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July 19, 2001


The opinion of the court was delivered by: Keys, United States Magistrate Judge.


This matter is before the Court on Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Stella Bond sued Defendant Michael Sheahan, in his official capacity as Sheriff of Cook County, for disability discrimination under the Americans with Disabilities Act ("ADA" or "Act"), 42 U.S.C. § 12101 et seq. (West 2001). For the reasons set forth below, the Court denies Defendant's Motion.


This controversy arises out of Defendant's alleged failure to reasonably accommodate Ms. Bond's asthma. Defendant contends that Plaintiff is not protected by the ADA, because she is not a "qualified individual with a disability", as defined by the Act. Defendant further asserts that, even if Ms. Bond were covered by the ADA, Defendant accommodated Ms. Bond's asthma by re-assigning her to a smoke-free workplace, and by enacting non-smoking policies throughout the Cook County Department of Corrections ("CCDOC"). Plaintiff counters that she is a "qualified individual with a disability", and that Defendant did not, in fact, reasonably accommodate her disability. Plaintiff also contends that she was constructively discharged from her position at the CCDOC, because of Defendant's failure to reasonably accommodate her disability.

Ms. Bond began working as a correctional officer for the Cook County Sheriff's Department at the CCDOC on February 1, 1978, and continued in that capacity until her resignation on February 28, 1998. (Defendant's Statement of Uncontested Facts ["Def.'s SUF"] ¶ 2.) During the course of her employment, Plaintiff received performance reviews indicating that she was competent in all job areas, and maintained a satisfactory attendance record, often carrying more than thirty days of unused medical time off. (Def.'s SUF ¶¶ 4-5; Def.'s SUF Ex. 2a-f.)

Prior to 1989, Ms. Bond, apparently, had no recorded health problems, and had not made any complaints about her work environment. However, in December 1989, Plaintiff suffered a pulmonary embolism, forcing her to miss several weeks of work in order to fully recuperate. (Def.'s SUF ¶ 8.) After returning to work, Ms. Bond began complaining to her union steward (Yvonne Taylor), supervisors, co-workers, and various state agencies about the presence of secondhand tobacco smoke at the CCDOC. (See Plaintiff's Response to Defendant's Local Rule 56.1(a)(3) Statement of Facts and Plaintiff's Local Rule 56.1(b)(3)(B) Statement of Additional Facts ["Pl.'s Resp."], Ex. 1 at 104-105; Ex. 8; Ex. 10; Ex. 11 at 29; and Ex. 12 at 17-18.)

In December 1992, a physician from Humana Health Care Plans wrote a "To Whom It May Concern" letter, recommending that Ms. Bond "should be completely in a non-smoking environment" (Def.'s SUF Ex. 22). Defendant allegedly accommodated this request, on May 11, 1993 (more than five months after the doctor's letter), by administratively transferring Ms. Bond from her position in the records department in Division V to Division VIII.*fn1 (Def.'s SUF ¶ 23.) Plaintiff remained in Division VIII for only six months, and returned to Division V after successfully grieving her transfer on the grounds that she was not eligible for overtime pay in Division VIII. (Def.'s SUF ¶ 24.) Upon her return to the records department in Division V, Ms. Bond was assigned to the midnight shift, where Defendant believed "there would be fewer people, and therefore less people smoking." (Def.'s SUF ¶ 25; Memorandum in Support of Defendant's Motion For Summary Judgment ["Def.'s Memo"] at 15.) Three months later, Ms. Bond bid into the day shift in classifications, another department in Division V. (Def.'s SUF ¶ 26.) Plaintiff continued working in classifications for nearly five years before resigning from the CCDOC in February 1998. (Def.'s SUF ¶ 26.)

Although the parties dispute what steps Defendant took to accommodate Ms. Bond, it is undisputed that the Sheriff's Department codified its 1990 smoking policy, which prohibited smoking in all but designated areas, by enacting General Order 1.16 on July 1, 1993. (Def.'s SUF ¶ 30.) However, smoking continued in all areas of the CCDOC despite the enactment of this General Order. Specifically, the Illinois Department of Labor ("IDOL"), in response to Ms. Bond's initial complaint, inspected the CCDOC on March 24, 1994, and determined that the CCDOC's smoking policy was not being enforced, in violation of the Illinois Clean Air Act and the City of Chicago Municipal Code 192-20. (Pl.'s Resp. Ex. 14.) After waiting another year for the CCDOC to comply with its own smoking policy, Ms. Bond filed a second complaint with IDOL on March 9, 1995, explaining that the CCDOC's smoking policy was still not being enforced. (Pl.'s Resp. Ex. 8.)

On March 27, 1995, Ms. Bond was diagnosed as having "mild persistent" asthma.*fn2 (Pl.'s Resp. ¶ 11.) Plaintiff's treating physician, Dr. Thelma Evans, initially prescribed Ms. Bond one albuterol inhaler for treatment (Def.'s SUF ¶ 12), and later, on July 13, 1995, directed her to avoid cigarette smoke, since it is one of several irritants known to aggravate a person's asthma.*fn3 (Pl.'s Resp. ¶ 50; Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 36.) After learning that Ms. Bond was exposed to environmental tobacco smoke everyday at the CCDOC, Dr. Evans wrote a "To Whom It May Concern" letter to Ms. Bond's employer on January 18, 1996, explaining that Plaintiff's "asthma is aggravated by constant exposure to tobacco smoke in her work environment." (Def.'s SUF Ex. 23.)

Apparently, in response to Ms. Bond's complaints, Division V Superintendent Dennis Drahos issued a "new" smoking policy on July 1, 1996,*fn4 which established procedures for both the smoking and non-smoking areas in Division V.*fn5 (Def.'s SUF ¶ 33.) John Maul, Assistant Executive Director at the CCDOC, explained that supervisors could impose progressive disciplinary sanctions upon employees violating the smoking policy, commencing with counseling, continuing through suspension, and ending in termination for chronic offenders. (Def.'s SUF ¶ 34.) Mr. Maul further stated that, since General Order 1.16's inception, he has issued verbal warnings to approximately one dozen employees, but has never given written reprimands or issued counseling forms to any employees. (Pl.'s Resp. ¶ 34.)

Despite this "new" smoking policy, some individuals continued to smoke where Ms. Bond worked. On February 28, 1997, the University of Illinois at Chicago conducted an evaluation of the indoor air quality rates at the CCDOC. (Pl.'s Resp. Ex. 5.) The Cermak Health Clinic at the CCDOC requested this evaluation because "there had been concerns and complaints about the air quality from medical staff and corrections officers working in the area." (Pl.'s Resp. Ex. 5 at p. 2.) While the report found the overall supply rates to be generally adequate for the facility, it suggested means by which the air quality could be improved, including "limit smoking in the areas completely, or at least to specific areas and/or cells which have good exhaust immediately adjacent to them."*fn6 (Pl.'s Resp. Ex. 5 at p. 12.)

Between May 29 and June 16, 1997, Plaintiff missed work, as explained in the Return to Work form completed by Dr. Evans, due to "exacerbation of asthma."*fn7 (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 77; Def.'s SUF Ex. 20.) On July 1, 1997, Dr. Evans wrote a second "To Whom It May Concern" letter, indicating that Ms. Bond's "respiratory problems are aggravated by exposure to cigarette smoke, dust, fumes, and exposure to extremes of temperature and humidity." (Def.'s SUF Ex. 24.) According to Ms. Bond, although she gave the July 1st letter to her supervisor, Lieutenant Kurtevich, as well as the Personnel Department, she received no response. (Pl.'s Resp. ¶¶ 63-64.) Dr. Evans then wrote a third, and final, "To Whom It May Concern" letter on October 3, 1997, requesting that Ms. Bond be given a parking space close to her worksite, since her asthma was affected by dust and wind.*fn8 (Def.'s SUF ¶ 36.) While these letters indicated a number of possible irritants of Ms. Bond's asthma, Dr. Evans stated that she believed cigarette smoke was "the only thing that consistently seemed to aggravate [Ms. Bond's asthma]." (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 49.) Dr. Evans also stated that, depending on the presence of certain irritants in the workplace, many asthmatics can continue working with the aid of medication.*fn9 (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 53.)

After 1995, Ms. Bond's asthma became "slightly worse," requiring Dr. Evans to increase Plaintiff's prescription from one inhaler to three, and to add a home nebulizer and intermittent courses of Prednisone to her treatment. (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 100.) In Dr. Evans' deposition, which was taken on November 13, 1999, she stated that, a year ago (when Ms. Bond was not working at the CCDOC), her asthma was "controlled"*fn10 (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 100), but that Ms. Bond still experienced occasional flare-ups of her asthma, despite the absence of cigarette smoke from her daily environment. (Def.'s SUF ¶ 42.)

Effective February 28, 1998, Ms. Bond resigned from the CCDOC. (Def.'s SUF ¶ 3.) Plaintiff asserts that her resignation was not voluntary; rather, she claims that Defendant forced her to retire as a direct result of the negative effects of her working conditions on her health. (Pl.'s Resp. ¶ 3.) Defendant rejects this contention, explaining that Ms. Bond's exit interview form reflects "retirement" as the sole reason for her resignation. (Def.'s SUF ¶ 3.) Plaintiff explains that she merely signed and dated the exit interview form, and did not herself write down "retirement" as a reason for her leaving. (Pl.'s Resp. Ex. 2, Bond Aff. ¶ 1.) Ms. Bond acknowledges that she has not actively sought employment since her resignation in 1998. (Def.'s SUF Ex. 10, Bond Dep. at 16.) She worked for Defendant for exactly twenty years.


Ms. Bond filed a Charge with the Equal Employment Opportunity Commission ("EEOC") on October 27, 1995, alleging disability discrimination. On December 30, 1998, Ms. Bond received a right to sue letter from the EEOC. Ms. Bond timely filed this lawsuit, alleging disability discrimination in violation of the ADA, in federal court on March 23, 1999. Defendant filed its Motion for Summary Judgment on March 30, 2001.


I. Summary Judgment Standard of Review

The Federal Rules of Civil Procedure endorse motions for summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When confronted with a motion for summary judgment, the nonmovant may not rest upon its pleading, but must present specific facts demonstrating that a genuine issue for trial exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This requires the party opposing summary judgment to do more than show that "there is 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). Summary judgment must be denied if the parties dispute facts that, under governing law, might affect the result of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The Court construes all facts and draws all reasonable inferences therefrom in the light most favorable to the nonmoving party when ruling on a motion for summary judgment. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Furthermore, it is the jury, not the court, that determines credibility, weighs evidence, and draws all reasonable inferences from the facts. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Since credibility and intent are pivotal issues in the case sub judice, as in most employment discrimination cases, this standard is applied with added rigor to the present facts. Schmidt v. Methodist Hosp. of Ind., Inc., 89 F.3d 342, 344 (7th Cir. 1996).

II. Americans with Disabilities Act Claim

Plaintiff claims that Defendant discriminated against her, in violation of the ADA, by constructively discharging her because of her asthma, a condition that is allegedly aggravated by environmental tobacco smoke, and by not offering her a reasonable accommodation. As will be discussed infra, the Court finds that genuine issues of material fact exist concerning whether Ms. Bond was "disabled" for purposes of the ADA, was a "qualified individual" ...

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