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HAINKE v. GLEESON

November 8, 1999

KIRSTEN HAINKE, PLAINTIFF,
v.
GLEESON, SKLAR, SAWYERS & CUMPATA LLP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, Senior District Judge.

MEMORANDUM OPINION AND ORDER

Kirsten Hainke ("Hainke") has sued her ex-employer Gleeson, Sklar, Sawyers & Cumpata LLP ("Gleeson"), claiming that Gleeson (1) violated the Americans with Disabilities Act ("ADA," 42 U.S.C. § 12101 to 12117 *fn1) by terminating her employment because of her various medical conditions, (2) violated Employee Retirement Income Security Act ("ERISA") § 510 (29 U.S.C. § 1140) by firing her to prevent her access to employee benefits, (3) violated Title VII of the Civil Rights of 1964 ("Title VII," 42 U.S.C. § 2000e to 2000e-17) by subjecting her to hostile work environment sexual harassment and (4) also violated Title VII by firing her in retaliation for protesting and reporting the sexual harassment.*fn2 Gleeson now moves for summary judgment under Fed.R.Civ.P. ("Rule") 56.

Both sides have complied with this District Court's local rules that were General Rules 12(M) and 12(N) at the time of the parties' filings but that have respectively been redesignated as LR 56.1(a) and 56.1(b) effective September 1, 1999.*fn3 Gleeson's Rule 56 motion is now fully briefed and ready for decision. For the reasons set out in this memorandum opinion and order, the motion is granted in full and this action is dismissed.

Summary Judgment Standards

Familiar Rule 56 principles impose on Gleeson the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For that purpose this Court must "read[] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" (St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997)). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" (McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), that does not negate the potential for summary judgment in cases where a movant plainly satisfies the Rule 56 standards (Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). In those terms summary judgment is appropriate if the record reveals that no reasonable jury could conclude that Hainke was treated in a statutorily prohibited fashion (see Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1402 (7th Cir. 1996) and cases cited there). And as the ensuing discussion demonstrates, that standard dooms Hainke's claims.

What follows in the Facts section (and in later factual discussion) is culled from the parties' submissions. And as with every summary judgment motion, this Court accepts nonmovant Hainke s version of any disputed facts where her version is arguably supported by the record.

Facts

Hainke was hired by public accounting firm Gleeson in June 1994 as part of its Skokie office's administrative staff (G.56.1(a) ¶ 10).*fn4 Her duties ranged from answering the telephones and receiving mail to billing and accounts receivable work. Mark Sztelle ("Sztelle") was Gleeson's Chief Operating Officer and oversaw the Skokie office's day-to-day activities during the period in question (G.56.1(a) ¶ 11). Hainke received annual performance evaluations during her employment with Gleeson, comprising a self-evaluation, written performance evaluations by co-workers and an oral performance evaluation by Hainke's supervisor (G.56.1(a) ¶ 13).*fn5

In August 1996 Hainke was approached by Linda Forman ("Forman"), a member of Gleeson's sexual harassment committee who had heard that Hainke was upset (G.56.1(a) ¶ 39). Upon being told of allegations of improper conduct on the part of some Gleeson employees, Forman asked Hainke to meet with the sexual harassment committee to discuss the problem in more detail (id. ¶ 40).*fn6 After the committee met with the individuals involved (id. 1144-46), Hainke decided not to file a formal complaint (id. ¶ 47).

Several weeks after that meeting Forman again met with Hainke, who then said that the sexual harassment had died down some but had not ceased (H.56.1(b) ¶ 48). Despite being asked, Hainke did not want Gleeson to take any further action on that matter (G.56.1(a) ¶ 48). Hainke asserts that inappropriate comments continued up until the time of her termination, though she did not make any further complaints (H.Mem.4).

In the late summer of 1997 Hainke was diagnosed with mitral valve prolapse (Hainke Dep. 85), a condition that assertedly*fn7 caused fainting,*fn8 chest pains, shortness of breath, heart palpitations, always being cold, seizures and a reduced energy level (H.Mem.6). At one point Hainke even wore a heart monitor, a fact known to Gleeson (H.56.1(b)(3)(B) ¶ 25).

In February 1998, after Hainke was terminated, she was diagnosed with fibromyalgia (Hainke Dep. 92). During her employment with Gleeson, that condition had resulted in her having sleeping difficulties, a severely reduced energy level, chronic fatigue, stiffness and aching in the muscles and joints, and irritable bowel syndrome (Hainke Dep. 92-93). Hainke also suffers from Raynaud's Phenomena, which causes her extremities to fall asleep and for her to be cold most of the time (Hainke Dep. 99-100). Finally, Hainke has nerve damage as the result of an accident that causes pinching and pain in her back (H.Mem.6).

As far back as early 1996 Hainke had begun to arrive late to work on a regular basis (H.Mem.2). Though her scheduled work hours were from 9 a.m. to 5:15 p.m., Hainke wrote on her 1996 performance evaluation that she typically came "in 15 minutes late everyday" (H.56.1(b) ¶ 8)*fn9 In her August 1996 self-evaluation, under the category of tardiness, Hainke marked the second to lowest category titled "Repetitive Abuse/Sporadic Compliance" (H.56.1(b) ¶ 15). That September Hainke was told in her oral evaluation that Gleeson wanted her to be at work by 9 a.m. (G.56.1(a) ¶ 16). Hainke's performance evaluations by her co-workers during 1996 also included low marks in the tardiness category.*fn10

Aside from her tardiness, Hainke provides examples from numerous 1996 and 1997 evaluations that indicate that she performed better than adequate work. One of her 1996 performance evaluations stated that Hainke "has a great attitude and is always accepting new responsibilities" (H.56.1(b)(3)(B) ¶ 2). Another evaluation said that during tax season Hainke "performed outstanding. . . . [and][] consistently worked very late in the evening to complete the work that was given to her that day" (H.56.1(b)(3)(B) ¶ 3). Indeed, about half of the H. 56.1(b)(3)(B) statement of additional facts is made up of comments from her co-workers indicating that she was on whole an "above average" employee (see, e.g., 56.1(b)(3)(B) ¶ 6-16).

But Hainke's 1997 performance reviews also reflect tardiness as a continuing problem. Hainke again marked the second lowest category under tardiness for her self-evaluation (G.56.1(a) ¶ 19). In Sztelle's notes of Hainke's 1997 oral evaluation, he wrote (G.56.1(a) ¶ 20):

  Being late is a serious problem — has gone on
  for too long! Kirsten must start promptly at 9 a.m.
  — serious problem 9:20/9:30 is late — must
  improve on this.

While Hainke does not contest the existence of that statement in Sztelle's notes, she does deny that such comments were ever made to her during the evaluation process (H.56.1(b) ¶ 20). Nevertheless it is uncontested that Sztelle's written evaluation stated that Hainke should "Keep trying to arrive on time" (G.56.1(a) ¶ 21).

Hainke again received low scores in 1997 from fellow employees under the tardiness category (id. ΒΆ 25). In one of Hainke's performance reviews a ...


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