United States District Court, N.D. Illinois, Eastern Division
June 16, 2005.
MALINEE YINDEE, Plaintiff,
COMMERCE CLEARING HOUSE, INC., Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Defendant
CCH, Inc. for summary judgment of the complaint of Plaintiff
Malinee Yindee. For the reasons set forth below, the motion is
Yindee is a former employee of CCH at its facility in
Riverwoods, Illinois. Her employment extended from January 17,
2000, until January 17, 2003. Sometime in 2000, Yindee was
diagnosed with endometrial cancer; she underwent a complete
hysterectomy to treat her condition. In approximately February
2002, as a result of periodic unexplained bouts of dizziness
(intermittent idiopathic vertigo), her physician instructed her
to stop driving while they continued. Although her job duties as a programmer analyst in CCH's human
resources department did not require her to drive, Yindee
commuted from her home in Rockford by car. In late March 2002,
after her doctor instructed her to stop driving, she requested
and received permission to telecommute (i.e., work from home) for
a threeweek period. At CCH, telecommuting is a voluntary
arrangement that may be terminated at any time by either CCH or
the employee. The responsibilities and duties of employment are
the same whether an employee works on-site or telecommutes.
The telecommuting application Yindee submitted specified that
she would work online (i.e., while remotely connected to CCH's
network) for 5-6 hours per day. The remainder of her 8-hour
workday could be spent offline.*fn1 After the initial
three-week period, Yindee continued to telecommute once or twice
a week until July 1, when Ken Tennant, Yindee's supervisor,
terminated her telecommuting privilege citing performance
problems. Rather than addressing the issue with Tennant, Yindee
complained to Zrinka Allen, a human resource department employee
who reported to the same supervisor as Tennant did, Sue Mullin.
This in turn sparked several meetings between various
combinations of Yindee, Allen, Tennant, and Mullin. In early
August, Tennant again told Yindee that her job performance was becoming
unsatisfactory and that she needed to complete outstanding
projects. On August 15, 2002, Yindee filed a written grievance
against Tennant for terminating her telecommuting.
From early August into September, Tennant continued to find
fault with Yindee's job performance. On September 17, 2002,
Yindee filed a charge with EEOC, alleging Tennant was
discriminating against her because of her race, sex, religion,
national origin, and age. Nine days later, on a Thursday
afternoon, Tennant and Allen met with Yindee regarding the
ongoing issues Tennant had identified in her job performance. At
that meeting, Yindee was given a verbal warning about addressing
these issues and was informed that she would receive a written
warning the following week. She was also told that she would be
placed on a performance improvement plan. Although the record is
not entirely clear on what Yindee was told, it is apparent that
the problems were described in some detail.
The following day, a Friday, Yindee contacted Tennant and
informed him that she would be taking off the next Monday and
Tuesday from work. On Monday, she remitted a note from her
physician recommending that she take a short leave of absence.
She was permitted to take leave pursuant to the Family Medical
Leave Act ("FMLA") from September 30, 2002, until January 2,
2003. On December 12, 2002, while still on FMLA leave, Yindee filed
another charge with the EEOC, this time claiming discrimination
on the basis of disability. She specified that the disability in
question was her endometrial cancer.
On January 2, Yindee returned to work. That day, Tennant gave
her a written copy of her performance improvement plan. It
informed her that she was on a 30-day probation period, during
which she was to improve the quality of her work, her knowledge
of software used at CCH, problem-solving skills, her manner of
requesting paid time off, and her behavior toward coworkers and
Tennant. She was informed that repetition of the identified
behavior within the 30-day period could lead to action including
Two weeks later, Yindee and Tennant engaged in an email
exchange regarding one of Yindee's ongoing projects. Yindee
indicated that she was having problems with the software she used
to complete the project and asked Tennant if she needed his
approval before contacting the software company directly. In
examining the specific problems she identified, Tennant
discovered that they were caused by Yindee's errors, rather than
bugs in the underlying program. Because he had specified this
type of activity as indicative of deficient problem-solving
skills in the past, he concluded that Yindee had not complied
with the requirements of the performance improvement plan. He met with Allen and Mullin, and the decision was made to
terminate Yindee's employment. The decision was carried out the
following day, January 17.
On January 23, Yindee filed another charge with EEOC and IDHR,
claiming that her termination was in retaliation for her December
12 charge of disability discrimination. After receiving a
right-to-sue letter, she filed this case, alleging violations of
the ADA, the FMLA, Title VII, and the Employee Retirement Income
Security Act ("ERISA").
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals 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). The moving party bears the initial burden of showing that
no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548 (1986). The burden
then shifts to the nonmoving party to show through specific
evidence that a triable issue of fact remains on issues on which
the nonmovant bears the burden of proof at trial. Id. The
nonmovant may not rest upon mere allegations in the pleadings or
upon conclusory statements in affidavits; it must go beyond the
pleadings and support its contentions with proper documentary
evidence. Id. The court considers the record as a whole and
draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine
issue of material fact exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.
2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986). With these principles in mind, we turn
the motion before us.
A. Unlawful Discrimination
The first counts of Yindee's complaint contend that CCH's
conduct toward her during 2002 and 2003 violated the Americans
with Disabilities Act ("ADA"). The pertinent provision prohibits
employers from discriminating against an employee who is a
"qualified individual with a disability" because of that person's
disability. 42 U.S.C. § 12112(a). The ADA defines "disability" as
an impairment, either physical or mental, that substantially
limits one or more of the employee's major life activities.
42 U.S.C. § 12102(2)(A).*fn2
Yindee focuses her attention on whether a jury could perceive
CCH's actions toward her as being discriminatory and rooted in
her medical woes. However, this puts the cart before the horse. First we must determine whether her
difficulties rise to the level of being a disability under the
ADA. If they do not, the statute imposed no obligations on CCH.
Yindee advances two possible candidates for a disability: the
endometrial cancer for which she underwent treatment in 2000 and
the dizzy spells she experienced in 2002.
Cancer can be a disability for ADA purposes in some
circumstances. However, in Yindee's case, there is no evidence
that she still had endometrial cancer in the spring and summer of
2002. She had undergone a complete hysterectomy, which presumably
removed all of her endometrial tissue, in 2000. There is no
evidence in the record that she experienced any recurrence, and
Yindee could not be disabled by an impairment she did not have.
The other contender, Yindee's vertigo, does not qualify as a
disability under the ADA because it does not substantially limit
her in a major life activity. The sole activity she identifies as
being limited by her vertigo is her driving. Driving in and of
itself is not of central importance to daily life, on par with
activities such as seeing, hearing, or working in a broad class
of jobs, so it is not a major life activity as that term is used
in an ADA context. See Toyota Motor Mfg. v. Williams,
534 U.S. 184, 197, 122 S. Ct. 681, 691 (2002). With no showing that she suffers from a qualifying disability,
Yindee's claim of discrimination under the ADA does not even get
out of the gate. Moreover, there is no legal obligation on an
employer to accommodate a condition that is not a disability.
Because Yindee has not shown herself to be disabled and thus
protected by the ADA, CCH is entitled to summary judgment on
Counts I and II of the complaint.
The remaining counts of Yindee's complaint sound in retaliation
under Title VII,*fn3 the ADA, the FMLA, and ERISA. Although
Yindee treats these causes of action separately in her complaint,
she combines her response to CCH's challenges to them into a
single argument. We shall consider them in a like manner. A plaintiff claiming unlawful retaliation by an employer can
proceed under either a direct or an indirect method of proof when
faced with the employer's motion for summary judgment. Rogers v.
City of Chicago, 320 F.3d 748, 753 54 (7th Cir. 2003). Under
the direct method, Yindee must put forth direct or circumstantial
evidence that she engaged in protected activity and as a result
suffered the adverse employment actions of which she complains.
Id.; Stone v. City of Indianapolis Publ. Utils. Div.,
281 F.3d 640, 644 (7th Cir. 2002).
It is undisputed that Yindee does not have direct evidence that
CCH took any of the negative actions she identifies as a result
of her challenges to the legality of Tennant's actions. She
contends that the sum total of the events from July 2002 until
her termination constitute circumstantial evidence sufficient to
permit a factfinder to conclude that CCH acted in retaliation.
While circumstantial evidence can undoubtedly allow a plaintiff
to proceed under the direct method, the presence of some evidence
does not automatically create a triable issue of fact. Rather, a
plaintiff must advance circumstantial evidence that points
directly to an impermissible reason for the employer's act. See
Adams v. Wal-mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.
2003). The evidence to which Yindee points includes Tennant's
criticisms of her work performance, suspension of her email and
other network access while she was on leave, the hiring of
another person in her work group, and the close temporal
proximity of the events at issue. Even when considered in a light most favorable
to her, these instances do not lead inexorably to a conclusion
that CCH retaliated against her once she began filing grievances
and EEOC charges. Thus, Yindee must proceed under the indirect
method if she is to stave off summary judgment for CCH on her
retaliation claims. See id.
The indirect method of proof incorporates the well-traveled
McDonnell-Douglas burden-shifting approach. Here, Yindee must
show that after engaging in the conduct she claims touched off
CCH's wrath, she and no other similarly situated employee who did
not engage in similar conduct, was subjected to adverse
employment action even though she was satisfactorily carrying out
her employment duties. Stone v. City of Indianapolis Public
Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002). CCH must then
counter her allegations with a noninvidious reason for the
actions it took. Id. If it can, Yindee must rebut that showing
with evidence that CCH's proffered reason is a pretext designed
to cover its actual, retaliatory motives. Mannie v. Potter,
F.3d 977, 984 (7th Cir. 2005).
The undisputed facts of this case show that Yindee did suffer
adverse employment action after she filed her internal grievance
and her first two EEOC charges. On the other two factors of her
prima facie case, Yindee faces obstacles. With respect to a
similarly situated employee, Yindee identifies her coworker David Goodspeed. To be similarly situated, Goodspeed must be directly
comparable in all material respects to Yindee. Patterson v.
Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
However, Yindee does not provide any illumination of Goodspeed's
work situation or background that would allow us to make a
meaningful assessment of the similarities between the two.
The final element of her prima facie case is intertwined with
the second and third stages of the burden-shifting test. Yindee
claims that she was performing satisfactorily; CCH contends that
she was not. If those were the only considerations, summary
judgment would not be a proper vehicle for disposition of this
case. However, though Yindee vehemently disagrees with CCH's
contentions regarding her performance, at best the arguments she
advances support a conclusion that CCH was mistaken in its
assessment, not that its reasons were fake or phony. See
Walker v. Mueller Industries, Inc., 408 F.3d 328, 333 (7th Cir.
2005). Because Yindee cannot show either the second prong of her
prima facie case or that CCH acted out of pretext, CCH is
entitled to summary judgment of her retaliation claims.
CONCLUSION Based on the foregoing analysis, CCH's motion for summary
judgment is granted.