The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Sharifah Scott-Riley has sued her former employer, Mullins Food Products, Inc., for discrimination based on disability and failure to accommodate under the Americans with Disabilities Act, 42 U.S.C. § 12112(a); for discrimination based on race and gender, retaliation, and creation of a hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981; for retaliatory discharge in violation of Illinois public policy; and for intentional infliction of emotional distress under Illinois common law. Scott-Riley has also sued her former supervisor, Bill Mullins, for discrimination based on race and retaliation under 42 U.S.C. § 1981. Both defendants have moved for summary judgment. For the following reasons, the Court grants the motion in part and denies it in part.
Scott-Riley is an African-American female who worked for Mullins Food on a full-time basis from December 13, 1999 until her termination on October 18, 2002. Mullins Food is a family-owned business that prepares and sells specialty foods to the restaurant industry. Scott-Riley entered the company as a level two laboratory technician in the quality assurance department after graduating from Grambling State University. In that position, she tested fat, moisture, salt, acid, pH, and viscosity in foods prepared by the company. She also filled in for the microbiologist from time to time. Mullins Food eventually promoted Scott-Riley to a level three laboratory technician, though the parties do not indicate when that promotion occurred.
On December 29, 2000, Scott-Riley suffered third degree burns when she accidentally submerged her foot into a bucket of hot water while cleaning a sterilization machine. Because of the seriousness of the injury, she was out of work for more than three months. When she returned on April 4, 2001, her physician said she could return on a part-time, light-duty basis, and Mullins Food accommodated this limitation by allowing Scott-Riley to work only five hours a day, Monday through Thursday. On June 4, 2001, Scott-Riley returned to work on a full-time basis with the restrictions that she not climb stairs if uncomfortable and that her work be sedentary. Though employees ordinarily marked their arrival time by punching a time clock on the second floor, Mullins Food allowed Scott-Riley to record her time by completing hand written time sheets so that she did not have to climb stairs.
Scott-Riley gave birth to a child on March 11, 2002, was off work for eleven weeks, and returned on May 21, 2002. At that time, Scott-Riley claims that Tom Mullins, an officer with Mullins Food, told her to start going upstairs to punch the time clock. Scott-Riley complained that this would cause her discomfort, but Tom Mullins said her foot should be healed by this time. Scott-Riley then complained to the Director of Human Resources, Donna Hrebec, who told her that she should not have to climb the stairs if her doctor's notes were up to date. From May 21 to October 17, Scott-Riley climbed the stairs when her foot did not hurt--a total of approximately seven times.
In August 2002, Tom Mullins looked into Scott-Riley's arrival times by consulting the computerized access system which records when an employee swipes her key card. The report revealed that Scott-Riley was tardy eighteen times from June 27 - August 21, though she had noted otherwise on her hand written time sheets. Tom Mullins believed her conduct constituted a form of theft. Scott-Riley, maintains that Charles Wind, her supervisor in the Quality Assurance Lab, knew that she completed her time sheets in the manner she did, because he gave her the time sheets for payroll purposes a week after they should have been completed. She concedes that she may have been late between June 27 and August 21, 2002, but insists that Wind excused her tardiness on these occassions. Scott-Riley claims that Wind knew that her baby suffered from sleep apnea and allowed her, when the baby was ill, to arrive late and make up the time at the end of her shift. Indeed, Wind personally kept attendance records for each of his employees, and his notes do not reflect any unexcused tardies for Scott-Riley during the relevant period of time.
On August 21, 2002, Mike Mullins, Mullins Food's in-house counsel, met with Scott-Riley to discuss the discrepancies between her time sheets and the times the system indicated she had swiped her keycard. Mike Mullins told her that the number of tardies was unacceptable and that her timeliness needed to improve. Later that day, Scott-Riley spoke with Wind, and he also expressed disapproval of her tardiness. She told Wind that the baby was making her late, so he changed her start time from 6:00 a.m. to 6:30 a.m. to accommodate her. In a August 26 meeting, Tom Mullins changed Scott-Riley's start time again, and told her to swipe the door by 6:25 to arrive at her work station by 6:30.
On August 21 or August 26 (the parties disagree on the exact date), Mullins Food instituted its formal disciplinary policy against Scott-Riley. That policy required a verbal warning after three tardies, a written warning after four tardies, a suspension after five tardies, and discharge after six tardies. On August 26, Scott-Riley received a written warning for arriving to work at 6:09 a.m. on August 22. Scott-Riley insists she was not late on August 22 because her start time had already been changed to 6:30. On September 19, Scott-Riley received a three day suspension because she arrived to work at 6:28 on September 12 and 6:29 on September 19. On September 23, Scott-Riley filed a charge of discrimination with the EEOC, claiming that similarly situated male, non-black, and non-disabled employees were not suspended for being tardy. On October 11, the EEOC issued a letter notifying Mullins Foods of the charge. Bill Mullins denies receiving the letter before October 21. On October 17, Scott-Riley swiped the door at 6:28, and Bill Mullins terminated her employment.
On March 27, 2003, Scott-Riley filed an amended EEOC charge alleging that she had experienced a hostile work environment. She maintains that on several occasions, her supervisor Charles Wind made derogatory comments about the predominantly black university she attended, printed jokes and pictures of naked women, placed the pictures on her desk, and made comments about the women's breasts.
On a motion for summary judgment, the law requires the Court to consider the evidence and draw all reasonable inferences in favor of Scott-Riley, the non-moving party. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must look at the evidence "as a jury might, construing the record in the light most favorable to the non-movant and avoiding the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
1. Americans With Disabilities Act
The ADA provides disabled persons with two principal workplace rights. The first prohibits employment discrimination against a qualified individual with a disability. 42 U.S.C. § 12112(a). The second requires employers to provide reasonable accommodations to individuals with a disability who are otherwise qualified to perform their job. 42 U.S.C. § 12112(b). To establish a violation of either right, a plaintiff must prove that she is disabled within the meaning of the ADA. Id.
The term "individual with a disability" includes persons who are actually disabled, those who are regarded as disabled, and those who have a record of being disabled. 42 U.S.C. § 12102(2). The disability, whether actual or perceived, must substantially limit the plaintiff in a major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). Scott-Riley claims that she qualifies as a disabled person under the ADA because she had an actual disability that substantially limited a major life activity, or alternatively, because Mullins Food perceived her to have such a disability. The Court assesses Scott-Riley's condition at the time of the adverse employment action--October 2002--see, e.g., Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996), and at the time of the failure to accommodate--March 2002. Hoeller v. Eaton Corp., 149 F.3d 621, 624 (7th Cir. 1998).
Scott-Riley claims she was disabled because she had difficulty climbing stairs, walking, driving, and caring for herself. In her deposition, however, she admitted that in 2001 she stopped having trouble taking care of herself and began driving on her own. By her own admission, then, she was not disabled in the major life activities of driving and caring for herself in 2002. Scott-Riley also claims that she was disabled in the major life activity of walking and cites an August 2002 doctor's note that states, "[Scott-Riley] cannot climb stairs regularly only when she feels comfortable doing so due to history of ankle burn." She also testified that she had difficulty walking "long lengths." This evidence is insufficient to permit a reasonable jury to find that Scott-Riley had a disability based on a limited ability to walk. See Puoci v. City of Chicago, 81 F. Supp. 2d 893, 896-97 (N.D. Ill. 2000) (plaintiff who walked with a limp, had pain and discomfort when walking on soft surfaces, experienced numbness and fatigue in his right leg and thigh when walking, had difficulty climbing stairs, but did not use a cane or a crutch and had no medical restrictions on walking, did not have a disability under the ADA); Banks v. Hit or Miss, Inc., 996 F. Supp. 802, 806-07 (N.D. Ill. 1998) (plaintiff who had corrective surgery on both feet, could only walk short distances, had chronic foot pain, ...