United States District Court, Northern District of Illinois, Eastern Division
November 8, 1999
KIRSTEN HAINKE, PLAINTIFF,
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.
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
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) ¶
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. ¶ 25). In one of Hainke's performance
reviews a co-worker wrote (G.56.1(a) ¶ 24):
Always shows 7.5 or more hours. Not sure how she does
it when she doesn't get here until 10:00 ±.
Several co-workers had to take time away from their own responsibilities
to answer the telephone from 9 a.m. until Hainke arrived (see Perkins
Dep. 39-40, Miller Dep. 39-40). That problem grew worse in the fall of
1997 (Perkins Dep. 38). Gleeson says that Sztelle discussed Hainke's
tardiness and the disruption it caused with Gleeson's managing partner
George Cumpata ("Cumpata") on numerous occasions (G.56.1(a) ¶ 26).
In June 1997 Hainke asked that her medical insurance be changed from an
EPO to a PPO so that she could see certain medical specialists regarding
her various conditions (H.Mem.2). Sztelle reviewed and approved Hainke's
request (G.56.1(a) ¶ 31). After that change and until November 10,
1997 Hainke had approximately 30 doctors' appointments for the diagnoses
and treatment of her various ailments (H.Mem.2).
During the same time frame, in Hainke's last four to six months with
Gleeson, she would be late to work on a weekly basis (id.). Indeed, she
admits that her tardiness problem "got progressively worse" towards the
end of her employment (Hainke Dep. 115-16). On November 10 Hainke met
with Sztelle in his office.*fn11 Hainke contends that Sztelle
"interrogated" her as to why, after 30 doctors' appointments, she still
did not know what was wrong with her (Hainke Dep. 70-71).*fn12 Hainke
began crying and said, pointing to her heart monitor, "how do you think I
feel not knowing what's wrong with me?" (id. 71). Up to that point Hainke
had been diagnosed only with mitral valve prolapse, not with fibromyalgia
or Raynaud's Phenomena (id. 72).
Hainke continued to be late in the weeks following her meeting with
Sztelle.*fn13 Sztelle and Cumpata discussed the situation, and the
decision was made to terminate her employment.*fn14 On December 5,
1997, less than a month after her meeting with Sztelle, Hainke was
formally discharged (Hainke Dep. 27).
Hainke contends she was terminated because of her various medical
conditions, which she days amount to an ADA "disability." But Hainke's
claim fails at the very threshold of ADA analysis: the need to show that
she is "disabled" in the statutory sense.*fn15
Section 12102(2) defines an individual's "disability" as:
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) a record of such impairment or
(C) being regarded as having such an impairment.
Hainke lays claim to disability status under the rubric of either (A) or
(C). Although ADA does not itself define Section 12102(2)'s key terms,
the ADA regulations provide guidance that the case law has honored as
definitive. Reg. § 1630.2(i) defines "major life activities" to
include "functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working."
And under Reg. § 1630.2Cj)(1) The term "substantially limits"
describes a person who, as compared with the average person in the
general population, is either "unable to perform a major life activity"
or is "[s]ignificantly restricted as to the condition, manner or duration
under which [that] individual can perform a major life activity."*fn16
Although Hainke has to be sure asserted the existence of several
impairments (mitral valve prolapse, fibromyalgia, Raynaud's Phenomena and
nerve damage), she has not identified any major life activity that is
substantially limited by those impairments.*fn17 H. Mem. 6-7 suggests
that the various ailments affect major life activities such as breathing
and walking and that Hainke's chronic fatigue impaired her ability to
care for herself. But that argument misses the mark. As Skorup v. Modern
Door Corp., 153 F.3d 512, 515 (7th Cir. 1998)(emphasis added) observes,
in that context ADA prescribes that Hainke "provide some evidence
establishing a genuine issue of material fact over whether her condition
resulted in her being substantially limited from employment generally."
Here Hainke has not highlighted any evidence indicating that her
impairments substantially limited her in the workplace. More
specifically, she has not proffered any showing that her chronic fatigue
and sleeping problems were the cause of her tardiness or that going to
bed earlier could not alleviate that problem (H.App.Ex. K-16).*fn18
Quite the contrary, it is clear that
her ailments do not necessitate her arrival at work after 9 a.m., because
the job she took after leaving Gleeson*fn19 required her to start at 8
a.m. (G.56.1(a) ¶ 55). Further, Hainke has stated that neither the
mitral valve prolapse nor the fibromyalgia interfered with her ability to
perform her new job (G.56.l(a) ¶ 55, Hainke Dep. 96-97). So Hainke has
not shown that she is substantially limited in any major life activity
that affects her ability to work.*fn20
Hainke's alternative approach is to say that she is disabled under
Section 12102(2)(C): that Gleeson regarded her as having a disability
that substantially limited a major life activity. Skorup, 153 F.3d at 515
(adapted to this case) sets out Hainke's burden on that issue:
It is not enough for [Hainke] to show that [Gleeson]
was aware of her impairment; instead [Hainke] must
show that [Gleeson] knew of the impairment and
believed that she was substantially limited because of
Thus Hainke "must show that [Gleeson] believed that she was unable to
work a particular class or broad range of jobs" (id.).
In support of that contention, H. Mem. 7 simply points to Hainke's
having told Gleeson that her ailments were the reason for her tardiness.
*fn21 But no evidence has been offered that Hainke's statement to
Gleeson would indicate a substantial workplace limitation. Sztelle says
that Hainke never elaborated on how her illness prevents her from
arriving on time (H.App.Ex. K-16), and Hainke does not contend that she
did. Nor is there any evidence to suggest that Gleeson perceived Hainke
as possessing that type of impairment.
Although Section 12102(2)(C) speaks of Gleeson's subjective beliefs, an
objective look at Hainke's argument independently confirms its incredible
nature. Hainke's position is that Gleeson thought her impairments
(presumably resulting in her chronic fatigue and difficulty sleeping)
limited her ability to be at any job before 9:15 a.m. and that the
limitation was substantial. Such an argument, given the lack of any
evidentiary support, is one that no reasonable jury could accept.
Because Hainke has not produced sufficient evidence to create a genuine
issue of material fact as to whether she is substantially limited in any
major life activity or whether Gleeson regarded her as such, Gleeson's
motion for summary judgment on Hainke's ADA claim succeeds. That claim
must be dismissed.
ERISA § 510 provides in part:
It shall be unlawful for any person to discharge,
fine, suspend, expel, discipline, or discriminate
against a participant or beneficiary for exercising
any right to which he is entitled under the provisions
of an employee benefit plan. . . .
Hainke contends that Gleeson violated that prohibition by firing her to
bar her access to employee benefits. On that score Lindemann v. Mobil Oil
Corp., 141 F.3d 290
, 295 (7th Cir. 1998) requires Hainke to show that
Gleeson "terminated [her] with the specific intent of preventing or
retaliating for the use of benefits." In other words, Hainke must
establish that Gleeson "made a conscious decision to interfere with
[Hainke's] attainment of . . . benefits" (id.,
quoting Turner v. Schering-Plough Corp., 901 F.2d 335
, 347 (3d Cir.
To make out a prima facie case under ERISA § 510, Lindemann, 141
F.3d at 296 (quoting Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th
Cir. 1996)) prescribes that Hainke must establish that she:
(1) belongs to the protected class; (2) was qualified
for [her] job position; and
(3) was discharged or denied employment under
circumstances that provide some basis for believing
that the prohibited intent to retaliate was present.
To demonstrate intent, "proof of pretext is required" (id., quoting
Little v. Cox's Supermarkets, 71 F.3d 637, 643 (7th Cir. 1995)(quotations
omitted)). Circumstantial evidence of pretext is allowed in the context
of the familiar McDonnell Douglas burden-shifting approach (id.)*fn22
Here, because Gleeson has certainly advanced a legitimate,
nondiscriminatory reason for terminating Hainke,*fn23
it is unnecessary
to examine whether Hainke has established a prima facie case (id.). This
opinion instead turns directly to whether Hainke can demonstrate that
Gleeson's stated reasons for terminating her were a pretext for
H. Mem. 13 contends that the fact of Hainke's termination within a
month after Gleeson learned of her medical condition and that she might
have to undergo heart surgery creates an inference of "prohibited
intent." But such mere knowledge, in the face of Hainke's long-standing
deficiency and Sztelle's pre- meeting evaluation that her "serious
problem . . . has gone on for too long!" lacks the causal element of a
"conscious decision" to interfere with Hainke's benefits. Though to be
sure Hainke is entitled to reasonable inferences in her favor, she seeks
instead to draw unreasonable inferences.
Thus Hainke also fails to establish a prohibited intent, because she
has not demonstrated that Gleeson's asserted motive for termination was
mere pretext.*fn24 Because once more no genuine issue of material fact
exists, Gleeson's motion for summary judgment on Hainke's ERISA claim is
also granted. That claim too must be dismissed.
Hostile Work Environment Sexual Harassment Claim
Hainke also claims that she was subjected to hostile work environment
sexual' harassment. But the heart of that claim is time-barred because
Hainke did not file an EEOC charge within 300 days of her alleged
harassment. Hainke was required to have done so if the harassment had
been "sufficiently palpable that a reasonable person would realize she
substantial claim under Title VII" (Galloway v. General Motors Serv.
Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996)).
Hainke does not contest that proposition — she rather attempts to
salvage her claim by highlighting conduct that falls within the 300-day
time frame. But what remains in the form of Hainke's non-time-barred
claim is not the stuff of which Title VII claims are made. With Hainke's
original January 6, 1998 filing with the Illinois Department of Human
Rights (H.56.1(b) ¶ 54) as the triggering date, only conduct after
March 13, 1997 is at issue — and that renders nonactionable all
conduct before Hainke's meeting with the sexual harassment committee.*fn25
H. Mem. 14 suggests that Hainke's claim can survive based on her
imprecise comment to Forman that the harassment had subsided some but not
ceased and her generalized assertion that the harassment continued up
until her termination. But that conclusory type of subjective assertion,
unsupported by any specifics at all, cannot do the essential Rule 56(e)
evidentiary job of identifying harassment that was objectively hostile
— that was "sufficiently severe or pervasive" (Adusumilli v. City
of Chicago, 164 F.3d 353, 361 (7th Cir. 1998)). Because Hainke's vague
statements are clearly insufficient in that respect, her hostile work
environment sexual harassment claim fails as well. That claim too must be
dismissed with prejudice.
Title VII retaliation Claim
Hainke's last claim, that she was fired in retaliation for complaining
about the sexual harassment, suffers from the same defect as her like
ERISA claim: the failure to establish a causal link between her
termination and any statutorily protected right. To establish a prima
facie case, Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027,
1038 (7th Cir. 1998) requires Hainke to establish that:
(1) she engaged in statutorily protected activity; (2)
she suffered an adverse employment action; and (3)
there is a causal link between the protected activity
and the adverse action.
With the third element in dispute, H. Mem. 14 asserts that Sztelle's
awareness of Hainke's complaint establishes the requisite link, because
he was the person who decided to terminate Hainke. But in this instance
Hainke was discharged at least 15 months after she voiced her complaint
(see Sweeney v. West, 149 F.3d 550
, 557 (7th Cir. 1998)(internal
quotation marks omitted), reconfirming that a "telling temporal sequence
can establish the required nexus" only if "the employer's adverse action
follows fairly soon after the employee's protected expression"). And
Gleeson's knowledge of Hainke's complaint is alone not enough to create a
reasonable inference of discriminatory conduct. As Sanchez v. Henderson,
188 F.3d 740
, 747 (7th Cir. 1999) observes:
[M]ere knowledge of the plaintiffs protected activity
prior to an adverse employment action does not
establish a retaliatory motive.
So Gleeson succeeds in its motion for summary judgment on Hainke's
final claim. It, like the others, must be dismissed.
Hainke has not identified a genuine issue of material fact that could
establish any of her various claims. Hence Gleeson "is entitled to a
judgment as a matter of law" (Rule 56(c)) as to all of Hainke's
claims. This entire action is dismissed with prejudice.