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GREENMAN v. CAREMARK

September 27, 2004.

SCOTT GREENMAN, Plaintiff
v.
CAREMARK, INC., Defendant.



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Scott Greenman has sued his former employer, Caremark, Inc., alleging that defendant first subjected him to a hostile work environment because of a disability, retaliated against him for complaining, and ultimately terminated his employment in violation of the Americans with Disabilities Act ("ADA") 42 U.S.C. § 12101 et seq. Defendant has moved for summary judgment on all claims. For the reasons set forth below, defendant's motion is granted.

FACTS

  Plaintiff was employed by defendant in its Information Technology Group ("IT") in its Bannockburn, Illinois facility from August 21, 2000, until his termination in July 2001. He applied for the position of Senior Programmer Analyst, and interviewed with and was hired by Frank Lombardo who was then "Finance Department Manager, IT." During the interview process, plaintiff indicated to defendant that he had a "history of disability" from epilepsy.

  Prior to employment with defendant, plaintiff worked for Discover Card Financial Services as a Staff Programmer Analyst and System Programmer from 1995 to May 1998. He was terminated from that position for performance-based reasons. He then sued Discover alleging disability discrimination. Plaintiff then went to work for Unitec, Inc. as a Programmer Analyst from September 1998 until April 1999, when he was again involuntarily terminated for performance deficiencies. He then sued Unitec alleging disability discrimination.

  Despite this history, plaintiff lied on his application to defendant, indicating that he left his previous positions for personal reasons. His resume indicates that he was experienced in various programming languages and techniques, including COBOL, CICS and JCL and COBOL II. Based on these asserted qualifications, Lombardo hired plaintiff for the Senior Programmer Analyst ("SR. PA") position. In that position plaintiff was required to compile programs, work with end users, use data based technologies to incorporate within programs, write COBOL code, write DB2 statements, perform and add JCL statements, execute jobs and meet deadlines.

  Plaintiff had performance problems from the start of his employment. Within plaintiff's initial 30 days, Lombardo, who was plaintiff's initial supervisor, noticed serious deficiencies in plaintiff's technical programming skills. Lombardo counseled plaintiff about those deficiencies in plaintiff's introductory review, and gave plaintiff an "unacceptable/does not meet expectations" rating. According to Lombardo, plaintiff did not understand basic computer programming, repeatedly asked for assistance with coding and executing programs and completing assignments, and continuously missed deadlines. Lombardo prepared an improvement plan and provided one-on-one coaching and counseling from himself and other more senior analysts. Despite this help, plaintiff did not successfully complete his initial 90 day introductory period. Lombardo decided to demote plaintiff from Senior SR. PA to PA, rather than terminate plaintiff's employment. Plaintiff does not dispute Lombardo's assessment of his performance and was in agreement with the demotion. Plaintiff was then placed on a second 90 day probationary period for the new position. In the new position, plaintiff was given increased monitoring and coaching to help him improve his performance level. Soon after the demotion, however, Lombardo discovered that there were even more severe deficiencies in plaintiff's knowledge. Plaintiff was unable to attach a document to an email, even after repeated instructions. He continued to have problems with DB2, JCL, VSAM language, and files and data base commands. Tasks that should have taken minutes took plaintiff days, and tasks that should have taken a day took plaintiff a week.

  In February 2001 Lombardo began to prepare plaintiff's annual review. He gave plaintiff a "needs improvement" rating and noted that plaintiff would be placed on a Performance Improvement Plan ("PIP") and would be reviewed after 30 days. Plaintiff rated himself as "needs improvement" and requested more help. Plaintiff was then placed on the PIP.

  Lombardo, who plaintiff admits treated him fairly at all times, was transitioning out of the area and was replaced by Christine Skulstad, who was placed in charge of developing plaintiff's PIP based on the specifics in Lombardo's review. Plaintiff alleges that defendant's discrimination began once Skulstad became his supervisor.

  When Skulstad took over, she determined that all programmers would be required to perform pager support. Plaintiff informed Skulstad that due to his epilepsy he would be unable to perform night time pager support. He volunteered to work extra day time support instead. This was the first time plaintiff requested any sort of accommodation due to his condition. Plaintiff claims that Skulstad was upset about plaintiff's request, but it is undisputed that after submitting support from his physician, plaintiff was never required to perform night time pager support. Nonetheless, plaintiff argues that from that point on Skulstad became abusive and, by giving him more assignments, made it impossible for plaintiff to work his way off the PIP Eventually plaintiff requested a transfer. He claims that he was told initially that he could not transfer because he was on a PIP. After stating that it was for medical reasons, defendant requested a doctor's note. Plaintiff provided such a note, which indicated that plaintiff had difficulty with memory and had an inability to function well in a very stressful environment, recommending that plaintiff be transferred to a "less demanding and less stressful work position." In a telephone conversation, plaintiff's doctor indicated that plaintiff would have trouble juggling multiple tasks and that he needed a structured work environment where he would be able to work without interruption in a job requiring rote and routine work.

  After much prodding from defendant, plaintiff submitted a list of jobs in which he was interested. These jobs included various programming and management positions. He indicated that he preferred not to take a cut in pay. Plaintiff then meet with defendant's Recruitment Manager to discuss potential positions. The Recruitment Manager then met with Nadine Etienne, Director of Human Resources, to evaluate plaintiff's qualifications and experience, his inability to perform complex and multiple tasks, and the doctor's information concerning plaintiff's medical limitations, against the positions plaintiff had listed. They determined that the positions plaintiff identified did not match plaintiff's education and experience, salary requirements, and medical limitations, particularly plaintiff's problem with multitasking.

  Etienne told plaintiff that plaintiff was qualified for an Associates Benefits Administration position ("ABA"), but plaintiff refused, he claims because he was not interested; defendant claims plaintiff refused the ABA because it required a cut in pay. Defendant was unable to identify any other available position for which plaintiff might qualify. Despite plaintiff's continued poor performance, his PIP was kept open for longer than the usual 90 days, giving defendant time to explore a possible transfer. Finally, plaintiff's employment was terminated on July 25, 2001. When informed of the termination, plaintiff then asked if he could be considered for transfer to the ABA position he had rejected previously. That position had, however, already been filled.

  DISCUSSION

  In Count I, plaintiff alleges that he was terminated based on a disability. Defendant has moved for summary judgment on Count I, arguing that plaintiff cannot demonstrate that he qualifies for protection under the ADA. Additionally, defendant argues that even if defendant ...


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