United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
IMOGENE MANNING Plaintiff,
THE UNIVERSITY OF CHICAGO, HOSPITALS, an Illinois not-for-profit corporation, Defendant.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
Before the Court is the defendant's motion for summary
judgment. For the reasons set forth below, the motion is granted.
Plaintiff, Imogene Manning, was an employee of the defendant,
University of Chicago Hospitals ("Hospital"), for over thirty
years spanning from August 1971 until her discharge on April 9,
2003. (Local Rule 56.1(a) Statement of Facts "SOF" ¶¶ 16-17.)
Beginning in 1996 until her discharge, Manning worked as an
outpatient service representative, performing registration and
patient inquiry functions for outpatient appointments. (Id. ¶
On June 15, 2001, Manning took a medical leave of absence to
undergo surgery and treatment for bladder cancer. (Id. ¶ 20.)
On December 20, 2001, while on leave, Manning notified her
supervisors in the Outpatient Services Department ("Department")
that she would be able to return to work on January 7, 2002.
(Id. ¶ 22.) When Manning presented herself for reinstatement on January 7, 2002, she had completed cancer
treatment, her cancer was in remission, and her physician had
released her for work with no medical restrictions. (Resp. to SOF
¶ 23.) She admits her only limitations were some discomfort when
sitting on bar-stool height chairs and difficulty walking long
On January 7, 2002, Manning met with human resources personnel,
who requested that she take an assessment test to assist in
identifying open and available positions throughout the Hospital
for which she was qualified. (Id. ¶ 27.) Based on advice she
received from her union representatives, Manning never took the
assessment test, believing it was not required under the union's
collective bargaining agreement. (Id. ¶¶ 27-28.)
After filing a grievance with her union, Manning was reinstated
to her position on April 7, 2002. (Id. ¶ 29.) On May 15, 2002,
she filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") alleging the Hospital's actions
in not reinstating her on January 7, 2002 constituted disability
In the months following the filing of her EEOC charge on May
15, 2002, Manning alleges she was subjected to less favorable
treatment than her coworkers and was given less favorable job
assignments. Accordingly, on October 7, 2002, she filed another
charge with the EEOC alleging retaliation. She was issued a
notice of her right to sue on May 23, 2003.
During the last several years of her tenure with the Hospital,
Manning received negative performance evaluations. From 1996
through June 2001, the period before Manning went on medical
leave, she received annual evaluations of her work performance.
(Id. ¶ 18.) Manning admits she consistently received an overall
rating of "1" or "2," which indicated she needed improvement.
(Id.) After she returned to work, her performance did not improve.
Approximately nine months after her return, in January 2003, her
department implemented a new method of auditing employees' work.
The managers began reviewing employees' daily work logs and
randomly selected approximately five accounts listed on the log.
(Id. ¶ 35.) The managers then reviewed those patient accounts
and completed a quality assurance audit report. (Id. ¶ 36.) New
employees or those having performance issues were audited using
the daily work log method. (SOF ¶ 37.)
Because Manning had performance problems and had been recently
reinstated, department managers began reviewing her daily work
log. The managers reported that for the period April 2002 through
April 2003, she made errors on approximately sixty percent of the
patient accounts she worked. (SOF ¶ 47.) Manning admits she
received a counseling memorandum detailing her poor performance
on June 17, 2002, followed by a written warning on August 26,
2002 and a three-day suspension starting October 9, 2002 for poor
work performance. (Resp. to SOF ¶ 50.) On February 3, 2003, the
Department issued a second three-day suspension for poor work
performance and advised her that if her performance did not
improve within 60 days, her employment would be terminated.
(Id. ¶ 51.) Citing her poor work performance, the Hospital
discharged Manning on April 9, 2003. (Id.)
On June 26, 2003, Manning filed a second charge of retaliation
with the EEOC (her third EEOC charge) alleging that her discharge
on April 9, 2003 was in retaliation for filing previous charges
with the EEOC. On July 8, 2003, she was issued a notice of her
right to sue in federal court.
On August 19, 2003, Manning filed a six-count complaint against
the Hospital in this Court. In Count I, she alleges a violation of the Americans with
Disabilities Act ("ADA") for failure to reasonably accommodate.
In Count III, she alleges the Hospital subjected her to less
favorable treatment than similarly situated employees in
retaliation for having filed an EEOC charge of discrimination on
May 15, 2002. In Count V, she alleges the Hospital terminated her
employment on April 9, 2003 in retaliation for having filed
previous EEOC charges. In Counts II, IV, and VI, Manning also
alleges violations of the Illinois Human Rights Act. On September
24, 2004, however, this Court granted plaintiff's own motion to
voluntarily dismiss these state law claims. The Hospital now
seeks summary judgment on the remaining Counts I, III, and V.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate in a situation where "the pleadings, depositions,
answers to interrogatories, and admission 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); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The Court's
function is "not to weigh the evidence but merely to determine if
`there is a genuine issue for trial.'" Jackson v. Illinois
MediCar, Inc., 300 F.3d 760, 764 (7th Cir. 2002) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A
genuine issue of material fact exists only if a "fair-minded jury
could return a verdict for the [non-moving party] on the evidence
presented." Anderson, 477 U.S. at 252.
In assessing whether a genuine issue of material fact exists in
a case, the Court must construe all facts in the light most
favorable to the non-moving party and draw all reasonable and
justifiable inferences in favor of that party. See id. at 255.
However, neither the mere existence of some alleged factual
dispute between the parties, nor the existence of "some
metaphysical doubt as to the material facts," is sufficient to defeat a motion
for summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
A. Count I: Failure to Accommodate
In Count I, Manning claims the Hospital discriminated against
her in violation of the ADA by delaying her return to work from
January 7, 2002, the day she requested reinstatement, to April 7,
2002, the day of her discharge. The ADA provides that "[n]o
covered entity shall discriminate against a qualified individual
with a disability because of the disability of such individual in
regard to . . . advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a). The ADA requires
employers to provide "reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship." 42 U.S.C. § 12112(b)(5)(A). To
invoke protection under the ADA, a plaintiff must demonstrate
that (1) she is a disabled person within the meaning of the ADA,
(2) she is otherwise qualified to perform the essential functions
of the job either with or without reasonable accommodation, and
(3) she has suffered an adverse employment action because of her
disability. Dvorak v. Mostardi Platt Assoc., Inc.,
289 F.3d 479, 483 (7th Cir. 2002); Moore v. J.B. Hunt Transp., Inc.,
221 F.3d 944, 950 (7th Cir. 2000).
The Hospital seeks summary judgment on the ground that Manning
is not "disabled" as that term is defined under the ADA. The ADA
defines "disability" as (a) a physical or mental impairment that
substantially limits one or more of the major life activities of
an individual; (b) a record of such impairment; or (c) being regarded as having such
an impairment. 42 U.S.C. § 12102(2); see Roth v. Lutheran Gen.
Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). The Court must
interpret these terms "strictly to create a demanding standard
for qualifying as disabled." Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 197 (2002). It is clear that "[m]erely
having an impairment does not make one disabled for purposes of
the ADA." Id. at 195. In addition, a plaintiff must demonstrate
that the impairment substantially limits one of her major life
activities. See 42 U.S.C. § 12102(2)(A). "Substantially
limited" means that "an individual must have an impairment that
prevents or severely restricts the individual from doing
activities that are of central importance to most people's daily
lives. The impairment's impact must also be permanent or long
term." Toyota Motor Mfg., 534 U.S. at 197.
If Manning's condition does not rise to the level of a
disability, then she cannot recover under the ADA even if the
Hospital terminated her employment because of her condition. "The
Act is not a general protection of medically afflicted
persons. . . . If the employer discriminates against them on
account of their being (or being believed by him to be) ill, even
permanently ill, but not disabled, there is no violation."
Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1053
(7th Cir. 1997) (citation omitted).
In this case, Manning's only alleged limitation upon her return
to work on January 7, 2002 was her discomfort when sitting on
bar-stool height chairs and difficulty walking long distances.
(Resp. to SOF ¶ 23.) She admits she never made a formal request
nor presented a medical opinion that an accommodation should be
made related to these limitations. (Id. ¶ 24.) At the time she
presented herself for reinstatement, she had completed cancer
treatment, her cancer was in remission, and her physician had
released her for work with no medical restrictions. (Id. ¶¶ 22-23.) Manning's impairments cannot be
said to be a "substantial impairment" preventing or restricting
her ability to engage in activities that are of central
importance to the daily lives of most people. Toyota Motor
Mfg., 534 U.S. at 197. "The central inquiry must be whether the
claimant is unable to perform the variety of tasks central to
most people's daily lives, not whether the claimant is unable to
perform the tasks associated with her specific job." Mack v.
Great Dane Trailers, 308 F.3d 776, 782 (7th Cir. 2002). Her
discomfort when sitting on bar-stool height chairs and difficulty
walking long distances are clearly not the sort of restrictions
which constitute a substantial limitation on one's ability to
perform one's job or any other major life activity. See
Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001)
(holding that forty-five pound lifting restrictions, inability to
engage in strenuous work or drive a forklift for more than four
hours per day fail to "constitute a significant restriction on
one's capacity to work, as the term is understood within the
Because plaintiff's limitations cannot be said to substantially
limit any of her major life activities, she does not have a
disability as defined by the ADA. The Court need not address the
other requirements of an ADA claim because without a disability
Manning's claim must fail. For these reasons, the Court grants
summary judgment on Count I.
B. Counts III and V: Retaliation under the ADA
In Count III, Manning alleges that, after she filed an EEOC
charge on May 15, 2002 for disability discrimination, the
Hospital retaliated by subjecting her to less favorable treatment
than similarly situated coworkers. (Compl. ¶ 17.) She alleges the
Hospital carried out its retaliation by "constantly scrutinizing
her actions and giv[ing] her disciplinary write-ups for conduct
that was either not a proper subject for discipline or for which
other similarly situated employees were not given disciplinary write-ups." (Id. ¶ 18.) Manning
reported this alleged retaliation in a charge she filed with the
EEOC on October 7, 2002.
In Count V of the complaint, Manning alleges her discharge on
April 9, 2003 was in retaliation for the filing of her charges
with the EEOC on May 15 and October 7, 2002.
To establish a prima facie case of retaliation under the ADA,
Manning must demonstrate that (1) she engaged in protected
activity (e.g., filing an EEOC charge); (2) she suffered an
adverse employment action; (3) she was meeting her employer's
legitimate employment expectations; and (4) other similarly
situated employees who did not engage in protected activity were
treated more favorably. Stone v. City of Indianapolis Public
Utilities Div., 281 F.3d 640, 642 (7th Cir. 2002). If she can
establish a prima facie case of retaliation, the Hospital may
rebut her claim, under the McDonnell-Douglas analysis, by
providing a non-invidious reason for its actions. See Stone,
281 F.3d at 643. If an employer provides a legitimate reason for
its conduct, the burden shifts back to the employee to provide
evidence that the employer's proffered reason is pretext. Id.
In this case, Manning cannot establish a prima case of
retaliation for at least two reasons. First, she cannot
demonstrate that she was meeting her employer's legitimate
employment expectations. An inference of retaliatory motive is
less warranted when the plaintiff is in performance trouble
before she engages in protected activity. Allen v. Chicago
Transit Authority, 317 F.3d 696, 701 (7th Cir. 2003) (finding
plaintiff's retaliation claims "fatally undermined by
uncontroverted evidence of infractions and discipline prior to
his complaints. . . ."). Before Manning took her medical leave of
absence, she admits she consistently received an overall rating
of "1" or "2" on a one to five scale, one being the lowest rating
available. (Resp. to SOF ¶ 18.) In a 1999 performance evaluation, her supervisors noted that
her performance was well below average and "[s]he rebuffs the
idea that she needs training and even where she has received
additional training, she still performs inadequately." (SOF, Ex.
E.) In the same evaluation, which covered the period October 1998
to October 1999, her supervisors note:
Imogene continually refuses to follow departmental
procedure, for example, she eats at the greeters desk
. . . does not answer the phone in a timely manner,
does not relay important phone messages. . . . Her
quality of work is inconsistent. She is moody and
argumentative. Imogene is defensive with staff and
management, temperamental, promotes unrest. Makes no
effort to speak or make eye contact with persons
approaching her workstation. . . . She can be
impolite and/or abrupt with patients and coworkers.
Her tone is abrasive, disinterested and
disrespectful. . . . She fails to document pertinent
information and refuses to be responsible for follow
(Id., Pride In Performance Planning and Review Form dated
11/9/99, at 36.)
Manning received these and other below-average evaluations
before she filed her first EEOC complaint on May 15, 2002.
When she returned to work in April 2002, managers in her
department reviewed her daily work log and reported that for the
period April 2002 through April 2003, she made errors on
approximately sixty percent of the patient accounts she worked.
(SOF ¶ 47.) She admits she received a written warning for poor
performance on August 26, 2002, a three-day suspension for poor
performance on October 9, 2002, and a second three-day suspension
for poor work performance on February 3, 2003. (Resp. to SOF ¶¶
50-51.) On February 3, 2003, the Department also advised her that
if her performance did not improve within 60 days, her employment
at the Hospital would be terminated. (Id. ¶ 51.) Manning admits
that from these reviews she understood that her superiors were
dissatisfied and her employment was in jeopardy. (SOF ¶ 18.)
Citing her poor work performance, the Hospital discharged her on
April 9, 2003. (Id. ¶ 51.) Evaluations establishing Manning's poor work performance before
the filing of her first EEOC charge support the Hospital's claim
that it discharged her for this continued poor performance when
she returned to work in April 2002 and not in retaliation for the
filing of EEOC charges. A clear pattern of expressed
dissatisfaction with the plaintiff over a period of several years
precludes any possibility of her establishing that she was
meeting the Hospital's legitimate expectations. Having carefully
reviewed the briefs and other supporting documents, including
Manning's performance evaluations included in the exhibits to the
Defendant's Local Rule 56.1 Statement of Facts, it is clear she
cannot establish at trial that she was meeting the Hospital's
legitimate employment expectations.
Second, Manning cannot establish the fourth element of a prima
facie retaliation claim, which requires that plaintiff prove
other similarly situated employees who had not filed EEOC charges
were treated more favorably. The Seventh Circuit has held "[w]hen
a plaintiff claims that [she] was disciplined more harshly than a
similarly situated employee based upon some prohibited reason, a
plaintiff must show that [she] is similarly situated with regard
to performance, qualifications and conduct." Snipes v. Illinois
Dep't of Corrections, 291 F.3d 460, 463 (7th Cir. 2002). To do
so, the plaintiff must demonstrate that she and the alleged
comparable "engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish
their conduct or the employer's treatment of them." Id.
In this case, Manning has presented no evidence that she was
disciplined more harshly than other similarly situated employees
who had not filed EEOC charges. In her opposition brief to
defendant's summary judgment motion, she states only that she
"was treated much more harshly via her discharge than were the
other OSR employees who were not discharged from their jobs." (Pl.'s Mem. Opp'n Summ. J at 12.) The Seventh
Circuit has explained that such generalizations, without factual
support in the record, are insufficient to defeat summary
judgment. See Albiero v. City of Kankakee, 246 F.3d 927, 933
(7th Cir. 2001); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293,
1295 (7th Cir. 1993).
Moreover, the Hospital presents in its Local Rule 56.1
Statement of Material Facts an internal quality assurance report
showing that Manning had an error rate six times the average in
her department and more than three times greater than that of the
next worst performing employee. (SOF ¶¶ 59-60.) According to the
Hospital, this report demonstrates that Manning cannot be
similarly situated to others in her department because, in terms
of performance, Manning "was plainly in a league of her own and
thus incapable of showing that similarly situated employees were
treated better than she." (Mem. in Supp. of Summ. J at 11.)
Manning's response to this report is that she lacks knowledge
sufficient to either admit or deny this claim. (Resp. to SOF ¶¶
59-60.) Under Local Rule 56.1(b), all material facts set forth in
the defendant's Statement of Material Facts are deemed admitted
unless controverted by the statement of the opposing party. Here,
because Manning does not controvert the Hospital's report, we
conclude that its findings are accurate. We also agree with the
Hospital's analysis that because a plaintiff must show she is
similarly situated with regard to performance, Manning is unable
to find a coworker with whom she is similarly situated because
her performance was far worse than that of her colleagues. See
Snipes, 291 F.3d at 463.
Because the primary purpose of summary judgment is to isolate
and dispose of factually unsupported claims, Manning must set
forth specific facts showing there is a genuine issue for trial.
See Fed.R.Civ.P. 56; Albiero, 246 F.3d at 933. A party will
be successful in opposing summary judgment only when it presents definite, competent
evidence to rebut the motion. Albiero, 246 F.3d at 933. Here,
Manning has failed to present competent evidence either that she
was meeting her employer's legitimate expectations, or that other
similarly situated employees were treated more favorably.
Accordingly, she has failed to establish a prima facie case of
retaliation under the ADA.
Even assuming that Manning could establish a prima facie case
of retaliation against the Hospital, the Hospital would be
entitled to summary judgment because it has proffered a
legitimate, non-discriminatory reason for terminating her
employment. Manning's continued inadequate performance in a job
requiring accuracy and efficiency and her receipt of a warning
and two three-day suspensions in one year's time are undisputed.
(SOF ¶¶ 50-52.)
Manning offers no credible evidence that the reason the
Hospital gave for discharging her was not its real reason.
Nothing in the timing or other aspects of the case suggest a
retaliatory motive. She filed her initial charge of
discrimination with the EEOC on May 15, 2002 and continued to
work for eleven months thereafter. Such a gap between the
protected act of filing an EEOC claim and the adverse employment
action defeats a finding of retaliation. Haywood v. Lucent
Technologies, Inc., 323 F.3d 524, 532 (7th Cir. 2003). Manning
also admits that no one from the Hospital ever made negative
mention of her pending charges or otherwise indicated a
dissatisfaction with her having filed them. (SOF ¶ 29.)
In addition, an inference of a retaliatory motive is even less
warranted when the plaintiff was in serious performance trouble
even before engaging in the protected activity. Here, Manning
admits receiving negative performance reviews before she ever
filed a charge or the circumstances leading to the charge had
arisen. (SOF ¶ 18.) Plaintiff simply cannot meet her burden of proffering any probative evidence showing that the
reasons for her termination were a pretext for retaliation. See
Jackson v. E.J. Brach Corp., 176 F.3d 971, 983-84 (7th Cir.
1999). For these reasons, the Court grants defendant's motion for
summary judgment on Counts III and V.
For the foregoing reasons, we grant defendant's motion for
summary judgment [# 19-1]. Accordingly, this case is terminated.
This is a final and appealable order.
It is so ordered.
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