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United States District Court, Northern District of Illinois, Eastern Division

May 9, 2000


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


Mary Seisser ("Seisser") has sued her ex-employer Platz Flowers and Supply, Inc. ("Platz"), claiming that she was discharged or "constructively discharged"*fn1 because of her poor vision in violation of the Americans with Disabilities Act (42 U.S.C. § 12101 to 12117).*fn2 Platz has moved for summary judgment under Fed. R.Civ.P. ("Rule") 56. Both sides have complied with this District Court's LR 56.1,*fn3 and Platz's motion is now fully briefed and ready for decision. For the reasons set out in this memorandum opinion and order, the motion is denied.

Summary Judgment Standards

Familiar Rule 56 principles impose on Platz 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)). As Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999) has more recently quoted from Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994):

A genuine issue for trial exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole.

That "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)). However, neither "the mere existence of some alleged factual dispute between the parties" (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) nor the existence of "some metaphysical doubt as to the material facts" (Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) will defeat a summary judgment motion.

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


Seisser was hired by Craig Thoren ("Thoren") to work for Platz in 1978 (S.Resp. ¶ 1). In 1985 Seisser followed Thoren from Elgin to Morton Grove, Illinois when he was promoted to General Manager (id. ¶ 2). While she initially acted as an "office supervisor," in 1991 Seisser became Thoren's assistant (Seisser Dep. 12-13). As such, her duties related to "insurance benefits, collections, accounts receivable, writing promissory notes, [and] doing any of the special projects that [Thoren] needed done" (id. 13).

In 1995 Thoren became Platz' CEO (S.Resp. ¶ 2). In that same year Seisser had a toe and part of her foot amputated as a result of an injury (S.St. ¶ 4). That procedure also revealed a heart problem that necessitated heart surgery as well (id. ¶ 5). Undiagnosed diabetes was the cause of both the heart problem (P. St. ¶ 7) and Seisser's subsequently impaired vision (Seisser Aff. ¶ 5). During that period Platz and Thoren adequately accommodated Seisser's health problems.*fn4

By October 1995 Seisser's vision problems had made work difficult for her (S.St. ¶ 7), and her eyesight ultimately deteriorated to a point where she was legally blind (P. St. ¶ 8).*fn5 Platz reimbursed Seisser for her purchase of a magnifying screen for her computer and later purchased her a larger computer monitor (S.Resp. ¶ 19). While Seisser was again working full time by January 1996 (Seisser Dep. 33), a portion of her duties were then performed by Thoren (P. St. ¶¶ 21-23). In that same month Seisser asked Thoren to have the Department of Rehabilitative Services ("DORS") evaluate her disability and her duties to determine what if anything could be done to assist her. Thoren's response "was a flat outright no" (Seisser Dep. 62).*fn6

In May 1996 Seisser again asked that Thoren allow DORS or some other agency to evaluate her situation and make recommendations (S.St. ¶ 12). Seisser says that Thoren again responded negatively, stating that a government agency might require wheelchair ramps or aisles to be widened (id.). Thoren asserts, however, that he agreed to Seisser's second request (P. Resp. ¶ 13).*fn7 But the fact is that no agency ever did an evaluation, and Thoren never raised the subject with Seisser again (Thoren Dep. 62). Seisser also asked Thoren whether certain computer reports that Seisser dealt with could be drawn from the beginning of the print run so that the text would be darker. Thoren said "no," stating "that would be asking somebody to do something out of the ordinary" (S.St. ¶ 13).*fn8

Thoren testified that Seisser's poor eyesight resulted in performance problems. For example, she misfiled items, injected typographical errors into correspondence and miscoded bills (Thoren Dep. 35, 36-37, 39).*fn9 Thoren also said that Seisser suffered from a "general slowing in what she was able to do before" (id. 35). For her part Seisser said that her vision problems "prevent[ed][her] from performing certain tasks" (Seisser Dep. 90), but even though she admitted making more mistakes than before, she estimated that she "could perform 80 to 90 percent of [her] job functions" (id. 94).

On October 31, 1997 Thoren initiated a conversation with Seisser to discuss her future with Platz (S.St. ¶ 14). Thoren told Seisser "I want you to take an early retirement" (id. ¶ 15). When asked by Seisser if there were any other options, Thoren said "no" (id. ¶ 16).*fn10 Seisser believed that she had no choice in the matter and was "forced" to retire (Seisser Dep. 47).

Thoren has offered the different spin that he "suggested" early retirement "in light of the way her health problems were" (Thoren Dep. 71). As P. Mem. 3 puts it, Thoren "could see no other way to reconcile her health and increasingly poor job performance with the company's needs."*fn11 Describing a conversation with Seisser about why she could not work for him any more, Thoren said (Thoren Dep. 74):

[T]he roles had been reversed and where she was there catching my mistakes, those kinds of things had turned around.

Though Platz takes issue with labeling Seisser's departure as a "termination" (P. Resp. ¶ 18), Thoren says he never gave thought to what he would do if Seisser did not accept early retirement (id. ¶ 19). And when asked if he felt that he terminated her employment, Thoren said "I prefer not to look at it that way" (id. ¶ 20a*fn12). Yet Thoren says that it was his intention to end Seisser's employment with Platz at that time (id.) — a statement entirely consistent with Seisser's testimony (Dep.49, 53-54) that he told her he had made up his mind ("I decided I was going to have to leave you") the night before their meeting — and Thoren specifically checked off "Dismissal" on Seisser's termination report instead of boxes labeled "Resignation" and "Mutual Agreement" (P. Resp. ¶ 20b). P. Mem. 3 insists that Thoren was doing Seisser a favor because early retirement would allow for "income continuation through the company's long-term disability plan."

Seisser's ADA Claim

Stevens v. Illinois Dep't of Transp., 210 F.3d 732, 735-36 (7th Cir. 2000) sets out the elements required for a successful ADA case:

To make out a claim under the ADA, an individual must show: 1) that she is disabled; 2) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) that the employer took an adverse job action against her because of her disability or failed to make a reasonable accommodation.

To defeat summary judgment Seisser "need only demonstrate that there is a genuine issue of material fact regarding" any one of those elements (Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999), speaking of the comparable requirement in a Title VII case).*fn13

P. Mem. 5 says that Platz concedes the first element "and is even willing arguendo to concede the [second] element for purposes of this Motion." But those concessions were made with respect to the earlier articulation of the standards in Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999), which made no express reference to "reasonable accommodation."*fn14 So Platz must be held to have conceded only the first portion of the second Stevens element (which tracks Foster's third element): that Seisser "was otherwise qualified for her job." Though it is arguable that the notion of granting any necessary "reasonable accommodation" is implicit in a determination that Seisser was "otherwise qualified," it follows that any issue regarding reasonable accommodation is not now before this Court.

Instead Platz does battle only as to the fourth Foster element in n. 14, arguing that it is not satisfied because Seisser "can point to no adverse employment action taken because of her disability" (P. Mem.5). Platz views Seisser's claim as being premised solely on a "constructive discharge" theory, and P. Mem. 5-6 says that Seisser cannot succeed on her claim because there is no evidence that Seisser's conditions at work were "intolerable."*fn15

But while Seisser's complaint uses the term "constructive discharge," it does so to describe her contention that she was "forced . . . to take early retirement" (Complaint ¶ 11). Any reader must recognize that Seisser's complaint uses "constructive discharge" not in the earlier-described sense that working conditions were so intolerable that she was effectively forced to resign, but in the equally permissible sense that her employer's announced decision really forced her to retire. After all, the law regularly uses the word "constructive" to describe situations in which the actual factual scenario (in this instance being forced to retire) is treated as carrying the same legal consequence as a different factual situation (which in this case would have been Seisser's firing).

Thus Seisser's assertion of her "forced retirement" connotes an adverse employment action equivalent to her actual termination. As Patterson, 853 F.2d at 1406 (citation omitted) teaches:

[C]oerced resignation . . . is treated in law as the equivalent of outright discharge, for reasons too obvious to dwell on.

While that case gives as an example of coerced resignation (identical for our purposes to "forced retirement") a quite different factual circumstance — one in which "the plaintiff's superior had forced him to resign by threatening to file criminal charges against him if he refused" (id., referring to Watkins v. Milwaukee County Civil Serv. Comm'n, 88 Wis.2d 411, 276 N.W.2d 775 (1979)) — it makes clear that the test is one of voluntariness.
*fn16 Thus the nomenclature used — whether actual termination or forced retirement or something else — makes no difference. Instead the salient issue is whether Seisser left her employment voluntarily or involuntarily.*fn17

Of course, if Seisser could not demonstrate a genuine issue of fact as to whether she was truly "forced" to retire, summary judgment in Platz' favor would be appropriate. On that score P. Mem. 10 asserts that there was no "element of threat, coercion or duress" even in Seisser's version of her meeting with Thoren. But that conclusory statement draws an impermissible pro-Platz inference from Thoren's saying "no" to Seisser's question whether anything else might be done. To the contrary, a trier of fact could reasonably infer that Thoren's flat "no" answer to the existence of any other options to Seisser's early retirement (her version at her Dep. 47, 49, 53-54) was a take-it-or-leave-it response — inherently coercive.*fn18

Neither Henn, 819 F.2d at 829 nor Brown v. Ameritech Corp., 128 F.3d 605, 606-07 (7th Cir. 1997), cited as authority at P. Mem. 11, undermines Seisser's claim. Those cases are inapposite primarily because each plaintiff there was given a choice of early retirement or continued employment. By contrast, only one "option" was given to Seisser: early retirement.*fn19 At a minimum Seisser has identified a genuine issue of material fact as to whether her disability caused an adverse employment decision.

In Platz' effort to paint itself out of that corner, its P.R. Mem. 5 argues that Thoren's intent to end Seisser's employment by "suggesting" retirement "is unremarkable on its face. . . . [because] [w]hat other possible intention can one have in suggesting early retirement?" That of course ignores the already-stated reasonableness of inferring from Thoren's statement that Seisser was not free to decline that purported "suggestion."

Next P.R. Mem. 6 says that Thoren's marking of "Dismissal" on Seisser's "Termination Report" was "inadvertent[]" and that because Seisser first saw the document during discovery it "can create a material fact in her favor [only if Seisser] is alleging that she was actually fired but did not know about it until over a year later." Wrong. Thoren's self-serving characterization of inadvertence need not be accepted by a factfinding jury, which can view the "Dismissal" entry as shedding light on Thoren's state of mind and as probative of whether Seisser had any choice other than to leave Platz.

Finally, P. Mem. 12 relatedly argues:

As it transpired, Seisser's decision was unfortunate, because if Seisser had simply said `no' when she was asked to retire, this case would not exist. Perhaps Platz would have terminated her. Maybe they would have accommodated her in some other additional fashion. Or something entirely different might have occurred.

But that effort to thrust on Seisser the risk of having to gamble on whether her boss was being serious when he told her she had no option other then to accept early retirement is really outrageous. Platz itself freely admits that she could have been terminated had she not compiled. Even apart from the fact that a factfinder could reasonably have found that "possibility" to be a certainty, given (1) Thoren's testimony that he intended to end Seisser's employment and (2) his having marked "Dismissal" instead of "Resignation" or "Mutual Agreement" on Seisser's "Termination Report," it is really unconscionable to expect any employee to flout what she reasonably viewed as her boss' ultimatum, taking her chances on whether the expected termination might be accompanied by other unpleasant consequences.


When "[t]he record and all reasonable inferences that may be drawn from it are viewed in the light most favorable to" Seisser, as they must be (Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 898 (7th Cir. 2000)), it is an understatement to say that a reasonable juror could conclude that she was forced to retire. That of course poses (at a minimum) a genuine issue of material fact as to the fourth element in the Foster articulation of Seisser's proof requirements (see n. 14), so that Platz's summary judgment motion must be denied. This action is set for a status hearing at 9 a.m. May 18, 2000 to discuss procedures leading to a swift trial.

Indeed, the total unacceptability of Platz' Rule 56 effort — thrusting the burdensome task of LR 56.1 compliance on Seisser's counsel when the existence of such factual issues was so evident*fn20 — that stronger medicine is called for. This was purely and simply a motion that should never have been filed. If when the case goes to trial Seisser were to prove successful, her counsel will be able to recover the cost of that needless expenditure of effort as part of the regular award of fees. But if the ultimate result at trial were to favor Platz, this Court anticipates imposing on Platz the incremental cost of the current bootless Rule 56 motion — the amount by which the total time expended and expenses advanced by Seisser's counsel exceed what would have been incurred and advanced had the case gone directly to trial without being diverted into this Rule 56 dead end.*fn21

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