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March 28, 2003


The opinion of the court was delivered by: Amy J. St. Eve, United States District Judge


Maritza Cruz works for the General Services Adminstration (GSA) as a contract specialist. During the course of her employment, Cruz several times asked GSA to allow her to work at home three days a week because she suffered from intermittent, unpredictable migraine headaches. Cruz's supervisors denied her requests, but offered her several other alternatives to accommodate her illness. None of these alternatives satisfied Cruz, and she sued GSA alleging that it had violated the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., and the Americans with Disabilities Act of 1990 (ADA), § 42 U.S.C. § 12111, et seq. Cruz complains that GSA (1) failed to accommodate her disability when it refused to allow her to work from home; and (2) retaliated against her when she complained about discrimination by transferring her to another position within GSA. GSA moves for summary judgment.

I. Factual Background

Maritza Cruz began working for GSA in November 1977. In September 1995, she became a contract specialist with the Property Management Division of the Contracts Branch of GSA in its Chicago, Illinois, office. As a contract specialist, Cruz negotiated and prepared government contracts with non-government entities, using the Federal Acquisition Regulations as a guide. GSA expected contract specialists to plan the contracting approach, initiate and manage ongoing contracts, communicate as necessary with other Branches within GSA, and resolve problems that arose in the course of contracting.

In 1990 the Chicago Regional Office of GSA implemented the Flexiplace Program. The Flexiplace Program allows GSA employees who meet certain criteria to work from home instead of in the GSA Office. In order to be eligible for the Flexiplace Program, employees must have a job that could be completed at home and obtain their supervisor's consent. GSA directs supervisors to consider the employee's ability to work at home responsibly, the employee's work history, the employee's motivation for working at home, and the employee's leave usage record. In 1994, Cruz first requested to participate in the Flexiplace Program, but her supervisor at the time, Frank Priore, denied the request.

Two years later, Cruz made a second request to participate in the Flexiplace Program. Cruz informed her supervisor, Debbie Bantz, that the stress of commuting to work and caring for her children and her "debilitating migraines" made her less than fully efficient when she was required to work from the GSA office and suggested that her efficiency would be increased if allowed to work from home three days a week. Bantz denied Cruz's request becuase Cruz was new to her position as a contract specialist and needed three years of on-the-job training before Bantz could consider Cruz for the program. In 1998, Cruz made a third request to participate in the Flexiplace Program based on substantially the same reasons as her 1996 request. Cruz's third request was also denied. Her supervisor, Mary Kennedy, informed Cruz that her "pattern of absenteeism and tardiness" were a factor in the denial of her request.*fn1 Kennedy also informed Cruz that "the majority of the regional Contract Specialist duties require the individual to be on-site, to have access to contract files, contract computer programs, and team work. . . ." Kennedy did suggest that if Cruz improved her attendance within the next two months, that Kennedy would consider allowing Cruz to work at home one day per week for a 60-day trial period.

Throughout the four-year period during which Cruz made requests to participate in the Flexiplace Program, GSA explored other alternatives to help Cruz with the problems associated with her long commute, her family concerns, and her difficulty with migraine headaches. For instance, Priore and Bantz met with her in 1996 and discussed whether Cruz wished to take advantage of the Family Medical Leave Act or GSA's Employee Assistance Program or work part-time. In 1997, GSA presented Cruz with the opportunity to start work at a later time. In 1998, GSA discussed with Cruz possibly transferring to the Milwaukee field office, where she might be able to work at home, or to another work team that might reduce Cruz's stress. Cruz refused each of the accommodations offered by GSA.

Instead, on October 16, 1998, Cruz filed a EEO formal complaint alleging that GSA had discriminated against her on the basis of her race. According to Cruz, after she filed the complaint her supervisor's began to retaliate against her by "giving [her] unreasonably short deadlines, scrutinizing her, questioning her veracity, embarrassing her in the presence of her co-workers, treating her like a child, and otherwise harassing her." Cruz amended her EBO complaint to include discrimination based on her disability (that she suffered from debilitating migraine headaches) and a claim that her supervisors retaliated against her for filing the initial EEO complaint. While Cruz's EEO complaint was pending, she made another request to participate in the Flexiplace Program because of the increased frequency of her migraine headaches. GSA denied those requests.

GSA continued to offer Cruz various accommodations. In July 1999, LaVeda Jarrett, GSA's EEC Counselor, offered to transfer Cruz to another Branch within GSA so that she would no longer work for the supervisors who allegedly harassed her. GSA also offered to assign Cruz to the Property Development Division to remove her from the allegedly "hostile working environment." Cruz denied the offers to transfer because she believed that the assignment would not allow her to work at home. In August 1999, Kennedy offered to allow Cruz to work at home three days per week, but from the Milwaukee field office. Cruz refused the offer because she did not wish to drive to Milwaukee because she might experience migraine headaches while driving. In September 1999, GSA involuntarily transferred Cruz to the Property Management Division, for a trial period. The transfer became permanent in September 2000. In November 2001, Cruz's supervisors in the Property Development Division allowed her to begin working at home three days a week under the Flexiplace Program. After the EEOC issued in part a reversal of GSA's final decision of Cruz's EEO complaint, Cruz filed this complaint and GSA now moves for summary judgment.

II. Standard of Review

Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts and inferences are viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the use of self-serving assertions, without factual support in the record, will not defeat a motion for summary judgment. James v. Sheahan, 137 F.3d 1003, 1006 (7th Cir. 1998). Instead, the party opposing summary judgment must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. Where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," there can be no genuine issue as to any material fact. Celotex, 477 U.S. at 322-23.

III. Analysis

Cruz's complaint is confusing. Cruz alleges an independent claim that GSA intentionally discriminated against her because she was "regarded as being mentally ill." But being regarded as having a disability only demonstrates that Cruz is an individual with a disability for the purposes of the ADA, not that she suffered discrimination. See 42 U.S.C. § 12102 (2). The ADA provides that the term "discriminate" includes not only the disparate treatment of an employee because of that disability but also the failure to make reasonable accommodations to the physical or mental limitations of an otherwise qualified individual. See 42 U.S.C. § 12112 (b)(5)(A); Rauen v. United States Tobacco Mfg. Ltd., 319 F.3d 891, 895-96 (7th Cir. 2003); Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1283 (7th Cir. 1996). A failure to accommodate claim is separate and distinct from a claim of disparate treatment under the ADA. Green v. National Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir. 1999); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). Cruz fails to allege any disparate treatment in connection with her claim that GSA regarded her disabled, other than its failure to accommodate her disability by allowing her to work at home. Thus the Court will treat ...

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