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Mitter v. County of Dupage

United States District Court, N.D. Illinois, Eastern Division

January 24, 2016

COUNTY OF DUPAGE, as an indemnitor, DR. BLAIN CUSACK, DUPAGE COUNTY SHERIFF'S OFFICE, and JOHN ZARUBA, in his official capacity as DuPage County Sheriff, Defendants.


          Andrea R. Wood United States District Judge.

         Plaintiff Hannah Mitter worked as a registered nurse at the DuPage County Jail (“Jail”) from 2001 until she was fired in 2011. At the time of her termination, Mitter, a Korean-American woman, was 60 years old and suffered from extreme sensitivity and allergic reactions to perfumes and other scented substances. She claims that she was fired not for performance-related reasons but because of her disability, national origin, sex, and age. She has sued her employer, Defendant DuPage County Sheriff's Office (“Sheriff's Office”), for the alleged discrimination pursuant to the American with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e. In addition, Mitter seeks to hold accountable the Sheriff's Office and Defendant Blain Cusack, who worked as a dentist at the Jail, for alleged assault and intentional infliction of emotional distress. Before the Court is Defendants' motion for summary judgment on all claims. For the reasons explained below, the motion is granted in part and denied in part.[1]


         Mitter was hired by the Sheriff's Office as a Floor Nurse at the Jail in 2001. (Def. R. 56.1 Stmt. (“Def. SOF”) ¶ 3, Dkt. No. 107.) Mitter is Korean-American and was 60 years old when she was terminated by the Sheriff's Office in 2011. (Pl. R. 56.1 Stmt. (“Pl. SAF”) ¶ 3, Dkt. No. 110.)

         In 2002, Lisa Zegar became the Health Care Administrator for the Jail, a position which included responsibility for overseeing the health care of all inmates within the Jail. (Def. SOF ¶ 5.) Zeger did not have the authority to hire and fire employees-only the Sheriff had such authority. (Id. ¶ 6.) Zegar could, however, make recommendations to terminate employees. (Id. ¶ 7.) To make such a recommendation, Zegar would author a report to her direct supervisor, Don Knoll. (Id. ¶ 8.) The Sheriff's Office follows a progressive discipline policy for all employees. (Pl. SAF ¶ 39.)

         While working for the Sheriff's Office, Mitter was recognized as employee of the month and employee of the year and was considered an experienced nurse. (Id. ¶¶ 2, 3.) Even so, Zegar ultimately decided to recommend that Mitter be terminated and wrote a memorandum to Knoll regarding concerns with Mitter's performance. (Def. SOF ¶ 10.) After Zegar made her recommendation, Sheriff John Zaruba decided to terminate Mitter. (Id. ¶ 12.)

         Mitter was terminated on June 14, 2011. (Id. ¶ 14.) While discussing her termination, Knoll read to Mitter from a sheet of paper that Mitter did not see. (Id.) Mitter claims Knoll told her that she was being terminated for medication errors, untruthfulness, and swearing. (Pl. Resp. to Def. R. 56.1 Stmt. (“Pl. RSOF”) ¶ 33, Dkt. No. 110.) But the supervisor of the nurses at the Sheriff's Office was surprised by Mitter's termination-no one had reported to her that Mitter swore or was untruthful. (Pl. SAF ¶ 29.)

         Zegar did not witness any of the incidents that formed the basis of her recommendation that Mitter be discharged but instead accepted the reports of other staff members. (Def. SOF ¶ 49.) For example, Zegar received a complaint from a fellow nurse, Kathy Pava, that Mitter had yelled at and berated Pava in front of other staff members for being tardy. (Def. SOF ¶¶ 16, 35.) Zegar was also told that Mitter had belittled a new staff member during orientation and argued with a female officer. (Id. ¶ 34.) On one occasion, Mitter refused to assess an inmate due to the inmate's Breathalyzer test result and was accused of dishonesty in connection with it-the Sheriff's Office claims that Mitter knew that refusing to assess the inmate violated Jail policy, while Mitter denies as much. (Id. ¶ 40; Pl. RSOF ¶ 40.)

         In addition, Zegar's memorandum to Knoll recited that Mitter had made six medication errors while employed with the Sheriff's Office. (Def. SOF ¶¶ 17-18, 25.) Medication errors are relatively common at the Jail and generally do not give rise to discipline. (See Pl. SAF ¶ 33; Def. SOF ¶ 31.) Aside from her ultimate termination, Mitter was not otherwise disciplined for her medication errors. (Def. SOF ¶ 29; Pl. RSOF ¶ 29.)

         One time, after giving the wrong medication to an inmate, Mitter said “fuck, ” an incident witnessed by Deputy Strzelecki. (Def. SOF ¶ 19.) According to Zegar, a report of the incident indicated that the inmate became hysterical and began putting his fingers down his throat. (Id. ¶ 32.) Strzelecki requested that Mitter tell him what medications the inmate had ingested but Mitter refused, citing confidentiality concerns regarding violations of the Health Insurance Portability and Accountability Act. (Id. ¶ 21.) Zegar was not present for this incident and, although she claims to have been informed about it by deputies and through reports, she did not speak to any of the individuals who were present for the incident or wrote the reports about it. (Id. ¶ 24; Pl. SAF ¶ 31.) Swearing is relatively common at the Jail. (Pl. SAF. ¶ 38.) Zegar was aware that on one occasion, another nurse, Elizabeth Currie, was disciplined for using profanity with a final written warning from the supervisor of the nurses. (Def. SOF ¶ 30.)

         Although these instances are cited by the Sheriff's Office in explaining Mitter's termination, Mitter claims that she was actually terminated due to discrimination based on, among other things, her disability in the form of severe allergies. In 2008, Mitter began experiencing physical allergy symptoms that she believed were related to the use of “Christmas tree” air fresheners inside the Jail. (Id. ¶ 53.) In November 2008, after Mitter provided Zegar with a doctor's note, the air fresheners were no longer allowed to be sold in the Jail. (Id. ¶¶ 54-55.) A March 2009 memorandum from Knoll to Chief Scott Wulff indicated that Mitter had enumerated several items that aggravated her allergies in the workplace and that Mitter was told that the Sheriff's Office was concerned about her health and willing to make reasonable changes to enable her to perform her job duties. (Id. ¶¶ 56-57.) Mitter was tested for allergies in January 2010. (Id. ¶ 58.) A February 2011 letter from her doctor indicated that she was “highly sensitive to chemical vapor irritants such as bleach and volatile organic compounds (VOCs), ” which are emitted by thousands of products. (Id.) Mitter then met with her supervisors to discuss her request to remove problematic allergens from her work area, but she was told that accommodations could not be made until she provided a note from her physician indicating what was causing her allergic reactions. (Id. ¶¶ 59-60.) It does not appear that any further action was taken to address Mitter's concerns regarding her allergies after this meeting. (Pl. SAF ¶ 21.)

         According to Mitter, one of the main causes for her allergic reactions at work was the actions by a dentist at the Jail, Dr. Blaine Cusack, a contract employee. (Pl. SAF ¶ 9.) Zegar asked Cusack to stop using fragrances, air fresheners, unapproved cleaning supplies, and natural products in the Jail because Mitter was allergic to them. (Id. ¶ 11.) Cusack, however, testified that he did not know Mitter had any problems with allergies and further that he was asked only to stop hanging fragrance-soaked gauze. (Id. ¶¶ 12-14.) Nonetheless, according to Mitter, Cusack purposefully sprayed cologne and other fragrances in the area in which she worked and left out other vapor-emitting substances (although she did not actually see him or anyone else do so). (Def. SOF ¶¶ 62-64, 66-68, 70-71.) In addition, Mitter claims that Cusack made sounds like “woo, woo, woo, woo” about her. (Id. ¶ 65.)

         In further support of her claims that the Sheriff's Office discriminated against her, Mitter points to a number of employees who she believes were similarly situated to her in that they also made medication errors. (Id. ¶¶ 41, 43.) Mitter claims that these employees were treated differently than she because they were not Korean, disabled, or as old. (Id. ¶¶ 41, 46, 48.) As to one of those employees, Steve Obey, Mitter also claims he was treated differently because he is a male. (Id. ¶ 57.) Mitter does not know, however, whether any of the allegedly similarly-situated employees had engaged in conduct similar to that of which she was accused in Zegar's memorandum. (Id. ¶ 43.) For example, although Obey made two medical errors in two days, Mitter admits that Obey was never accused of saying “fuck, fuck, fuck” or anything similar after making a medication error and that she does not know whether he was ever accused of belittling a staff member or dishonesty. (Id. ¶¶ 37-39, 40.) According to Zegar, she was unaware of any other nurses who engaged in conduct similar to that for which she recommended Mitter's termination. (Id. ¶ 36.)

         After her termination, Mitter filed a charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission (“EEOC”), and she eventually brought the present lawsuit here. In her suit, Mitter claims that the Sheriff's Office discriminated against her and failed to accommodate her disability, in violation of the ADA (Count I); discriminated against her based on her national origin and sex, in violation of Title VII (Counts II and III); and discriminated against her based on her age, in violation of the ADEA (Count IV). Mitter also asserts claims against the Sheriff's Office and Cusack under Illinois state law for assault (Count V) and intentional infliction of emotional distress (Count VI).[2]


         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Gross v. PPG Indus., Inc., 636 F.3d 884, 888 (7th Cir. 2011). In assessing whether the movant is entitled to summary judgment, all reasonable inferences from the evidence presented must be drawn in favor of the nonmoving party. McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “The initial burden is on the moving party . . . to demonstrate that there is no material question of fact with respect to an essential element of the non-moving party's case.” Cody v. Harris, 409 F.3d 853, 860 (7th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If the moving party meets this burden, the non-moving party must submit evidence that there is a genuine issue for trial.” Id. “The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party.” Delta Consulting Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009).

         I. Discrimination Claims

         With respect to her various discrimination claims, Mitter may meet her burden of proof using either the “direct” or the “indirect” method. See Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014); Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013) (in responding to a summary judgment motion, a plaintiff “must initially identify whether [she] is litigating [her] case under a ‘direct' or an ...

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