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March 28, 2003


The opinion of the court was delivered by: William T. Hart, United States District Judge


Plaintiff Jacquelyn Dodaro is a former employee of defendant Village of Glendale Heights, Illinois. From November 1997 until August 2000, plaintiff was employed as the Office Technician in defendant's Public Relations Department. During her employment, plaintiff had a substantial number of absences. In June 2000, plaintiff was first diagnosed as having Meniere's Disease, a condition which causes symptoms of imbalance and dizziness as a result of too much fluid in the inner ear. In Count I of her complaint, plaintiff alleges that a 10-day suspension in June 2000 was in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., in that defendant discriminated against plaintiff because of her disability and failed to provide her with a reasonable accommodation. In Count II, plaintiff alleges her discharge also violated the anti-discrimination and reasonable accommodation provisions of the ADA. In Count III, plaintiff claims she was denied leave in violation of the Family and Medical Leave Act ("FMLA")r 29 U.S.C. § 2601 et seq., and wrongfully discharged in violation of the FMLA. Presently pending is defendant's motion for summary judgment as to all counts. Defendant contends any ADA claim should be limited to a reasonable accommodation claim because plaintiff failed to adequately raise an ADA discrimination claim before the EEOC. As to any ADA claim that is properly preserved, defendant contends the claim should be dismissed because plaintiff cannot show she was a "qualified individual," with or without an accommodation. As to the FMLA claim, defendant contends that plaintiff had already used her permitted FMLA leave for a 12-month period at the time she requested additional leave in May 2000.

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002); Hilt-Dyson v. City of Chicaqo, 282 F.3d 456, 462 (7th Cir.), cert. denied, 123 S.Ct. 97 (2002); Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001); Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Billings v. Madison Metropolitan School District, 259 F.3d 807, 812 (7th Cir. 2001). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Patholoaists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852 (1988). As the Seventh Circuit has summarized:

The party moving for summary judgment carries the initial burden of production to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be `material.'" Logan, 96 F.3d at 978. "Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether the nonmovant has identified a "material" issue of fact for trial, we are guided by the applicable substantive law; "[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is "genuine" for summary judgment purposes only when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a "metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and "the nonmovant fails to demonstrate a genuine issue for trial `where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. . . .'" Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Outlaw, 259 F.3d at 837.

Resolving all genuine disputes and drawing all reasonable inferences in plaintiff's favor, the facts assumed to be true for purposes of ruling on defendant's motion for summary judgment are as follows. In November 1997, plaintiff was hired as a part-time Office Technician in defendant's Public Relations Department. At the time she was hired, plaintiff did not indicate that she had any special health needs. Also, plaintiff was provided a copy of defendant's Employee Manual*fn1 which she read. As to the FMLA, the Employee Manual states that an employee is entitled to leave of absence without pay in accordance with the terms of the FMLA.

On February 20, 1998, plaintiff began working full-time. The Public Relations Department is responsible for disseminating information about Village departments and events. The only other employee in the Department was plaintiff's supervisor, Gina Thorson. On some occasions, Office Technicians from other departments would provide assistance. The parties agree that the essential functions and duties of the position "include: (a) inputting information into the Village's character generator to be broadcast over cable and government access channels, (b) putting together and distributing the Village's newsletters, (c) generating press releases, (d) putting up information on the Village's marquees, (e) programming the Village's videotape playback system, (f) inputting information into the Village's THE financial system, (g) archiving photographs and videos from Village events, (h) answering phone calls from the public to the Public Relations Department regarding Village services, policies, or events, and (i) receiving the public and answering questions at the front desk." The position necessitates working with employees of other departments in order to gather information. Sometimes, information must be disseminated on a sudden and unexpected basis. Some of the equipment that must be used is located only at the Village Hall.

Paid benefits of defendant's employees include vacation days, floating holidays, and sick days. An employee may also apply for leave of absence without pay which would constitute an authorized absence. From February 20, 1998 until the end of the calendar year, plaintiff was absent from work 221.5 hours.*fn2 At least 56 of those hours were covered by paid benefits. In calendar year 1999, plaintiff was absent from work approximately 590.75 hours, of which approximately 120 hours were covered by paid benefits and approximately 472 hours were unpaid FMLA leave.*fn3 In September 1999, plaintiff applied for 12 weeks of FMLA leave because of a back injury*fn4 and an ovarian tumor. Plaintiff was on approved FMLA leave from August 17, 1999 to November 9, 1999. From January 1. through May 31, 2000, plaintiff was absent 132.5 hours. At least 92.5 of those hours were covered by paid benefits and plaintiff had available vacation time that could have covered the remainder. On May 31, 2000, plaintiff requested FMLA leave. Plaintiff was permitted to use her vacation time to cover further absences through June 8. Plaintiff requested an unpaid leave of absence for a time period after June 8, but that request was denied. Defendant considered all the time off after June 8 to be unauthorized leave. Plaintiff did not return to work after the May 31 episode and was eventually discharged effective August 18, 2000.

On May 1, 1998, plaintiff received a performance evaluation from her supervisor. An issue was raised as to plaintiff's absences, which plaintiff acknowledged and she also agreed an improvement in her attendance was necessary. In her November 1998, February 1999, and February 2000 evaluations, plaintiff's absences were also raised as an issue.

In February 2000, plaintiff sought to transfer to an Office Technician position in the Finance Department. At her deposition, plaintiff stated that she sought this transfer in order to get away from the stress and abuse of working for Thorson. Due to her history of absenteeism, the transfer request was denied.

On May 31, 2000, while at work, plaintiff had an episode of imbalance and dizziness and was taken away in an ambulance. Plaintiff requested that her remaining vacation time be used and it was applied until exhausted on June 8, 2000. At least for purposes of summary judgment, defendant does not dispute that, before leaving on May 31, plaintiff requested unpaid FMLA leave. The FMLA leave request was denied on the ground that plaintiff had already used 12 weeks of such leave within the preceding 12 months.

Dr. Sam Marzo was plaintiff's primary treating physician for her Meniere's Disease. When Dr. Marzo first examined plaintiff on June 12, 2000, he concluded she had an imbalance/dizziness problem that was caused by Vestibular Neuronitis, Meniere' s Disease, or Perilymphatic Fistula. Dr. Marzo also concluded plaintiff was indefinitely unable to work because she was being treated with Valium. Dr. Marzo considered it unsafe to work while on Valium because a person could not drive to work or operate machinery, and also because plaintiff was at risk of falling if she had to use any stairs or could fall walking in the office. On June 22, 2000, Dr. Marzo concluded that the cause of plaintiff's problem was Meniere's Disease. He continued to express the same view regarding her ability to work. In a letter dated June 26, 2000, Dr. Marzo informed the village that plaintiff had a "balance problem" and he recommended that she not work until her balance recovers.

Sometime between June 8 and June 22, 2000, Thorson determined that plaintiff should be suspended because of her then being on unauthorized leave and because of her past history of absenteeism. Effective June 22, 2000, plaintiff was suspended for 10 days. plaintiff contends she was not on unauthorized leave at the time because defendant's Personnel Policies Manual provides that "[e]mployees on IMRF Illinois Municipal Retirement Fund) disability pension or other disability are not classified as being on leave of absence" and therefore cannot be on unauthorized leave. However, although plaintiff's IMRF disability benefits were effective June 1, 2000, plaintiff was not awarded those benefits until after she was discharged. It was not until approximately July 6, 2000 that defendant first learned plaintiff had even applied for IMRF disability. Plaintiff also points to being awarded disability benefits through her second job that were effective June 11, 2000. Again, there is no evidence that plaintiff had applied for these benefits as of the date the suspension decision was made and the actual disability award was apparently made after the suspension occurred. Also, defendant was unaware of these disability benefits until after plaintiff was discharged. Additionally, although the Personnel Policy Manual does not expressly define "other disability", defendant's Human Resources Director states that the term "other disability" as used in the above quoted passage refers to "employee" disability benefits, which means benefits from being an employee of defendant, not disability benefits through another employer. She represents that "other disability" is meant to refer to disability benefits available to other Village employees, for example, police officers, who are covered by plans other than the IMRF disability plan.

For at least two to three months after May 31, 2000, plaintiff could not manage her household affairs, she had dizziness spells that sometimes lasted for hours, and she fell down on a couple occasions. By July or August, plaintiff's equilibrium had improved some so that, in her words, she was "walking like a little drunk person." She could not focus enough to cross-stitch and half the time did not answer the telephone because her speech was slurred. She could "watch some TV," but was "basically . . . a vegetable." At her August 14, 2000 appointment with Dr. Marzo, plaintiff's condition was worse than it had been during her June appointments. Dr. Marzo continued to opine that plaintiff should remain off work indefinitely. At her September 11, 2000 appointment, plaintiff was in the same condition as in June and Dr. Marzo continued to opine that she be off work indefinitely. Following monthly examinations through mid-February 2001, Dr. Marzo continued to opine that plaintiff was unable to work. On February 28, 2001, plaintiff had inner ear surgery in an attempt to correct the problem. No evidence is presented regarding plaintiff's condition following surgery.

Plaintiff characterizes four requests that she made as requests for accommodations. Th February 2000, she requested a transfer to a different Office Technician position. In early June 2000, plaintiff requested being able to work in a wheelchair, work at ...

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