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Martin v. Discount Smoke Shop

July 5, 2006

HELEN MARTIN, PLAINTIFF,
v.
DISCOUNT SMOKE SHOP, INC., DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#13) filed by Defendant, Discount Smoke Shop, Inc. Following this court's careful consideration of the arguments of the parties and the documents provided by the parties, Defendant's Motion to Strike (#19) is GRANTED in part and DENIED in part, and Defendant's Motion for Summary Judgment (#13) is GRANTED.

FACTS*fn1

Plaintiff, Helen Martin, suffers from mild mental retardation. In 1987, Plaintiff sought assistance through the Developmental Services Center (DSC) to obtain a job. Plaintiff thereafter received assistance from DSC in obtaining employment, vocational counseling and job training. Plaintiff held various jobs she had obtained through DSC.

On August 17, 2001, Plaintiff submitted an application for employment with Defendant. She was interviewed that day by Judy Splittstoesser, the manager of Defendant's store on Prospect Avenue in Champaign, and by Karen Tatman, the assistant manager. On her application for employment, Plaintiff stated that she was a "slow learner." During her interview, Plaintiff informed Splittstoesser and Tatman that she was "mildly retarded" and had a job coach provided by DSC. Plaintiff told them that her job coach would come to the job site, watch Plaintiff perform her job and train Plaintiff on how to perform her job with Defendant. At the interview, Splittstoesser hired Plaintiff as a cashier and told Plaintiff that it was not a problem for Plaintiff to have a job coach help train her. Plaintiff's job coach at that time was Shae Ellington.

Plaintiff began her employment with Defendant on August 18, 2001. In her position as a cashier, Plaintiff's essential duties included interacting with customers in a friendly and efficient manner, completing sales transactions (including the collection of money and coupons from customers, making adjustments to the bill based upon the coupons, and calculating and returning change), operating the cash register and lottery machine, locating products for customers, pulling back stock, and cleaning the store. In her affidavit, Splittstoesser stated that, after she hired Plaintiff, Ellington called her and requested that she communicate all issues regarding Plaintiff's performance to Ellington, and not to Plaintiff.

Splittstoesser stated that cashiers at the store typically receive 12 hours of training. She stated that, normally, two employees were assigned to a shift at the store, but that, during training, three employees were assigned to a shift so that one employee could be responsible for training and overseeing the new employee. Splittstoesser stated that three employees were assigned to every shift Plaintiff worked. Splittstoesser further stated:

Based upon my personal observations and based upon reports that I was receiving from other employees, I concluded that [Plaintiff], despite her training, was not meeting expected standards of performance of the cashier position. Specifically, I determined that [Plaintiff] was having trouble checking out customers with more than one product (charging for only one of the products on several occasions), assisting more than one customer (appearing to become stressed, yelling at customers and/or running to the back of the store when faced with more than one customer), handling coupon transactions and providing the right change to customers. In addition, I also found that [Plaintiff] would begin to cry and become stressed if other employees attempted to assist her with her duties. In fact, on at least one occasion during her training, [Plaintiff] ran to the bathroom in an effort to compose herself after becoming stressed by her job duties.

Splittstoesser stated that she raised her concerns about Plaintiff's performance with Ellington, who then addressed the concerns with Plaintiff. Splittstoesser stated that, in her opinion, Plaintiff's work performance was not improving despite the assistance of her job coach. Splittstoesser therefore made the decision to terminate Plaintiff's employment. Plaintiff's last day of work was August 25, 2001. Plaintiff worked a total of 20. 25 hours for Defendant. According to Splittstoesser, Plaintiff was in training for all of these hours. Splittstoesser listed six other employees, who did not claim to be disabled, who were terminated by Defendant shortly after their employment began based upon similar performance issues. Defendant provided documentation regarding the employment and termination of these employees.

At her deposition, Plaintiff testified that she was diagnosed with mild mental retardation in kindergarten. She testified that she is a "very slow learner" and is "very slow at comprehending things." She stated that she is unable to comprehend or think quickly. She testified that she has to ask people to repeat what they are saying and ask them to go slow so she can understand what the person is saying. Plaintiff testified, however, that she graduated from high school, taking some special education classes and some regular classes. Plaintiff also testified that she reads books once or twice a month and is able to take care of herself and handle her own financial affairs. She testified that she has a driver's license and drives on her own.

Plaintiff provided this court with documentation from the DSC. These documents included an "Independent Living Skills Inventory" completed by Ellington on January 24, 2001. This inventory showed that Plaintiff received the highest available score of "4" regarding all of the assessed communication skills. A score of "4" means "does independently." According to this inventory, Plaintiff had a score of "4" on such skills as: following complex multi-step spoken directions; attending to and understanding simple conversation (2-3 minutes); participating in simple conversation with initiation, maintaining topic and taking turns; and using complete sentences with acceptable grammar and syntax. The inventory also stated that Plaintiff showed "evidence of reasoning and problem solving" and related "experiences/ideas in an organized, understandable manner." A February 8, 2001 assessment performed on Plaintiff by DSC staff indicated that Plaintiff had a high level of independence in many skill areas and had the ability to learn a wide variety of work skills. This assessment also stated that Plaintiff had good language comprehension and expression, though she could struggle with more complicated thoughts. An Individual Service Plan prepared by DSC dated February 27, 2002, stated that Plaintiff had good communication skills, could count money reasonably well and was capable of basic addition and subtraction.

Plaintiff testified that Karen Tatman trained her during her employment with Defendant and that Ellington was there some of the time as well. Plaintiff testified that Ellington was not allowed to stand with her behind the counter after her first day of employment. Plaintiff testified that she was able to perform all of her job duties satisfactorily prior to her termination and stated that Splittstoesser and Tatman told her she was doing a good job. However, Plaintiff also testified that she had some problems with coupons and the lottery machine. Plaintiff testified that she was being trained, at least "a little bit," the entire time she worked for Defendant. However, Plaintiff also testified that she received no training on the fourth and fifth day of her employment with Defendant. Plaintiff testified that she felt on her first and second day that she "knew [she] couldn't do it." She testified, "It was too quick. They were doing it too fast, trying to teach me everything too [fast]." Plaintiff testified that she told Splittstoesser that she needed more training, but Splittstoesser said they couldn't give her any more time. Plaintiff testified that she thought she needed about a month of additional training. Plaintiff testified that it was possible the decision to terminate her employment was made because she was not meeting Defendant's standards.

Following her termination, Plaintiff filed a charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission (EEOC). She stated in her charge that she was capable of performing the cashier position for Defendant with reasonable accommodations, but Defendant refused to allow her reasonable accommodations and terminated her because of her disability. On June 18, 2004, the EEOC issued a Notice of Right to Sue. Plaintiff filed her Complaint (#1) in this court on September 17, 2004. Plaintiff alleged that Defendant violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by terminating Plaintiff's employment and by refusing to make reasonable accommodations for Plaintiff's mental disability.

On May 1, 2006, Defendant filed its Motion for Summary Judgment (#13) and a Memorandum in Support (#14) with attached exhibits. On May 22, 2006, Plaintiff filed her Response to the Motion for Summary Judgment (#15) and attached exhibits. Defendant, on June 12, 2006, filed its Reply (#18), with attached exhibits, and a Motion to Strike (#19).

ANALYSIS

I. MOTION TO STRIKE

On June 12, 2006, Defendant filed a Motion to Strike (#19) and a Memorandum in Support (#20). Defendant argued that this court should strike Number 14 and Number 36 of Plaintiff's Statement of Additional Material Facts. Plaintiff's Fact Number 14 stated that the "plaintiff's academic functioning is at a third to fifth grade level in most areas and her comprehension skills are limited." In support of this fact, Plaintiff cited to a portion of the Individual Service Plan (ISP), dated February 27, 2002, which was completed by DSC. Defendant argued that this fact must be stricken because it constitutes expert testimony. Defendant argued that evidence regarding Plaintiff's level of academic functioning is clearly within the scope of Rule 702 ...


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