United States District Court, Central District of Illinois, Springfield Division
September 30, 2002
TRACY L. ATTEBERRY, PLAINTIFF,
THE DEPARTMENT OF STATE POLICE, SUE JANSKY, KENNETH HALL AND JAMES HOWELL, DEFENDANTS.
The opinion of the court was delivered by: Mills, District Judge
An employee experiencing a medical condition without medical
restrictions is not similarly situated to an employee experiencing a
medical condition with medical restrictions.
In 1999, Tracy L. Atteberry, f/k/a Tracy L. Garrett, requested to work
light duty during her healthy pregnancy. Because her employer, the
Illinois State Police (ISP), failed to provide light duty detail to
Plaintiff everyday, she sued claiming she was discriminated against based
on sex and pregnancy in violation of 42 U.S.C. § 2000(e), et seq.
(Title VII). She claims similarly situated employees were provided light
duty everyday. Plaintiff also alleges that the ISP retaliated against
her, in violation of Title VII, because she reported the discrimination
to the ISP's EEO office and Plaintiff's collective bargaining
representative. Lastly, Plaintiff claims two of her superiors, Suzanne
Jansky and Kenneth Hall, violated 42 U.S.C. § 1983 and the Fourteenth
Amendment's Equal Protection clause by treating her differently than
other similarly situated male employees.*fn1
The Court concludes Plaintiff's retaliation claim is legally
insufficient. As to her discrimination claims, she has failed to prove
she was similarly situated to any other employee given light duty. While
Plaintiff was experiencing a medical condition, her condition resulted in
no medically-based restrictions. Unlike her fellow employees who were
physically incapable of performing some aspects of their jobs, Plaintiff's
request for light duty was not based on any inability to carry out her
duties. Plaintiff has not proven she was treated worse than any other
employee who experienced a medical condition without medical
restrictions. Therefore, Defendants' Motion for Summary Judgment is
In April 1999, Plaintiff informed her superiors that she was pregnant.
On April 22, 1999, Dr. George J. O'Neill, Plaintiff's
obstetrician-gynecologist, drafted a letter that was forwarded to
Lieutenant Suzanne Jansky. The letter stated:
To Whom It May Concern:
Tracy Garrett is an obstetrical patient of mine. Her
EDC is 11/29/99. She is to have light duties. She is
not to carry a gun belt or do patrol work. She is to
have a sedentary job until 6-8 weeks post-partum.
On April 23, 1999, Jansky informed Plaintiff that no light duty was
available. On April 24, 1999, Plaintiff contacted the ISP's EEO office
and her collective bargaining representative to report this alleged
discrimination.*fn2 On May 6, 1999, a second letter written by Dr.
O'Neill was given to Plaintiff's superiors. It stated:
To Whom it May Concern:
Tracy Garrett is an obstetrical patient of mine. Her
EDC is 11/29/99. She is not to carry her gun belt or
do patrol work. She is to have light duties. She may
carry her gun. She may work where there is a restroom
available. She may do truck inspections,
investigations, she can walk and write tickets and do
Plaintiff alleges that despite this letter, she was physically capable of
performing numerous functions with the ISP. Plaintiff claims she was
discriminated against by Defendants when she was denied the opportunity
to work available duties within her physical disability, denied training
opportunities and required to use personal days, vacation days, holidays
and sick time rather than work.*fn3 Plaintiff alleges that other
employees who requested light duty were allowed to work and/or allowed to
attend training and were not required to use personal time.
Plaintiff alleges after the ISP received her doctor's letters, she was
forced to use 46 "500 time days." Defendants assert Plaintiff was
provided 42 days of medical duty work status from May 5, 1999 to August
29, 1999 and only used 12 days of sick time. Plaintiff was assigned to
the Illinois State Police Academy on August 30, 1999 where she worked
until she gave birth to her child on November 16, 1999.
To prevail on a motion for summary judgment, a defendant must prove
that 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). See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). No genuine issue of
material fact exists when a rational trier of fact could not find for the
nonmoving party even when the record as a whole is viewed in the light
most favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, a party may
not rest upon pleadings to oppose a motion for summary judgment and must
set forth specific facts showing that there is a genuine issue of
material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). "The mere existence of a scintilla of evidence in support of
the plaintiff's position will be insufficient; there must be evidence on
which the jury could
reasonably find for the plaintiff." Liberty Lobby, 477 U.S. at 252.
A. Sex and Pregnancy Discrimination
Title VII makes it "an unlawful employment practice for an employer to
fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a). To prevail
under the McDonnell Douglas burden shifting method, a plaintiff must show
that (1) she was a member of a protected class; (2) she performed her job
satisfactorily; (3) she suffered an adverse employment action; and (4)
her employer treated similarly situated males more favorably. See
McDonnell Douglas v. Green, 411 U.S. 792 (1973); Cheek v. Peabody Coal
Co., 97 F.3d 200, 204 (7th Cir. 1996).
In 1978, Congress amended Title VII to extend protection to pregnant
women: "[w]omen affected by pregnancy, childbirth or related medical
conditions shall be treated the same for all employment-related purposes
. . . as other persons not so affected but similar in their ability or
inability to work. . . ." 42 U.S.C. § 2000e(k). The Pregnancy
Discrimination Act (PDA) was specifically designed to address the
stereotype that "women are less desirable employees because they are
liable to become pregnant," Sheehan v. Donlen Corp., 173 F.3d 1039, 1045
(7th Cir. 1999), and to insure that the decision whether to work while
pregnant "was reserved for each individual woman to make for herself."
International Union, United Auto. Workers v. Johnson Controls, Inc.,
499 U.S. 187, 206 (1991). Nonetheless, employers are not required to give
pregnant women special treatment; they must only treat them the same as
all other employees. See, e.g., Kennedy v. Schoenberg, Fisher &
Newman, Ltd., 140 F.3d 716, 722 (7th Cir. 1998), cert. denied, 525 U.S. 870
(1998); Troupe v. May Dept. Stores Co., 20 F.3d 734, 738 (7th Cir.
1994). The PDA "does not impose an affirmative obligation on employers
to offer maternity leave or to take other steps to assist pregnant
workers, but it does require the employer to treat the employee as well
as it would have if she were not pregnant." Piraino v. International
Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996).
To prevail on a pregnancy discrimination claim, a plaintiff "must show
that she was treated differently because of her pregnancy." Geier v.
Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996); see also Marshall v.
American Hosp. Ass'n, 157 F.3d 520, 525 (7th Cir. 1998). "An unlawful
employment practice occurs whenever pregnancy is a motivating factor for
an adverse employment decision." Hunt-Golliday v. Metropolitan Water
Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1010 (7th Cir.
To prove a prima facie case of pregnancy discrimination, a plaintiff
must prove the following: (1) she was pregnant; (2) she was performing
her duties satisfactorily; (3) she suffered an adverse employment
action; and (4) similarly situated employees not in the protected class
were treated more favorably. See McDonnell Douglas, 411 U.S. at 802;
Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1154-1155 (7th Cir. 1997).
In order to establish a prima facie case of a violation of equal
protection rights pursuant to § 1983, a plaintiff must establish
that: (1) she is a member of a protected class; (2) she is similarly
situated to members of the unprotected class; (3) she was treated
members of the unprotected class; and (4) the defendant
acted with discriminatory intent. Johnson v. City of Fort Wayne, Ind.,
91 F.3d 922, 944-945 (7th Cir. 1996); McNabola v. Chicago Transit
Authority, 10 F.3d 501
, 513 (7th Cir. 1993).
The common thread woven through all of Plaintiff's claims is the
requirement that she show she was treated differently than other
similarly situated, non-pregnant and/or male employees. Who is similarly
situated to Plaintiff? She claims Debbie Schroder, William Long, Ed
Buescher, and David Diller were similarly situated to her but treated
Ms. Schroder was placed on light duty due to a broken arm, spinal
surgery, and vocal cord surgery. Mr. Long was placed on light duty due
to complications of his post-polio condition. Mr. Buescher suffered from
a brain tumor that caused damage to his nerves and loss of muscle control
of one side of his body. Mr. Diller was placed on light duty following
Each of these individuals experienced medical conditions which resulted
in medical-based restrictions. They were incapacitated in some way due
to their various ailments. There has been no evidence presented to this
Court that Plaintiff was similarly incapacitated. Dr. O'Neill testified
at length that Plaintiff's pregnancy did not interfere with her ability
to perform her duties. Rather, he requested Plaintiff be placed on light
duty because, in his opinion, Plaintiff's job was too dangerous to
perform while pregnant — not because Plaintiff was physically
incapable of performing her job.
Dr. O'Neill: I think it's common-sensical that a
pregnant woman shouldn't be put in a position where
not only her own life is one thing, but the life of an
unborn child shouldn't be put at risk by her job
duties, and that's why that letter was prepared.
Defendants' Attorney William Jarvis: Do you put all of
your patients at that early stage in the pregnancy in
O'Neill: Well, my professional opinion, life begins
at conception, so the answer to that is
yes, if there's a need for it. But light
duty in any other job profession doesn't
incur the possibility of being shot, beat,
God knows what else, particularly if you're
on a patrol. I mean, people, officers get
killed on duty. I mean, it's a perilous
job that you do. . . . But this is a very
unique job. I mean, this is a job where
your life is in jeopardy every day you go
out in a squad car. And to put an unborn
child at that risk is, I think, morally
reprehensible, as far as I'm concerned.
Jarvis: And you did put definite restrictions about
[the] gun belt, and I take it that has
something to do with the weight?
O'Neill: Absolutely not. It's just to imply she's
not to be on duty. You know, a patrol
officer who is not carrying a gun is not
going to be in a situation where her life
is in jeopardy a few times a day.
Jarvis: And what prompted you to prepare Exhibit 3
[O'Neill's May 6, 1999 letter], if you can
O'Neill: This probably was at the patient's behest,
trying to do something so she could
continue with her job but in no way
jeopardize her child. And, you know,
granted I, you know, this is a first time
for me as a doctor to have to deal with
this. And the request is strictly tailored
to the idea in mind if a duty was available
for her to perform that would not allow her
to be at
jeopardy as far as somebody
pulling a gun on her or shooting her, in
dealing with the criminal element.
Obviously, there's a lot of things [that]
could be done. I think we just tried to
tailor the letter, and if I recall, it's
been three years ago, I think Tracy came
back and said I need something a little
more explicit. It was mainly — I
mean, I actually was probably somewhat
overbearing as a gynecologist saying you
can't put your baby's life at jeopardy and
I think we agreed on that after discussing
it. And this was an endeavor just to draw
some limits so that her supervisor could
find a place for her to work.
And in no way did this — any of this
have anything to do with physical
activities, at least early in her
pregnancy. I don't have a problem with
somebody doing something that requires
physical effort. It was not that. It was
strictly the situation that some loose guy
or individual is going to pull a gun on
her, shoot her, or she's going to be bodily
harmed in some way because she's exposed to
some risk. And when you pull somebody
over, and you know that, you never know
what to expect.
There is no dispute that Dr. O'Neill requested Plaintiff be placed on
light duty and removed from patrol in an effort to protect Plaintiff and
her unborn child from the risks inherent in police work. While Dr.
O'Neill's recommendation is understandable, it is not medical and is not
based on Plaintiff's physical inability to perform her job while
Therefore, this Court finds Plaintiff experienced a medical condition
without medical restrictions. She was pregnant, but there is no evidence
she was physically affected by her pregnancy in a way that prevented her
from performing the duties of her profession.*fn4 Plaintiff has
presented no testimony that she was treated less favorably than any
employees at the ISP who experienced medical conditions without medical
restrictions. In addition, there is no evidence that Schroder, Long,
Buescher, and Diller would fall into that category. As such, Plaintiff
has failed to prove an element necessary to her discrimination claims
under Title VII and § 1983. Defendants' Motion for Summary Judgment
is allowed as to Counts I and III.
Plaintiff also alleges she was retaliated against for reporting ISP's
actions to the ISP's EEO office and to her collective bargaining
representative. Plaintiff claims two adverse employment actions were
taken against her as a result of engaging in statutorily protected
expression: Plaintiff (1) was counseled and berated by the District
Commander, Ken Hall; and (2) received a negative evaluation from her
Title VII makes it an "unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter."
42 U.S.C. § 2000e-3. "Title VII's retaliation provisions make it
unlawful to `discriminate' against an employee because he has made a
charge of discrimination. Common sense and the examples used in the
statute's principal section, 42 U.S.C. § 2000e-2(a), exclude
instances of different treatment that have little or no effect on an
employee's job." Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998).
Instead, § 2000e-2(a) makes it unlawful:
to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment . . . or to
limit, segregate or classify his employees . . . in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee. . . .
42 U.S.C. § 2000e-2(a). To present a prima facie case of
retaliation, Plaintiff must demonstrate that: (1) she engaged in
statutorily protected expression; (2) she suffered an adverse action; and
(3) there was a causal link between the protected expression and the
adverse action. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1117
(7th Cir. 2001).
In early May, Plaintiff met with Captain Ken Hall. Plaintiff claims
she was "counseled and berated" by Hall during this meeting when he
stated he was concerned with her decision-making, that she had made poor
choices, that this was the second time her personal life had affected her
work, and that she was to discontinue using her new squad car. Plaintiff
does not allege she was actually disciplined by Hall.
On July 12, 1999, Plaintiff received a negative "Promotional Skills
Evaluation" from Master Sergeant J.K. Howell. On a scale of 1-10, the
highest score Plaintiff received was a 5. In the Evaluation's
narrative, Howell stated Plaintiff was unable to write clear and concise
incident descriptions. In addition, Plaintiff exhibited an inability to
listen and comprehend the description of an event or observation and to
convey those facts effectively.
The question for the Court to decide is whether the ISP's actions rise
to the level of adverse employment actions and are prohibited by Title
In Smart v. Ball State University, the Seventh Circuit held that a
negative performance evaluation was not an adverse employment action.
Smart, 89 F.3d 437, 442 (7th Cir. 1996). In Sweeney, the Seventh Circuit
decided counseling statements or reprimands, without further discipline,
were not adverse employment actions, stating, "[t]his circuit already has
concluded that negative performance evaluations, standing alone, cannot
constitute an adverse employment action." Id.; see Smart, 89 F.3d at
442. "The counseling statements are similar to negative performance
evaluations, and arguably less significant." Sweeney, 149 F.3d at 557.
"Absent some tangible job consequence accompanying those reprimands, we
decline to broaden the definition of adverse employment action to include
[counseling statements]." Id. at 556; see Grube v. Lau Industries,
Inc., 257 F.3d 723, 729 (7th Cir. 2001) (holding that unfair reprimands
or negative performance evaluations, unaccompanied by some tangible job
consequence, do not constitute adverse employment actions).
Plaintiff presented no evidence the counseling or negative performance
evaluation was accompanied by any tangible job consequence. Therefore,
clear-cut guidance from the Seventh Circuit dictates Plaintiff's
claim of retaliation, based on one negative evaluation and one counseling
or reprimand, must fail.
Ergo, Defendants' Motion for Summary Judgment is ALLOWED.