The opinion of the court was delivered by: Herndon, Chief Judge:
Now before this Court is defendant's motion for summary judgment (Docs. 31 & 35) and plaintiff's rule 7.1(h) motion for oral argument (Doc. 36). For the following reasons, defendant's motion for summary judgment is GRANTED in part and DENIED in part, and plaintiff's motion for oral argument is DENIED as moot. Specifically, the only portion of the Complaint for which summary judgment is DENIED is the failure to promote theory of Count II's retaliation claim.
Plaintiff's complaint contains two counts and each count is supported by two separate theories. Count I alleges disability discrimination evidenced by a failure to promote plaintiff and constructive discharge of plaintiff. Summary judgment is granted on both theories because plaintiff has not suffered a disability as defined by the ADA. Summary judgment is further appropriate on the constructive discharge theory of Count I because plaintiff has presented no evidence of the kinds of "intolerable conditions" required for constructive discharge.
Count II alleges retaliation for the plaintiff's charges of discrimination filed with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR") evidenced by a failure to promote plaintiff and constructive discharge of plaintiff. Summary judgment is granted on the constructive discharge theory of Count II because, as in Count I, plaintiff has presented no evidence of the kinds of "intolerable conditions" required for constructive discharge. Summary judgment is denied on the failure to promote theory of Count II because there is a genuine issue of material fact as to whether defendant's failure to promote plaintiff was in retaliation for her filing the EEOC/IDHR charges.
I. Introduction & Background
On April 8, 2009, plaintiff Juliana Hensler filed a two-count complaint under the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., against defendant City of O'Fallon, Illinois (Doc. 2). O'Fallon filed an answer and affirmative defenses denying all material allegations (Doc. 8). Hensler alleges O'Fallon did not promote her or constructively discharged her because of her disability (Count I) or in retaliation for charges of discrimination filed by Hensler with the EEOC and the IDHR (Count II). Plaintiff alleges she filed a timely charge of discrimination with the EEOC and the IDHR, received a Notice of Right to Sue from both, and filed suit within 90 days from the receipt of those notices (Doc. 2).
Hensler was formally diagnosed with fibromyalgia in 2000 and with chronic fatigue syndrome in 2004.*fn1 She began working for O'Fallon as a part-time dispatcher in February 2002. From February 2002 until February 2004, Hensler worked six-hour shifts two days a week, occasionally filling in for other dispatchers, which sometimes required working twelve-hour shifts. In February 2004, Hensler gave her supervisor a note from her doctor indicating her condition precluded her from working twelve-hour shifts. Her request was accommodated and she did not work twelve-hour shifts. In September 2005, Hensler submitted a doctor's note indicating she could work an "occasional twelve-hour shift." She was then assigned to a permanent part-time schedule. In December 2006, Hensler was removed from the January 2007 work schedule. In January 2007, Hensler sought unemployment benefits. In February 2007, Hensler was back on the schedule, working two four-hour shifts per week. She informed O'Fallon of her desire to be promoted to full-time employment. In March 2007, dispatcher Tora Ouchie was promoted to a full-time position. On March 30, 2007, Hensler filed a charge of discrimination with the EEOC. In April 2007, a second full-time dispatcher position opened, a job that went to Valerie Hancock. Hensler filed a charge of discrimination, this time with the IDHR, on April 25, 2007. In October 2007, Hensler was interviewed for a third full-time dispatcher position, along with three other candidates. That position ultimately went to Shelley Rowe, who began that job in October 2007. During that same month, Hensler was scheduled to work three twelve-hour shifts unassisted. She submitted her letter of resignation on October 17, 2007.
B. Hensler's Medical Conditions
Hensler was formally diagnosed with fibromyalgia in 2000 and with chronic fatigue syndrome in 2004. In her deposition, Hensler affirmed that during the time she worked for O'Fallon as a dispatcher, she was able to care for herself; perform manual tasks; walk; see; hear; and speak. Hensler Dep. pp. 198-99. She did not have trouble breathing, difficulty learning, or difficulty working. Id. at 199.
In an affidavit attached to Hensler's Reply to defendant's motion for summary judgment (Doc. 34-10), Hensler states that as a result of the fibromyalgia and chronic fatigue syndrome, she was "chronically fatigued and in significant pain" on a daily basis (¶ 4). She affirms these conditions "substantially interfered" with her ability to "move around, walk without pain, wake from sleep feeling refreshed, exert [her]self, stay awake, remain alert after twelve hours, sleep, and engage in recreational activities." Id. at ¶ 5. Further, these conditions "resulted in constant fatigue, muscle aches, and joint pain that made it difficult" for Hensler "to move around and ambulate without pain." Id. at ¶ 10.
As a general rule, a party may not create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony. Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Supplemental affidavits may be employed to clarify ambiguous or confusing deposition testimony. Id. In the context of opposing a motion for summary judgment, when a clear prior statement is contrasted with a later affidavit and the affidavit appears to be an effort to contradict the effects of deposition testimony and establish a missing link, a district court can rationally decide to strike the affidavit. See id. at 293 (affirming the district court's striking of an affidavit contradicting earlier deposition testimony and attempting to establish causation). Because Hensler's affidavit appears to be an effort to contradict her deposition testimony and establish a missing link of being substantially impaired in a way that constitutes a disability under the ADA, her affidavit will be stricken and not considered for summary judgment purposes.