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Harris v. Proviso Area for Exceptional Children

September 29, 2008


The opinion of the court was delivered by: Hon. Rebecca R. Pallmeyer


From August 22, 2001 until April 12, 2005, Arlesta Harris ("Plaintiff") was employed by the Proviso Area for Exceptional Children ("Defendant" or "PAEC") as a substitute teacher pursuant to yearly contracts. On April 12, 2005, PAEC announced it would not renew Plaintiff's contract after the conclusion of the 2004-2005 school year. Plaintiff claims that Defendant's failure to renew her contract was a product of discrimination on the basis of a disability that affects her spine, neck, and legs. In this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Plaintiff alleges that PAEC failed to accommodate her disability and retaliated against her on the basis of her disability (Count I); retaliated against her for exercising her rights under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and for participating in a United State's Department of Labor investigation (Count II); and denied her right to leave under the FMLA (Count III).

Defendant now moves for summary judgment on all counts. For the reasons set forth below, the motion is granted.


Defendant is an Illinois special education cooperative under the Illinois School Code, 105 ILCS 5/1-1 et seq., serving six school districts in Illinois. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue ¶ 1 (hereinafter "Def. LR 56.1 Stmt."); Smith Dep. at 6-8.)

The cooperative operates PAEC High School, a school that serves students with emotional and behavioral disorders as well as students with physical and cognitive disabilities. (Def. LR 56.1 Stmt ¶ 1; Smith Dep. 10:7-19.) As part of its services to students, Defendant employs permanent substitute teachers who fill in for absent special education teachers or are assigned to teach in their own special education classrooms. (Smith Dep. 14:19-24, 15:6-12.)

A. Permanent Substitute Teachers at PAEC

Permanent substitute teachers at PAEC work with students who often become "highly aggressive, sometimes physically aggressive." (Smith Dep. 15:21-22.) As a result, in addition to the requirement that they maintain valid teaching certificates, permanent substitute teachers must attend and participate in yearly training on how to manage and confront students when needed. (Def. LR 56.1 Stmt. ¶ 2; Smith Dep. at 16-18, 54-57). This training prepares teachers to manage students in "escalated" situations. (Smith Dep. 15:18-24.) Permanent substitute teachers attending these sessions undergo training in "behavioral management," including how to manage aggressive students, the proper way to use physical restraint to take students "down to the ground or to the floor and [be] held on the floor," and how to work with other staff members to secure a student "and hold [him or her] in a safe way . . . " (Id. at 15-17.) Permanent substitute teachers also are required periodically to remain for 90 minutes after a regular school day to receive supplementary and refresher training on the proper ways to handle students in difficult situations. (Id. at 17.) The use of force to perform physical interventions or restrain a student is referred to as a "take down." (See id. at 15-18.)

Plaintiff denies that PAEC teachers were required to perform physical interventions with students without assistance. (Plaintiff's Response to Defendant's Rule 56.1 Statement ¶ 2 (hereinafter "Pl. LR 56.1 Resp.") She contends that Defendant's standard practice was to provide two paraprofessionals to assist classroom teachers with interventions. (Id.; Plaintiff's Rule 56.1(b)(3)(c) Statement of Additional Uncontested Facts That Require Denial of Summary Judgment ¶ 11 (hereinafter "Pl. LR 56.1 Stmt."); Pl. LR 56.1 Resp. ¶ 2; Harris Dep. at 171.) She also denies that all PAEC teachers are required to participate in physical interventions with students. (Pl. LR 56.1 Resp. ¶ 2.) The job description for a permanent substitute teacher at PAEC, however, lists the following "[e]ssential job duties and responsibilities":

Leads homeroom staff in implementation of the academic and/or behavioral programming outlined in the students' IEP . . . . Provides team leadership in developing appropriate alternatives to inappropriate behaviors . . . . Provides classroom leadership in the implementation of the confrontation continuum in a consistent and creative manner . Complies with the mandatory requirements for use of physical intervention pursuant to [Illinois regulations] . . . Directs the use of verbal confrontation and/or physical containment as needed. (Ex. 16 to Blair Dep.)

The Alternative Program Employee Handbook ("Employee Handbook") states that staff "are to implement the behavior management plan using . . . [p]hysical intervention." (Ex. 22 to Harris Dep.) The Handbook directs that "when a student's behavior becomes dangerous to himself/herself, and/or other individuals, it is necessary for the staff to physically manage the behavior." (Id.)

Permanent substitute teachers are employed under one-year contracts for the duration of each school year. (See Harris Dep. at 102-04; Ex.'s 23-25 to Harris Dep.; Smith Dep. at 27-29.) After the completion of each school year, Defendant sends each permanent substitute teacher a notice of non-renewal, effectively terminating the teacher's employment. (Smith Dep. at 27-29; Harris Dep. at 102-04.) Defendant then rehires some permanent substitute teachers, making the determination of its needs for staff based on the number of students enrolled, the need for permanent substitute teachers to work in programs or cover classrooms, and input from supervisors and principals. (Smith Dep. at 27-29.)

B. The 2003-2004 School Year

Plaintiff was hired as a permanent substitute teacher by Defendant and began work on August 22, 2001. (Def. LR 56.1 Stmt ¶ 3.) She received disciplinary write-ups in October 2001, December 2002, and December 2003, but none resulted in suspension, demotion, transfer, or the loss or pay or benefits. (Id. at ¶ 7) Between August 2001 and June 2004, Plaintiff's one-year employment contract was non-renewed each year, but she was later reinstated for the following school year. (Id. at ¶ 6.)

Early in 2003, Plaintiff began treatment for back trouble. On February 17, 2003, she was treated at Oak Park Hospital for lower back pain and diagnosed with lower back pain and sciatica. (Id. at ¶ 8.; Harris Dep. at 29-32; Ex.'s 5-6 to Harris Dep.) Dr. Blair testified that an individual with sciatica could be incapable of lifting up to thirty pounds, though he did not specifically say that Plaintiff herself was unable to do so. (Blair Dep. at 181-82.) Records of Plaintiff's examination show that she had "[n]ormal bony structures. No evidence of fracture or dislocation. Soft tissues are unremarkable." (Ex. 5 to Harris Dep.) Defendant claims it was not notified of this hospital visit; Plaintiff denies this, but neither side cites any evidence on the issue. (Def. LR 56.1 Stmt ¶ 8; Pl. LR 56.1 Resp. ¶ 8.)

On April 1, 2003, Defendant did receive a handwritten note from Dr. Keith Callahan, who saw Plaintiff on a follow-up visit and advised that Plaintiff had "low back pain and should not do any heavy lifting more than 5 pounds." (Def. LR 56.1 Stmt ¶ 9; Harris Dep. at 211-12; Dr. Callahan Note, Ex. 59 to Harris Dep.)

Several months later, on November 10, 2003, Plaintiff was injured during a physical "take-down" of a student in her classroom. (Harris Dep. 217-18; Employee's Report of Injury, Ex. 60 to Harris Dep.) In that incident, a paraprofessional in Plaintiff's classroom tried to take down a student who was grasping onto a desk. (Id.) Plaintiff did not intervene but did call for a team to support the paraprofessional. (Harris Dep. 218:5-12.) In the struggle, the student threw a desk, which struck Plaintiff, who was standing to one side, and threw her to the ground. (Harris Dep. 217-18). Plaintiff filed an incident report on November 12, stating that a "student kicked me in the lower abdomen while spitting in my face. . . . During a physical intervention requiring immediate assistance (Safety/First) I was hit by a student's desk -- causing me to fall backward." (Harris Dep. 215-18; Ex. 60 to Harris Dep; Def. LR 56.1 Stmt ¶ 10.)

On November 22, 2003, Plaintiff sought treatment at West Suburban Hospital for injuries from the incident. (Ex. 20 to Blair Dep.; Def. LR 56.1 Stmt ¶ 10.) Plaintiff was diagnosed with "abdominal pain" and discharged in "good condition" with instructions to follow up with a primary care physician. (Ex. 20 to Blair Dep.) On November 25, 2003, Plaintiff had a follow-up evaluation by Dr. Kenneth Blair of West Suburban Hospital, who became her primary care physician. (Def. LR 56.1 Stmt ¶ 11; see Progress Notes, Ex. 47 to Harris Dep.) Dr. Blair observed abdominal swelling and discomfort, aggravating Plaintiff's sciatica. (Ex. 47 to Harris Dep.; Def. LR 56.1 Stmt ¶ 11.) Plaintiff rated her pain at five on a zero-to-ten scale. (Blair Dep. at 90-91; Ex. 47 to Harris Dep.; Def. LR 56.1 Stmt ¶ 11.) Dr. Blair did not prescribe any medication or order any procedures; he did, however, recommend that Plaintiff take Motrin and use moist heat for any discomfort. (Blair Dep. at 97; Progress Notes, Ex. 47 to Harris Dep.; Def. LR 56.1 Stmt ¶ 12.) In a note authorizing Plaintiff to return to work on December 1, 2003, Dr. Blair cautioned that Plaintiff "should not be required to be in situations where physical restraint is required." (Blair Note, Ex. 61 to Harris Dep.)

In a further visit on December 18, 2003, Dr. Blair noted that Plaintiff was taking antibiotics for an inflammatory condition of the sweat glands, and that she appeared anxious and said she was attempting to avoid confrontation with students. (Ex. 47 to Harris. Dep.; Blair. Dep. 108, 110.) Dr. Blair recorded Plaintiff's pain level as three on the one-to-ten scale; he never again recorded a pain level above zero. (Ex. 47 to Harris Dep.; Def. LR 56.1 Stmt ¶ 39.) In the December 18 visit, Dr. Blair also noted that Plaintiff had some chronic obstructive pulmonary disease in her chest, would likely have some anxiety and depression issues, and had signs of hidradenitis suppurativa.*fn1 (Blair Dep. 114:5-10.; Ex. 47 to Harris Dep.) Dr. Blair directed that Plaintiff could return to work on January 5, 2004. (Blair Dep. 114:11-14; Def. LR 56.1 Stmt ¶ 13.) In response to a letter from PAEC asking whether Plaintiff was able to perform her job, Dr. Blair certified that Plaintiff was not able "to assume all job duties as specified in" her job description, and specifically that she "should not be involved with physical restraint." (Ex. 17 to Blair Dep.)

Both parties agree that "[d]uring the 2003-2004 school year, [Plaintiff] worked regularly and satisfactorily, attended classes at Dominican University, was able to drive herself to classes, sit at her desk and walk without assistance." (Def. LR 56.1 Stmt ¶ 14; Pl. LR 56.1 Resp. ¶ 14.) Plaintiff nevertheless contends she needed certain accommodations. (Pl. LR 56.1 Resp. ¶¶ 2, 17, 19.) Although she could not recall if she made a written request for accommodation apart from the doctor's notes, Plaintiff claims she made verbal requests to the Assistant Principal and Principal (Timothy Manning) of PAEC, asking that she not be required to participate in take-downs and that she be furnished with a cart to help her transport books from class to class. (Id.; Harris Dep. 106-09, 212-14.) According to Plaintiff, Defendant accommodated other employees in various ways, including reassignment to a new position for an individual who suffered from stress and alcoholism; providing machines to help a blind person transmit his lessons; excusing a male employee from participation in physical interventions; and providing a cart to assist other employees in carrying books. (Harris Dep. at 219-27.) Plaintiff also testified that she was required to participate in physical interventions (she could not recall how many) even after Defendant was aware of her restrictions. (Id. at 234-37.)

C. The 2004-2005 School Year

In June of 2004, Plaintiff applied for Social Security Disability benefits but was found ineligible because of her membership in the Teachers' Retirement System ("TRS"). (Def. LR 56.1 Stmt ¶ 15.) She later filed a workers' compensation claim against Defendant as part of her effort to recover disability benefits from TRS; that claim is still pending. (Id.; Harris Dep. at 68.) On July 16, 2004, Defendant sent a letter to Plaintiff assigning her as a permanent substitute teacher for the 2004-2005 school year and designating August 18, 2004 as her first day of work. (Ex. 3 to Smith Dep.) Plaintiff did not report to work on August 18, 2004, however, and did not work at all during the 2004-2005 school year. (Def. LR 56.1 Stmt ¶¶ 17, 18.; Pl. LR 56.1 Resp. ¶ 17.) On August 27, 2004, she sent a memorandum to Dr. Terry Smith (the Executive Director of PAEC) and Tim Manning (PAEC's Principal), stating that she was giving Defendant written notice of "medically necessitated" sick leave:

I am now and have been sick since the beginning (August 18, 2004) of this school term. As such, I have also been attempting by telephone to request sick leave. I remain under my doctor's care, and am still undergoing medical diagnosis and evaluation while awaiting prognosis for my illness as it regards returning to and performing duties in my job description. Again, I certify that I am unable to perform duties as outlined in my job description at this time. . . . I am requesting an appropriate statement from my physician that will substantiate the aforementioned medical condition and/or disability necessitat[ing] my absence and the anticipated date of return. (Ex. 4 to Smith Dep.) In her memorandum, Plaintiff represented that she would provide her physician's statement during the week of August 29, 2004. (Id.) Defendant, however, stated that it did not in fact receive this document until approximately September 22, 2004. (Def. LR 56.1 Stmt ¶ 20; Ex. 66 to Harris Dep.) On September 7, 2004, Timothy Manning (PAEC's Principal) wrote a letter to Plaintiff, noting that, despite having left messages regarding her absence from work, Defendant had not heard from Plaintiff since September 6, 2004 and she had missed the first fourteen days of the school year. (Ex. 63 to Harris Dep.) The letter directed that Plaintiff report for work by September 10, 2004 or submit a doctor's diagnosis explaining her absence. (Id.)

In a letter dated September 20, 2004, Plaintiff responded by observing that the Principal "does not regard the fact that I am unable to perform my job duties" and that "my physician's recommendations as it regards my present disability does not support my desire, nor your need for my return to the assigned position." (Ex. 64 to Harris Dep.) She requested extended sick leave without identifying the date on which she expected to return. (Id.) Attached to Plaintiff's September 20, 2004 letter was a September 8, 2004 letter from Dr. Michael Friedman addressed to Plaintiff, stating that she was undergoing additional tests for (undefined) "progressive problems" and should not return to work. (Id.) Dr. Friedman's letter characterized the length of Plaintiff's disability as "undetermined at the present time." (Id.)

On September 27, 2004 Plaintiff had an abscess on her left leg drained in an out-patient procedure at Oak Park Hospital. (Def. LR 56.1 Stmt ¶ 24.) The hospital noted that Plaintiff's past medical history included "sciatica, sleep apnea, and apparently some kind of a rhinitis that may or may not include sinusitis for which she is being treated by an ENT and an allergist." (Ex. 11 to Harris Dep.) Plaintiff testified that she was diagnosed with "MRSA" (which she defines as "Methicillin Resistant Staphylococcus aureus . . . an infectious disease") on September 27, 2004. (Harris Dep. 40-42; Def. LR 56.1 Stmt ¶ 25.) Oak Park Hospital records from September 27, 2004 reflect no such diagnosis, however. (Ex. 11 to Harris Dep.)

On September 27, 2004 Plaintiff met with Dr. Paul Ellstein, a licensed chiropractic practitioner. (Ellstein Progress Notes, Ex. 3 to Ellstein Dep.; Ellstein Dep. 12.) In his notes from that visit, Dr. Ellstein wrote that Plaintiff had lumbalgia (low back pain), myofascitis (muscle pain), segmental dysfunction, and evidence of nerve root irritation. (Ex. 3 to Ellstein Dep.) After a full examination, Dr. Ellstein observed that Plaintiff had "normal ranges of motion of the cervical spine" but a reduced range of motion in her neck, and concluded that she was a candidate for chiropractic treatment. (Ellstein Dep. at 39-40; Ex. 3 to Ellstein Dep.; Def. LR 56.1 Stmt ΒΆΒΆ 28, 29.) Plaintiff consulted with Dr. Jenkins of Oak Park Hospital on September 29, 2004; neither the reasons for nor any diagnosis from this visit are in the record. (See Ex. 30 to Blair Dep.) Also on September 29, 2004, Defendant notified Plaintiff that as of September 30, 2004, she was being placed ...

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