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Sharon Cosey v. Easter Seals Society Metropolitan Chicago

March 16, 2012

SHARON COSEY, PLAINTIFF,
v.
EASTER SEALS SOCIETY METROPOLITAN CHICAGO, INC, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

On April 23, 2010, plaintiff Sharon Cosey ("plaintiff") filed a two-count complaint [1] against her former employer, Easter Seals Society Metropolitan Chicago, Inc. ("Easter Seals"), alleging racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Easter Seals now moves for summary judgment [21] on both counts of plaintiff's complaint.For the reasons set forth below, Easter Seals' motion for summary judgment is granted.*fn1

I. Relevant Facts

A. Background

Easter Seals is an Illinois not-for-profit organization that provides comprehensive services for individuals with disabilities or other special needs and their families in order to improve quality of life and maximize the independence of these individuals. (Def.'s LR 56.1 Statement of Facts ("SOF") [22] ¶ 4.) Easter Seals operates the Autism Day School (the "School"), located in Tinley Park, Illinois. (SOF ¶ 5.) The School services autistic children from preschool through age 22. (SOF ¶ 6.) Maryellen Bucci ("Ms. Bucci") is the School's Program Manager. (SOF ¶ 7.) Similar to a school principal, she is responsible for the day-to-day operations of the School. (Id.)

Every student at the School is assigned to a classroom, and each classroom has a classroom teacher. (SOF ¶ 9.) Because of their disabilities, many of the students at the School require one-on-one assistance from an aid. (SOF ¶ 6.) These "1:1 aides" are assigned to one student and are generally with the student at all times while the student is at the School. (SOF ¶¶ 6, 12.) Their job is to assist the student in learning, protect the student, protect others from the student, and to provide assistance to the classroom teacher. (SOF ¶ 6.)Typically, each classroom has several 1:1 aides, in addition to the classroom teacher. (SOF ¶ 11.)

Plaintiff was employed as a 1:1 aide at the School from June 11, 2007 until she was terminated on October 28, 2008. (SOF ¶¶ 8, 13.) The June 11, 2007 letter setting out the terms of her employment stated that the employment relationship was "terminable at will, which means that either [plaintiff] or ESMC [Easter Seals] may terminate [plaintiff's] employment at any time and for any reason or for no reason with or without notice." (SOF ¶ 15; Ex. E to Bucci Aff. [22-1].)At the time she accepted the position, plaintiff signed three documents regarding her employment: 1) her job description, 2) the staff manual for the 2007-2008 school year, and 3) the School's Policy on Supervision and Accountability for Clients (the "Supervision Policy") (SOF ¶ 16.) The primary directive of the Supervision Policy is that "[e]ach staff member with direct responsibility for participants is responsible, at all times, for knowing the location and/or activity of all participants within his/her assigned group and ensuring the safety and well-being [of] each of those participants at all times." (Ex. C to Bucci Aff.) It also states that "[i]f a participant is unaccounted for at any time, staff members with direct or indirect responsibility should...notify the Program Manager/supervisor immediately and issue a 'Code Red/Missing Client.'" (Id.) The Supervision Policy provides: "[F]ailure to comply with any of the policies contained herein may result in discipline up to and including termination. Gross misconduct is grounds for immediate dismissal." (Id.) Plaintiff acknowledged in writing that she reviewed and understood the Supervision Policy and agreed to adhere to its provisions. (SOF ¶ 17.)

B. The September 18, 2008 Incident

On September 18, 2008, plaintiff was assigned as a 1:1 aide to Tyler, a fifteen-year old student at the School, who functions at the level of an 18-month old. (SOF ¶¶ 23-24.) Tyler is non-verbal and communicates by pointing at a picture book. (Id.) That afternoon, plaintiff took Tyler from the classroom to the occupational therapy room. (SOF ¶ 25.) When it was time to return to the classroom, Tyler left the occupational therapy room and turned to walk toward the front door of the school, rather than in the direction of the classroom. (SOF ¶ 26.) Plaintiff saw Tyler heading in the wrong direction, but turned back to pick up his picture book. (SOF ¶ 27.) Plaintiff then lost sight of Tyler and did not tell anyone or ask anyone for help. (SOF ¶ 28, Cosey Dep. Tr. [22-3] at 109.) Two other School employees, Carrie Slaymaker and Ann Nixon-Hammoudeh, saw Tyler leaving the building and saw that plaintiff was not with him or in the hallway behind him. (SOF ¶ 29; Bucci Aff. at ¶ 20; Ex. 3 to Pl's Br. [22-3], Slaymaker Aff at ¶¶ 5-8; Ex. 4 to Pl's Br. [22-3], Nixon-Hammoudeh Aff. at ¶¶ 5-8.) Once outside, Ms. Nixon-Hammoudeh saw Tyler walking away from the building. (SOF ¶ 30; Nixon-Hammoudeh Aff. at ¶¶ 5-8.) She called his name but he did not respond. (Nixon-Hammoudeh Aff. at ¶ 10.) When Tyler kept walking away from the building, she followed and intercepted him. (Nixon-Hammoudeh Aff. at ¶ 11.) After Ms. Nixon-Hammoudeh stopped Tyler, plaintiff exited the building, walked up to them and stated, "he runs so fast." (SOF ¶ 31; Nixon-Hammoudeh Aff. at ¶¶ 11-13.) According to Ms. Nixon-Hammoudeh, Tyler was not running when he left the building, and plaintiff later testified in her deposition that Tyler does not run. (SOF ¶¶ 32-33; Nixon-Hammoudeh Aff. at ¶ 14; Cosey Dep. Tr. at 108.)

After this incident, Ms. Bucci suspended plaintiff for three days for violating the Supervision Policy and placing a special needs student at risk. (SOF ¶ 34.) The dates of plaintiff's suspension were September 29, September 30 and October 1, 2008. Plaintiff was instructed to report back to work on October 2, 2008. (Id.) At her deposition, plaintiff admitted to her actions on September 18, 2008, and she agreed that her conduct was wrong. (SOF ¶ 35.) Her only objection to her suspension was that Ms. Bucci did not discuss the incident with her, but instead relied on the accounts of other employees. (SOF ¶ 36.)

Following her suspension, on October 2, 2008, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against Easter Seals, claiming that her suspension was an act of racial discrimination. (SOF ¶ 37.) As part of her complaint, plaintiff claimed that a white female teacher, Ms. Stephanie Abel, was not suspended after she had neglected a child under her care. (SOF ¶ 37; Compl. [1] Ex. A.) Ms. Abel was a classroom teacher and, on one occasion while her classroom 1:1 aides were at lunch, one of the students in her classroom left the School building. (Cosey Dep. Tr. at 126.) At her deposition, plaintiff stated that she was not aware of any disciplinary action against Ms. Abel, but she stated that it was possible that Ms. Abel was punished without her knowledge. (SOF ¶ 39; Cosey Dep. Tr. at 128.) She also testified that aside from her claim about Ms. Abel, she had no other proof to support her claim that her suspension was based on racial discrimination. (SOF ¶ 38; Cosey Dep. Tr. at 129.) In fact, Ms. Abel did receive a one-day suspension and a 30-day probationary period for her violation. (SOF ¶ 40.) According to Easter Seals, Ms. Abel was suspended for one day, rather than three, because (unlike plaintiff) she immediately reported the missing child to the administration. (Id.)

C. The October 22, 2008 Incident

A second incident occurred on October 22, 2008, shortly after plaintiff returned from her suspension. On that date, plaintiff was assigned as a 1:1 aide to a student in Ms. Susan Honn's classroom. (SOF ¶ 41.) There were seven students in this classroom, including Victor, who was 18-years old, non-verbal and functioned at the level of a 2-year old. (SOF ¶ 42.) Plaintiff was not Victor's 1:1 aide on this date. (Resp. to Pl's SOF ¶ 52.) At lunch time, plaintiff and two other aides (Tanya O'Connor and Ryan Rohloff) were instructed to bring Ms. Honn's entire class to the lunchroom and to supervise all seven students while they were there. (SOF ¶ 43.) Victor's 1:1 aide was not among the aides assigned to supervise the class in the lunchroom. (Rohloff Dep. Tr. [27-2] at 14, 15.) At some point during lunch, one of the aides gave Victor permission to go to the bathroom on his own. (SOF ¶ 44.) Plaintiff was not aware that Victor left the lunchroom unescorted. (Pl's Resp. to SOF ¶ 83.) A few minutes later, other School employees found Victor standing alone outside the bathroom. (SOF ¶ 46.) Because no one was watching him, they took Victor back to Ms. Honn's classroom. (Id.) Ms. Honn told them to return Victor to the lunchroom so that he could assist with the lunchroom clean up. (SOF ¶ 47.) At this point, plaintiff was still not aware that any of the students left the lunchroom or that Victor was no longer with the rest of the class. (SOF ¶ 48; Cosey Dep. Tr. at 143.)

Ms. Rohloff testified that it was a "routine occurrence" that Victor went to the bathroom unescorted. (Pl's Resp. to SOF ¶ 51; Rohloff Dep. Tr. at 19.) However, it was Ms. Honn's practice to allow students capable of walking without assistance to go to the bathroom unescorted, only if the aide maintained visual contact with the student while the student walked to and from the bathroom. (SOF ¶ 49; Ex. 5 to Pl's Br., Honn Aff. [22-3] at ¶ 13-14.) The aide was to watch the bathroom entrance to see when the student emerged and make certain that the student safely found his or her way back to the lunchroom. (Id.) In addition, Ms. Honn required that the aides assigned to her classroom "keep count[] of the students assigned to them and know the whereabouts of 'their' students." (SOF ¶ 50; Honn Aff. at ¶ 15.) Plaintiff does not dispute that it was her responsibility to keep count of the students that she and the other aides were responsible for in the lunchroom. (SOF at ¶ 53; Cosey Dep Tr. at 169.) She also does not dispute that on this particular date, they failed to so. (Id.)

Ms. Honn reported this incident to Ms. Bucci, who determined that the three aides (plaintiff, Ms. O'Connor and Ms. Rohloff) should be subject to disciplinary action based on their failure to supervise Victor. (SOF ¶ 56.) Because this was Ms. O'Connor and Ms. Rohloff's first violation of the Supervision Policy, they were each given a three-day suspension. (SOF ¶ 57.) Plaintiff was terminated. (SOF at ¶ 58.)

D. Easter Seals' Disciplinary Policies

According to Easter Seals, plaintiff was terminated because this was her second violation of the Supervision Policy, and it was school policy to terminate an employee for a second strike. (SOF at ¶ 58.) Ms. Bucci testified that typically a second strike will lead to termination, but it depends on the particular situation and the level of the infraction. (Bucci Dep. Tr. [27-1] at 73-74.) A four-level disciplinary policy now governs when an employee violates the Supervision Policy. (SOF at ¶ 60; Bucci Dep. Tr. at 73-76; Bucci Aff. at ¶ 41.) At Level 1, when a supervisor loses track of a student but the student is never unsupervised, a written warning is issued. (Id.)At Level 2, when a student is unsupervised and the supervisor is aware that the student is missing, reports this to others and is looking for the student, a one-day suspension is imposed. (Id.) At Level 3, when a student is unsupervised and the supervisor either is not aware that the student is missing or is aware and does not report it to the administration, a three-day suspension is imposed. (Id.) Finally, at Level 4, when a student is unsupervised and harms him or herself or others, or if the incident is a second violation of the Supervision Policy, the employee is terminated. (Id.)

This four-level policy is not in writing and Ms. Bucci is uncertain whether it was formally in place at the time of plaintiff's termination. (Pl's Resp. to SOF at ¶ 60; Bucci Dep. Tr. at 77-78.) However, according to Ms. Bucci, in the past, 21 employees (including plaintiff) have been disciplined for violations of the Supervision Policy. (Bucci Aff. ¶ 41.) All were disciplined consistent with these guidelines, with the exception of one 1:1 aide, who herself is disabled.*fn2 (Id.) Prior to terminating plaintiff, Ms. Bucci and other school administrators looked back to see what they had done previously in similar situations. (Bucci Dep. Tr. at 70-72, 79-80.) Aside from plaintiff, only one other employee has violated the Supervision Policy on two occasions. (SOF ¶ 64.) Brian Hanson, a white male teacher, received a three-day suspension for his first violation of the Supervision Policy, and was later terminated after a second violation. (Id.; Bucci Dep. Tr. at 81, 86-87.) As plaintiff points out, Easter Seals' records indicate that just prior to Mr. Hanson's second violation, there was a separate incident where a student in Mr. Hanson's classroom was missing. (Pl's Resp. to SOF ¶ 64.) This would suggest that Mr. Hanson may have been terminated after a third violation. However, it was unclear whether Mr. Hanson was to blame for this incident or whether that student's 1:1 aide had sole responsibility at the time the student wandered off. (Bucci Dep. Tr. at 87-88.) Ms. Bucci could not recall the specifics of this separate incident. (Bucci Dep. Tr. at 87-90.) At the time of plaintiff's termination, it was her recollection that the infraction which led to Mr. Hanson's termination was only his second violation, and she believed the School's treatment of plaintiff was consistent with this approach. (Id.)

E. Plaintiff's Job Performance and Prior Disciplinary Record

Plaintiff was reviewed in January of 2008 and received an A in the areas of Preparation, Presentation and Teamwork. (Resp. to SOF at ΒΆ 96.) She also received an A in the areas of Behavior Management, Organization, Learning Environment, Assessment of Student Performance and Reinforcement, and she received a 3% raise, which is typically given to ...


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