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Edwards v. Illinois Department of Financial and Professional Regulation

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

September 22, 2016



          Honorable Marvin E. Aspen United States District Judge

         Presently before us is a motion for summary judgment filed by Defendant Illinois Department of Financial and Professional Regulation (“IDFPR”), seeking judgment on Plaintiff Fascia Edward's (“Plaintiff”) claims against it. Plaintiff alleges that Defendant discriminated against her on the basis of disability, age, race, and sex, and retaliated against her for reporting the alleged discrimination, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq., and Section 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”). For the reasons set forth below, we grant Defendant's summary judgment motion in part and deny it in part.


         We begin with the pertinent facts. Unless otherwise noted, the facts described herein are undisputed and culled from the parties' Local Rule 56.1 statements of fact and exhibits. (See Def. Rule 56.1 Statement of Facts, (Dkt. No. 144) [hereinafter Def. SOF]; Pl. Rule 56.1 Statement of Facts, (Dkt. No. 159) [hereinafter Pl. SOF].) To the extent that either party objected to certain statements of fact or exhibits, we shall rely on admissible evidence only for the purposes of our analysis. See, e.g., Hemsworth v. Quotesmith Com., Inc., 476 F.3d 487, 490 (7th Cir. 2007) (“The evidence relied upon in defending a motion for summary judgment must be competent evidence of a type otherwise admissible at trial.”). We decline to address objections specifically unless warranted.

         I. Facts

         a. General Background Plaintiff Fascia Edwards, an African-American female, began working at the Illinois Department of Financial and Professional Regulation (“IDFPR”) on December 1, 2008 when she was transferred from the Illinois Department of Human Services in lieu of layoff. (Def. SOF ¶ 11.) Plaintiff was a member of the AFSCME union and as a union member was entitled to a transfer to another union position in the case of agency layoffs. (Id. ¶ 12.) Plaintiff transferred to an Executive I position working in the IDFPR records room. (Id. ¶ 11.) Plaintiff's job duties included maintaining the public index, supervising the individuals in the file room, responding to requests from attorneys for files or documents, and responding to subpoenas. (Id. ¶ 14.) When Plaintiff started at IDFPR, she was the working supervisor for temporary employees also assigned to the records room. (Id. ¶ 18.) Plaintiff's immediate supervisor was John Lagattuta (“Lagattuta”), a Chief Administrative Judge for IDFPR. (Id. ¶ 10.) As her immediate supervisor, Lagattuta was responsible for assigning and reviewing Plaintiff's work, preparing, conducting and signing performance evaluations, and recommending disciplinary action. (Id.) Lagattuta did not have the authority to hire, fire, demote, suspend or issue discipline for Plaintiff. (Id.) Lagattuta was also not in charge of returning Plaintiff to work after a leave of absence. (Id. ¶ 77.) Instead, human resources functions such as returns from leave were delegated to Administrative and Regulatory Shared Services (“A & R Shared Services”). (Id. ¶ 8.)

         b. Plaintiff's Discipline at IDFPR

         Within the first month of her employment with IDFPR, Plaintiff received four charges[1] of insubordination from Lagattuta.[2] (Id. ¶ 29.) She was disciplined for playing her radio without headphones, for refusing to sit in her assigned work area, for sending an unauthorized email unilaterally changing records room policies and for staying on IDFPR premises past 6:00 p.m. (Id. ¶¶ 30-32, 42.) Aside from these charges against Plaintiff, Lagattuta has never brought disciplinary charges against any other employee throughout his career at IDFPR. (Id. ¶ 9) Plaintiff's union steward, Chuck Rocek (“Rocek”), testified that in his experience, he had never seen an Executive I supervisor disciplined for the type of conduct Plaintiff was disciplined for. (Pl. SOF ¶¶ 51-57.) Along with these charges of insubordination, various employees in the records room reported Plaintiff to Lagattuta[3] for allegedly inappropriate behavior throughout December 2008.[4] (Id. ¶¶ 35-39.) On January 16, 2009, Lagattuta notified Plaintiff that discipline was being contemplated for conduct unbecoming of a State worker and for violations of the IDFPR Policy and Procedure Manual. (Id. ¶ 28.) On January 28, 2009, a pre-disciplinary hearing was held regarding Plaintiff's alleged misconduct. (Id. ¶ 47.) Plaintiff's union representative presented a rebuttal concerning the discipline recommended for Plaintiff on February 5, 2009. (Id. ¶ 49.) Four days later, Plaintiff requested disability leave, tolling the time to issue any discipline following a pre-discipline hearing. (Id. ¶ 51.) After Plaintiff's leave terminated on June 26, 2009, Lagattuta recommended a three-day suspension for Plaintiff. (Id. ¶ 52.) On July 1, 2009, Plaintiff was served with her three-day suspension, left early that day, and never returned to work at IDFPR. (Id. ¶¶ 53-54.)

         c. Plaintiff's Hostile Work Environment Claims

         Just three days into Plaintiff's employment at IDFPR, a temporary employee in the records room, Brad Egger (“Egger”), arranged magnets on the records room door that spelled “REDRUM.” (Id. ¶ 58.) Plaintiff alleges that she removed the magnets once and Egger replaced the magnets by spelling “REDRUM” again. (Pl. Decl., Pl. Ex. 11 (Dkt. No. 172-1) ¶ 7.) Plaintiff interpreted “REDRUM” as a threat; “redrum” spells “murder” backwards. (Edwards Dep. (Dkt. No. 144-1) at 127.) Plaintiff believed Egger was directing the message at her because she was the only African-American female supervisor in the records room. (Def. SOF ¶ 56.) Plaintiff reported this incident to Lagattuta and requested that Egger be removed from the records room. (Id. ¶ 62.) Edwards met with her union representative and IDFPR general counsel on December 8, 2008, was informed that Egger had been removed from the records room, and was told to contact general counsel if she had any more problems. (Id. ¶ 61.) Egger wrote a statement concerning the incident; Eggers said that he thought the word “REDRUM” came from a book about a guy who as a little bit crazy and that Eggers did not aim the message towards anyone. (Def. SOF ¶ 59.) On December 8, 2008, Lagattuta requested that Edwards write up the incident and come in to meet with Lagattuta. (Id. ¶ 62.) Edwards emailed Lagattuta a statement on December 30, 2008. (Id.) In her statement, Edwards acknowledged that IDFPR conducted and completed an investigation into the incident. (Id.) Edward's statement did not include any complaints regarding discrimination. (Id.) Despite being removed from the records room, Plaintiff alleges that Egger continued to visit the records room and that she continued to feel unsafe in the records room even after Egger was removed. (Pl. SOF ¶¶ 45, 76.) Defendant, on the other hand, alleges that Plaintiff indicated that she did not need to be removed from the records room as a result of the Egger's incident and that as of January 12, 2009, Plaintiff acknowledged that there were no racial tensions in the records room. (Def. SOF. ¶¶ 63, 66.) It is undisputed that when asked if she would like to sit in a separate area from those she supervised, Plaintiff indicated that she would remain in the records room because “the trouble source [was] moved.” (Id. ¶ 63.)

         Along with the “REDRUM” incident, on January 13, 2009, Lagattuta learned that a second temporary worker in the records room, Stephanie Berliant (“Berliant”), had made three disparaging remarks about Plaintiff, including calling her “crazy.” (Def. SOF ¶ 67.) Lagattuta investigated these allegations and found that the comments did not warrant discipline. (Id. ¶ 68.)

         Months later, in June 2009, Plaintiff reported “work-place safety” concerns to Carolyn Hodge Brown, Deputy Chief of Staff for Governor Pat Quinn. (Id. ¶ 70.) Ms. Hodge informed Plaintiff that she should contact her EEO officer with these concerns. (Id.) The parties dispute whether Plaintiff contacted her EEO officer. (See id.; Pl. Resp. Def. SOF ¶ 69.)

         In a July 1, 2009 email to Lagattuta, Plaintiff requested to be relocated from the records room because she claimed: (1) she did not feel safe in the records room; (2) she was previously injured in the records room; and (3) she was uncomfortable with Egger visiting the area and felt that she was being subjected to a hostile work environment. (Id. ¶ 70.)

         d. Plaintiff's Back Injury and Request for Accommodation

         On June 22, 2009, Plaintiff suffered a back injury on the job from allegedly lifting heavy binders and boxes. (Id. ¶ 72.) Plaintiff immediately sought emergency medical attention and was diagnosed with a herniated disk. (Id.) Plaintiff's physician, Dr. Pompilia Tudoriu (“Tudoriu”), released Plaintiff to work on June 24, 2009. (Id. ¶ 73.) On July 8, 2009, Plaintiff requested ordinary disability for authorized leave until notification was received from workman's compensation. (Id. ¶ 80.) Attached to the request, Dr. Tudoriu submitted a physician's statement on Plaintiff's behalf indicating that Plaintiff was permanently and totally disabled from employment and incapable of minimal sedentary activity. (Id.) Plaintiff's leave was approved and she was informed that she was expected to return on August 9, 2009 with a statement signed by her physician that she was cleared to return without limitation. (Id. ¶ 81.) Defendant alleges that Plaintiff was informed that if she wished to receive a reasonable accommodation, she should complete a “Reasonable Accommodation Request.” (Id.) Plaintiff denies this allegation. (See Pl. Resp. Def. SOF ¶ 81.)

         On August 6, 2009, days before Plaintiff's initial leave was set to expire, Dr. Tudoriu submitted a second letter to human resources stating that Plaintiff was no longer permanently and totally disabled from any employment, but was still temporarily totally disabled from her current occupation. (Id. ¶ 82.) The note also indicated that Plaintiff had severe limitations of functional capacity and was incapable of all sedentary activity. (Id. ¶ 82.)

         Plaintiff's leave was subsequently extended on August 10, 2016 and set to expire on October 9, 2009. (Id. ¶ 83.) Like in response to Plaintiff's first request for leave, Defendant alleges that Plaintiff was informed that if she required accommodation, she should file a request along with the appropriate paperwork. (Id.) Plaintiff again denies these allegations. (See Pl. Resp. Def. SOF ¶ 83.) Plaintiff extended her leave for a second time on October 5, 2009. (Def. SOF ¶ 84.) She informed the human resources department that she was unable to return to work on October 9, 2009 and would be continuing therapy, per her doctor's orders. (Id.) Two weeks later, on October 20, 2009, Dr. Tudoriu submitted a physician's statement saying that Plaintiff was permanently and totally disabled from her regular occupation. (Id. ¶ 85.)

         On October 15, 2009, Plaintiff requested an Alternative Employment Program (“AEP”) application. (Id. ¶ 99.) AEP is a program administered by the Department of Central Management Services to find alternative employment for employees on approved leave which permanently and totally precludes them from their current position.[5] (Id. ¶ 94; Decl. Jaci Debrun, Def. Ex. 38 (Dkt. No. 144-3).) As a part of her application, Plaintiff signed a “Reasonable Accommodation Certification, ” that stated she was on disability leave and was unable to return to her position of Executive I Supervisor because of her disability. (Id. ¶ 100.) At the bottom of the form, Plaintiff noted “As of 10-29-09, [n]o full time, lateral position offered to me nor any consultation conducted with me by ADA Coordinator. Please contact by email or phone to schedule ADA interview.” (Def. Ex. 42 (Dkt. No. 144-3).) Defendant contends that by signing this form, Plaintiff acknowledged that accommodation at the Executive I position was attempted and deemed not plausible. (Def. SOF ¶ 100.) Plaintiff argues that she signed the form simply because it was required for admission to AEP and denies that she was offered accommodation by IDFPR, as evidenced by her note at the bottom of the page. (Edwards Dep. at 271-72.) Defendant argues that the “Reasonable Accommodation Certificate” is not a general request for accommodation but specifically applies to a request for accommodation through AEP. (Def. SOF ¶ 100.) Plaintiff was admitted into AEP on July 9, 2008. (Id. ¶ 101.) Plaintiff alleges that after being admitted into AEP, her doctor authorized her return to the Executive I position in June 2010, September 2010 and October 2010. (Id. ¶ 102.) In Dr. Tudoriu's July 17, 2010 physician's statement, Dr. Tudoriu noted that “patient may return to work with accommodation.” (See Dkt. No. 172-2 at 3.) Defendant has submitted inconsistent testimony concerning whether a doctor, as opposed to an employee, may request a reasonable accommodation for a patient. (See Gold Dep. (Dkt. No. 172-11) at 15:11-15; Kirk Dep. (Dkt. No. 144-2) at 101:5-7.) Plaintiff was not provided a position or income through AEP. (Pl. Decl. ¶ 11.)

         e. Plaintiff's Union Grievances and Charges of Discrimination

         In February 2009, Plaintiff filed a union grievance related to her job duties in the records room, specifically alleging that Lagattuta altered her job duties. (Def. SOF ¶ 25; Def. Ex. 14 (Dkt. No. 144-3).) Her union grievance does not allege discrimination or mention that she was required to engage in heavy lifting. (See Def. Ex. 14.)

         Plaintiff filed three charges of discrimination with the EEOC. Plaintiff filed her first charge on February 9, 2009 alleging discrimination, hostile work environment and retaliation based on race and sex. (Def. SOF ¶ 103.) Plaintiff did not allege disability discrimination in her February 2009 charge. Plaintiff amended her initial charge on September 29, 2011, alleging that in retaliation for her February 2009 complaint, her wages had been docked and she had been denied reinstatement following disability leave. (Id. ¶ 104.) Plaintiff filed a second EEOC charge on October 11, 2011, this time alleging disability discrimination, age discrimination and retaliation under the ADA and ADEA. (Id. ¶ 105.) Plaintiff alleged that Defendant failed to reinstate her due to her age and disability but did not state that Defendant failed to provide a reasonable accommodation. (Id. ¶ 105; Def. Ex. 45 (Dkt. No. 144-3).)


         Summary judgment is proper only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue for trial exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The standard places the initial burden on the moving party to identify those portions of the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this burden of production, the nonmoving party “must go beyond the pleadings” and identify portions of the record demonstrating that a material fact is genuinely disputed. Id.; Fed.R.Civ.P. 56(c).

         In deciding whether summary judgment is appropriate, we must accept the nonmoving party's evidence as true and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 244, 106 S.Ct. at 2513. We do not “judge the credibility of the witnesses, evaluate the weight of the evidence, or determine the truth of the matter. The only question is whether there is a genuine issue of fact.” Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009) (citing Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (citation omitted).


         Plaintiff alleges discrimination under the ADA, ADEA, Title VII and the Rehabilitation Act. To proceed under all four federal statutes, a plaintiff must first file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the offending conduct. Accordingly, we first consider whether Plaintiff's claims are properly before us before continuing on to analyze the merits of any remaining federal claims.

         I. Exhaustion of Administrative Remedies

         In Illinois, an individual complaining of discriminatory conduct under the ADA, ADEA, Title VII or the Rehabilitation Act, must file a complaint with the EEOC within 300 days of the alleged unlawful conduct. See 42 U.S.C. § 2000e-5(e); see also Hentosh v. Herman M. Finch Univ. of Health Servs., 167 F.3d 1170, 1173 (7th Cir. 1999); see also Snider v. Belvidere Township, 216 F.3d 616, 618 (7th Cir. 2000) (affirming district court's finding that plaintiff's Title VII claim was time-barred when the complaint was not filed with the EEOC within 300 days); Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 637 (7th Cir. 2004) (applying the same 300 day time period to claims brought under the ADEA and ADA); Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009) (holding that claims brought under the Rehabilitation Act are subject to the exhaustion requirements outlined in Title VII). Failure to do so renders the complaint untimely and the claimant is precluded from bringing an action in court “unless the claim is reasonably related to one of the EEOC charges and can be expected to develop from an investigation into the charges actually raised.” Green v. Nat. Steel Corp., Midwest Div., 197 F.3d 894, 897 (7th Cir. 1999).

         a. Plaintiff's ADA Claims

         Defendant argues that Plaintiff's ADA claims should be dismissed because they are untimely and because Plaintiff's reasonable accommodation claim was not included in her EEOC charge. (Mem. ISO MSJ (Dkt. No. 143) at 3-5.) i. Timeliness of ADA Claim Defendant asserts that the alleged discriminatory act triggering Plaintiff's ADA claim, denial of reinstatement, occurred more than 300 days prior to the filling of her EEOC charge. (Mem. ISO MSJ at 4.) Defendant alleges that Plaintiff claims she could have been rehired on October 2010, more than 300 days prior to her charge. (Id.) Plaintiff argues that she continued to seek reemployment with Defendant via physician's statements from her doctor through July 17, 2010. (Resp. (Dkt. No. 164) at 4.) Based on this conflicting testimony, we find that there is a genuine issue of material fact as to when the alleged discriminatory act occurred, and thus, we may not dispose of Plaintiff's claims at this stage. Flannery, 354 F.3d at 641. ii. Scope of EEOC Charge Having addressed Defendant's timeliness argument, we next consider whether Plaintiff's ADA claim is foreclosed for failure to include it in her EEOC charge. In her October 11, 2011 EEOC charge, Plaintiff stated: “I believe I have been discriminated against because of my disability, and in retaliation, ” in violation of the ADA. (See Def. Ex. 45 (Dkt. No. 144-3).) In the October 11 charge, Plaintiff also alleges that “Respondent has refused to reinstate me.” (Id.) Nowhere does Plaintiff state that she was denied a reasonable accommodation.

         Courts in this circuit are clear: a claim for failure to accommodate is separate and distinct under the ADA from a disability discrimination claim. Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997); Green, 197 F.3d at 897; Giovanni v. Megabus USA, LLC, No.14 C 3195, 2015 WL 6449133, at *4 (N.D. Ill. Oct. 23, 2015). Plaintiff does not deny that she did not explicitly articulate a failure to accommodate claim in her EEOC charge. (See Resp. at 9.) Instead, she argues that Plaintiff “could expect that the reasonable accommodation issue would be investigated as an outgrowth of her claim that respondent had refused to reinstate her.” (Id.) Whether or not a reasonable accommodation claim is sufficiently related to a discrimination claim turns on the circumstances surrounding the failure to accommodate claim. See Davis v. Am. Drug Stores, No. 01 C 3704, 2003 WL 21149063, at *3 (N.D. Ill. May 19, 2003) (holding that failure to accommodate and disability discrimination claims were “inextricably intertwined” because “the decision to discharge plaintiff was, in effect, a refusal to provide her the accommodation” she requested); Ortiz v. Bd. of Educ. of City of Chi., No. 11 C 9228, 2013 WL 3353918, at *5 (N.D. Ill. July 2, 2013) (denying defendant's motion to dismiss for failure to exhaust administrative remedies because it was “not unreasonable to think an investigation into [plaintiff's] termination would grow into an investigation of the alleged failure to provide a reasonable accommodation); Morales v. Goodwill Indus. of Se. Wisconsin, Inc., No. 14 C 2370, 2014 WL 4914255, at *4 (N.D. Ill. Sept. 30, 2014) (finding that plaintiff's failure to accommodate claim was reasonably related to her EEOC disability discrimination charge because defendant's alleged failure to ...

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