United States District Court, Northern District of Illinois, Eastern Division
May 9, 2000
MARY L. SEISSER, PLAINTIFF,
PLATZ FLOWERS AND SUPPLY, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
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
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.
In May 1996 Seisser again asked that Thoren allow DORS or some
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. ¶
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.
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
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
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
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
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
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
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
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
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