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PELLACK v. THOREK HOSP. & MED. CTR.

July 10, 1998

PAMELA M. PELLACK, Plaintiff,
v.
THOREK HOSPITAL AND MEDICAL CENTER, an Illinois not-for-profit corporation, Defendant.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 Plaintiff Pamela M. Pellack has brought a two count complaint against her former employer, Thorek Hospital and Medical Center ("the Hospital"), alleging violations of the Americans with Disability Act ("ADA"), 42 U.S.C. § 12101 et seq, (Count I), and common law retaliatory discharge (Count II). The Hospital has moved for summary judgement on both counts pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the motion is granted.

 FACTS

 Plaintiff was employed by defendant Hospital's predecessor, Main Occupational Health Services ("MOHS"), since 1990 as a medical assistant. Plaintiff's duties as a medical assistant included: bringing patients to the examination room; handling drug testing samples; recording patients' height, weight, and vital signs; administering breathing and hearing tests; drawing blood; cleaning patients' wounds; and assisting the clinic's doctor with basic medical procedures. Plaintiff also periodically typed insurance reports.

 In January, 1994, the Hospital took over MOHS's operations and payroll. All MOHS employees became Hospital employees. Plaintiff filled out an employment application and became a Hospital employee on January 3, 1994. Her employment application contained the following language: "I...understand that if I am employed I will be on a probationary basis for 3 months from the date of employment." About a week later, plaintiff received a copy of the Hospital's employee handbook, which also sets forth the three month probationary policy for new employees. Plaintiff claims that she did not read the employee handbook.

 In February of 1994, plaintiff first saw a doctor for a problem with her feet. She was diagnosed with a heel spur in her right foot and a Morton's neuroma and hammer toe in her left foot. *fn1" Her doctor informed her that she would need to undergo surgery and scheduled the surgery for the following week, on February 24, 1994. Prior to plaintiff's surgery, she informed one of her supervisors that she would be away from work for one work day and that she believed she would return to work after the weekend. On the date of the surgery, however, plaintiff's doctor informed her that she would be out of work for quite a while and that she would not be able to return to work the following Monday as expected. Immediately after her surgery, plaintiff informed Harry Salna, her supervisor, that the surgery was more extensive than she had anticipated and that she could not work for awhile. Salna told plaintiff that this would be no problem and they would get someone to cover for her.

 During the second week of March 1994, two weeks after plaintiff's surgery, Salna visited plaintiff at her home. Plaintiff asked Salna if there was a job that she could do from her home. Salna told plaintiff that this should not be a problem, but that she would first have to resign from her position as a medical assistant and then apply for another position, which she would get if a position was open. Plaintiff did not do this.

 In mid-March, 1994, Mr. Salna went to plaintiff's house with a "Thorek Hospital & Medical Center Family or Medical Leave Request" form and informed plaintiff that the Hospital had sent him with this form for her to sign. The form, partially completed by the Hospital to indicate that plaintiff would return to work on March 28, stated that plaintiff was taking leave "for my own serious health condition that make (sic) me unable to perform the essential functions of my job." Plaintiff refused to sign the form because she stated that she did not know how long she would need to be absent from work, and she was worried that she would be terminating herself by signing the form.

 Following her surgery, plaintiff remained under her doctor's care, including two follow-up appointments on March 2 and March 9, 1994. In these two visits, plaintiff's doctor noted in his progress notes that plaintiff was doing well, not complaining of pain, and was ambulating without difficulty, even though she had been walking excessively. During the second of these two visits, plaintiff received a note, not from her treating doctor but from an associate doctor, which stated that she could not work until further notice. On April 6, 1994, plaintiff's doctor released her to return to work in a light duty capacity. Her doctor told her that she could do clerical work or other sitting work such as the drug testing aspect of her old job. At that point, it was not plaintiff's intention to return to her position as a medical assistant; rather, she wanted to be placed in a job where she could work in a sitting position.

 Plaintiff and her doctor both contended that she could not return to her former position as a medical assistant unless she either had the assistance of others or the use of a cane or a walker. Plaintiff did not ask anyone at the Hospital to return to her former position with any form of accommodation such as the use of a cane or walker, or having an assistant.

 On approximately April 7, 1994, plaintiff called Mr. Salna and informed him that her doctor had released her to return to work in a light-duty, sedentary position. At this time, plaintiff was informed that her position had been filled in her absence and that she should call Lucy Visintine, manager of the Ambulatory Care Clinics, for more information. Visintine subsequently informed plaintiff that her employment with the Hospital had been terminated and that her position had been filled because she had been on a 90 day probation as a new employee, and thus was not eligible for any form of leave. Plaintiff contends that she did not learn she was a probationary employee until this telephone conversation with Visintine on April 11, 1994. Plaintiff's termination notice, which was completed by Visintine, also stated that plaintiff "had a surgical procedure on both feet which prevented her from ambulating in the performance of her job." The termination notice incorrectly stated that her termination was "voluntary" and that the "employee resigned."

 Plaintiff subsequently learned that prior to her termination in mid-March, the Hospital had prepared a job order form, signed by a vice president of the Hospital, Frank Reichert, and by the Hospital's president, Frank Solare, seeking to fill plaintiff's vacant position. There is conflicting testimony as to what Frank Reichert knew about the status of plaintiff's medical condition at the time he made the decision to fill plaintiff's medical assistant position. Plaintiff argues that Reichert perceived her as disabled. The Hospital contends that Reichert knew that plaintiff was absent from work because of her surgical recovery, but decided it was necessary to fill her position.

 On March 21, 1994, plaintiff filed a worker's compensation claim with the Illinois Industrial Commission, alleging that her foot problems were work-related. Prior to filing her claim, plaintiff called Salna and told him that her doctor believed that her condition might have been caused as a result of excessive standing and walking at work. Plaintiff asked Salna if she would be eligible for any worker's compensation benefits, and was told no. At this point, plaintiff retained a worker's compensation attorney. Plaintiff alleges that she was discharged in retaliation for filing her worker's compensation claim.

 Next, plaintiff's attorney began discussions with the Hospital to see if they would reinstate plaintiff. After a number of months, during which plaintiff agrees she was willing to wait while the Hospital considered her request for reinstatement, the Hospital made an offer to plaintiff to return to work as a receptionist at the clinic. Because the receptionist who had held that position was resigning in July 1994, the position needed to be filled. Plaintiff accepted the position and began in late July, 1994. The Hospital rehired plaintiff at her former salary, which was $ 3.00 an hour more than the normal receptionist salary, and the Hospital also counted plaintiff's work in January and February as "time-served." Both sides agree that this position accommodated plaintiff's need for a sedentary job.

 Plaintiff left her receptionist job for a second foot surgery on October 22, 1994. While away from work following her second foot surgery, plaintiff was approached by an employee of the Teamsters Local 705 Health Center, who offered her a receptionist position, which plaintiff accepted. On November 18, 1994, plaintiff sent Salna a letter of resignation. Plaintiff alleges that she was constructively discharged from her receptionist job with the Hospital because co-workers were distant with her. Plaintiff further alleges that the clinic's physician, Dr. Radulovic, who was a personal friend of plaintiff, was distant toward her and once told her that she (Dr. Radulovic) would be fired if she associated with plaintiff. Dr. Radulovic denies stating this. Plaintiff believes this treatment occurred because she had filed the worker's compensation claim. Plaintiff never complained to anyone at the Hospital about her treatment or any comments made to her.

 Plaintiff filed a charge of discrimination with the EEOC in July 1994, which she later amended in late September 1994. Plaintiff's EEOC charge did not allege that she had been constructively terminated from the Hospital in violation of the ADA or any other civil rights law. On September 24, 1994, the EEOC issued plaintiff its "Dismissal and Notice of Rights" form, which stated that the EEOC was unable to conclude there ...


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