabriel was emphatic that she had not been treated fairly. Id.

 Five days after she was fired, Gabriel went into premature labor and gave birth -- two months before her due date. Pl.'s Facts P 42. Gabriel experienced back pain for six weeks following the birth of her baby. Gabriel Dep. at 78. Since that time, Gabriel has not suffered from any of the ailments that she had during her pregnancy. Def.'s Facts P 15.

 Gabriel filed a timely charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 4, 1996, and that agency issued her a Notification of Right to Sue on July 30, 1996. Gabriel then filed this action under the ADA. She claims that the City engaged in disability discrimination by (1) refusing to accommodate the physical limitations stemming from her pregnancy-related impairments; and (2) firing her based on her pregnancy-related impairments, absences for obstetric appointments, and her planned pregnancy-related leave of ...


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