three sales periods of 1998, Mr. Restis not only failed to meet
his budgeted sales, his sales were minuscule and only a fraction
of even Ms. Oliva's, so it is difficult to imagine what promise
or progress management foresaw. Ms. Oliva was also working in
what was new territory for her, having recently relocated to
Chicago. While Ms. Oliva was fired for her sales shortfall, Mr.
Restis' salary was cut, but he was retained and did not resign
until nearly eight months later. The defendants then attempt to
equate the treatment of Ms. Oliva and Mr. Restis by comparing
their overall length of employment, since Mr. Restis resigned
approximately one year and a half after he began his employment
while Ms. Oliva was fired after a similar time period. However,
it is not clear why Mr. Restis resigned — the defendants intimate
he was asked to but are coyly unclear on this point — nor does it
matter. There is a clear difference in consequence and stigma
between being fired and resigning from a position, and it is
disingenuous for the defendant to suggest otherwise, particularly
since Ms. Oliva was not given the option of resigning but was
instead unceremoniously fired.
"The factfinder's rejection of the defendants'
nondiscriminatory explanation of the facts comprising a prima
facie case may itself be enough to find for the plaintiff on the
issue of liability." Wichmann v. Board of Trustees of Southern
Illinois Univ., 180 F.3d 791, 803 (7th Cir. 1999) (citing St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993)). Here, the evidence tendered shows that
there were other male sales representatives who did not meet
their sales goals, but were not fired, so a jury could reasonably
reject this as the real reason Ms. Oliva was fired. Because the
defendants rest their entire argument for summary judgment on its
nondiscriminatory explanation of the facts, that Ms. Oliva was
fired because she did not meet her sales goals, her successful
rebuttal of this argument could persuade a rational trier of fact
that this reason is pretextual and that could be enough for that
trier of fact to find the defendant liable for sex
discrimination. Hicks, 509 U.S. at 511, 113 S.Ct. 2742. I must
therefore deny the defendants' motion for summary judgment on
Ms. Oliva claims that her employer fired her because of and
reasonably failed to accommodate her disability. The ADA
prohibits employer discrimination against an employee on the
basis of a disability, including both discriminatory discharge
and the failure to provide reasonable accommodation.
42 U.S.C. § 12112(a), (b)(5)(A). A claim for failure to accommodate is
separate and distinct under the ADA from one of disparate
treatment because of a disability, see Sieberns v. Wal-Mart
Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir. 1997), but under
either theory, the ADA proscribes discrimination against only a
"qualified individual with a disability." Id. at 1022.
Therefore, in order to protest such activity, Ms. Oliva must
first meet the definition of a qualified individual with a
Ms. Oliva claims that she is disabled due to injuries sustained
in a car accident. The ADA defines the term "disability" to mean
a physical or mental impairment that substantially limits one or
more of the major life activities of such individual.
42 U.S.C. § 12102(2)(A). Major life activities are basic life
functions, such as "caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." Knapp v.
Northwestern Univ., 101 F.3d 473, 479 (7th Cir. 1996). Ms. Oliva
alleges that due to her TMJ, herniated cervical disc, paralysis,
surgical scar, and colon problems, she is substantially limited
in her ability to walk, talk, sit, stand, chew and drive. She
offers no medical records, but the defendants do not dispute her
medical condition. In addition, Ms. Oliva's alleged disability is
supported by her
statements included in her application for Social Security
disability benefits that she was not supposed to operate a car so
could not go out in the sales field driving and had to limit time
on the phone with customers. According to Ms. Oliva, her
application for Social Security disability benefits was denied
because, although Social Security determined she was precluded
from performing her current position, she could perform other
jobs. However, a Social Security determination that one is not
disabled is not dispositive and does not estop a plaintiff from
claiming disability under the ADA. Cleveland v. Policy
Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143
L.Ed.2d 966 (1999). Ms. Oliva has therefore created a genuine
factual issue as to whether she was substantially limited with
respect to certain major life activities.
To qualify for protection under the ADA, Ms. Oliva must also
show that with or without reasonable accommodation, she can
perform the essential functions of her position, 42 U.S.C. § 12112
(a), 12111(8), a determination made as of the time of the
employment decision. Ross v. Indiana State Teacher's Ass'n Ins.
Trust, 159 F.3d 1001, 1013 (7th Cir. 1998) ("plaintiff bears the
burden of establishing that he is a `qualified individual with a
disability'"), cert. denied, 525 U.S. 1177, 119 S.Ct. 1113, 143
L.Ed.2d 109 (1999). In short, Ms. Oliva must show that, when she
was terminated, she could perform her job.
The defendants claim that the essential functions of a sales
representative are speaking and driving. Sales representatives
must make sales calls either in person or on the phone, both of
which necessitate a good deal of speaking and some driving.
Although Ms. Oliva claims she can do these things, to qualify as
disabled under the ADA and in her application for Social Security
benefits, she claimed she was "substantially limited" in these
activities by her disability. Ms. Oliva falls into this catch-22
situation faced by ADA plaintiffs, i.e. the difficult task of
proving that they are sufficiently impaired to be considered
disabled yet still able to perform the essential duties of the
job. Here, if Ms. Oliva is substantially limited in the tasks of
driving and talking, she cannot do her job; if she instead claims
she is only minimally limited in these tasks, she is not
disabled. Under either situation, she is not a "qualified
individual with a disability" entitled to ADA protection unless
she can demonstrate a reasonable accommodation which will permit
her to perform her position, which she fails to do.
The only accommodations Ms. Oliva claims should have been
available are a decreased work load or work schedule. However,
Ms. Oliva does not explain which tasks could have been farmed out
to other employees or how this could be accomplished so that she
could still perform her job. The option of taking time off or
limiting her hours or activities is seemingly what she was doing
before she was terminated, and the result appeared to be that she
could not adequately perform her job by meeting her sales goals.
Visiting and talking to clients and potential clients is an
integral part of her job, and she fails to show how she could
have successfully performed her job by limiting either of these
tasks. The only accommodation seemingly available would have been
for the defendants to offer her an entirely different position.
However, Ms. Oliva has not met her burden of showing that a
vacant position existed for which was qualified. See McCreary v.
Libbey-Owens-Ford Co., 132 F.3d 1159 (7th Cir. 1997).
While it might seem reprehensible for an employer to fire an
employee who is recovering from the continuing effects of a
serious car crash, that employee is not protected by the ADA
unless she can show that she is a "qualified individual with a
disability," which Ms. Oliva cannot do.
The defendants' motion for summary judgment is DENIED with
respect to Ms.
Oliva's Title VII claim but GRANTED with respect to her ADA