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Moore-Fotso v. Board of Education of City of Chicago

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

September 29, 2016

DOROTHY A. MOORE-FOTSO, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Defendant Board of Education of the City of Chicago's motion for summary judgment [99]. For the reasons set forth below, Defendant's motion [99] is granted.

         I. Background

         The Court takes the relevant facts from the parties' Local Rule 56.1 statements: (1) Defendant's Rule 56.1(a)(3) Statement of Undisputed Material Facts [80]; (2) Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Additional Material Facts Requiring Denial of Defendant's Motion for Summary Judgment [91]; (3) Plaintiff's Response to Defendant's Rule 56.1(a)(3) Statement of Undisputed Facts [92]; and (4) Defendant's Response to Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Additional Material Facts [102]. The Court construes the facts in the light most favorable to the nonmoving party-here, Plaintiff. Before discussing those facts, the Court turns to the requirements of Local Rule 56.1.

         A. The Parties' Statements of Facts

         Local Rule 56.1 requires a party moving for summary judgment to submit a statement of material facts as to which the movant contends there is no genuine issue and entitles the movant to judgment as a matter of law. The “movant's 56.1(a) statement should contain only factual allegations” and “be limited to material facts, that is, facts pertinent to the outcome of the issues identified in the summary judgment motion.” Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). The rules require that the movant set forth those material facts in “short numbered paragraphs” that “should contain only one or two individual allegations.” L.R. 56.1(a); Malec, 191 F.R.D. at 583. “Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.” L.R. 56.1(a).

         Local Rule 56.1 also requires the nonmovant to file (1) a “concise response” to the movant's statement of facts containing “any disagreement, specific references to the affidavits, parts of the record, and other supporting materials”; and (2) a statement “consisting of short numbered paragraphs” of additional facts that require the denial of summary judgment. L.R. 56.1(b)(3). “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” L.R. 56.1(b)(3)(C). “A general denial is insufficient to rebut a movant's factual allegations; the nonmovant must cite specific evidentiary materials justifying the denial.” Malec, 191 F.R.D. at 584. Rule 56.1(b)(3)(C) is not satisfied by “purely argumentative denials, ” id., or “evasive denials that do not fairly meet the substance of the material facts asserted, ” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). Absent prior leave of the Court, the nonmovant is limited to no more than 40 separate statements of additional facts. L.R. 56.1(b)(3). The movant “may submit a concise reply” in response to those additional facts that satisfies the same requirements as the nonmovant's response. L.R. 56.1(b)(3), 56.1(a).

         Neither Plaintiff nor Defendant complied with these requirements. Rather than seek leave to file an additional number of “short” paragraphs, each party combined their factual statements into lengthy paragraphs-some as long as 15 sentences. Several statements of material “fact” include argument and unsupported assertions. “The purpose of the 56.1 statement is to identify for the Court the evidence supporting a party's factual assertions in an organized manner[;] it is not intended as a forum for factual or legal argument.” Malec, 191 F.R.D. at 585. Perhaps because of the length and complexity of the parties' L.R. 56.1 Statements, both parties fail to admit or deny the facts set forth by the opposing side with any consistency. Instead, they repeatedly offer argumentative or evasive responses or obfuscate an admitted fact by burying it among other additional facts. Both parties “move to strike” portions of their opponent's L.R. 56.1 Statement in their responses, lodging evidentiary objections and objections under Federal Rule of Civil Procedure 26. Yet, neither party discusses the import of these objections in their summary judgment memoranda. These tactics violate L.R. 56.1.

         Nonetheless, the Court will exercise its discretion in the direction of leniency and consider Plaintiff's and Defendant's 56.1 statements and responses that arguably meet the requirements of the local and federal rules. Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (making clear that, although district courts have discretion to require strict compliance with Rule 56.1, “[i]t does not follow * * * that district courts cannot exercise their discretion in a more lenient direction”). The Court carefully reviews the parties' statements of material facts and eliminates from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004). The Court's scrutiny of material statements of facts applies equally to the party seeking summary judgment and the party opposing it. Where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court does not consider that statement.

         See L.R. 56.1; see also Malec, 191 F.R.D. at 583-85. Where a party has denied a statement of fact improperly by failing to provide support for the denial, the Court deems that statement of fact to be admitted. See L.R. 56.1(a), 56.1(b)(3)(B); see also Malec, 191 F.R.D. at 584. Any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay, are not based on personal knowledge, are irrelevant, are based on declarations from witnesses not properly disclosed under Federal Rule of Civil Procedure 26, or are not supported by citation to evidence in the record are not considered by the Court in ruling on Defendant's motion.

         B. The Facts

         Dorothy Moore-Fotso (“Plaintiff”) first began working as a substitute teacher for the Board of Education of the City of Chicago (“Defendant”) in 1993 and became a full-time teacher in 1996. Plaintiff is certified to teach both general and special education students and has teaching certifications in several math-related subjects. Of relevance to this dispute, Plaintiff taught at John Hope College Preparatory School (“Hope”) from at least 2005 through 2008, George Henry Corliss High School (“Corliss”) from 2008 through 2010, George Washington High School (“Washington”) for 13 days in September and October 2011, and Gwendolyn Brooks College Preparatory Academy School (“Brooks”) for nine days in October and November 2011. Since August 2012, Plaintiff has worked as a day-to-day substitute teacher.

         Plaintiff also suffers from several chronic medical conditions, including cervical spinal stenosis, asthma, chronic obstructive pulmonary disease, diabetes, and coronary artery disease. According to Plaintiff, she cannot stand or sit for an extended time, has difficulty bending and stooping, has a limited ability to descend and ascend stairs, and cannot be confined to rooms with carpeting or dust. Over the course of her career with Defendant, Plaintiff requested several accommodations under the Americans with Disabilities Act (“ADA”) related to these conditions. This case relates to Defendant's alleged failure to provide one of those accommodations.

         1. Hope (2005 through 2008)

         When Plaintiff worked at Hope between 2005 and 2008, she requested that Defendant provide certain accommodations under the ADA. These included dictation software, a printer, a scanner, two types of projectors, a HP compact business notebook, an ergonomic roller mouse and mouse station, toner cartridges, air purifiers with filters, and use of the school's elevator. [80, at Ex. X, Attach. 1.] Defendant provided all of these accommodations.

         For a time at Hope, Plaintiff taught from one classroom. On October 25, 2005, Plaintiff requested an “inclusion”-that is, a teaching schedule that required her to travel between multiple classrooms in a school day rather than be confined to a single “self-contained” classroom. [80, at Ex. W, Attach. 3.] Plaintiff explained that this assignment would “require[] constant movement which facilitates an increase in blood flow and thereby minimize[s] the retention of fluid in [her] feet, legs, heart, and lungs.” Id. In particular, Plaintiff stated that her primary care physician had advised that “movement is best for my heart” and “[t]o change [her] assignment from inclusion to self-contain would be a determent to [her] health which is a contradiction to the purpose for [her] accommodations.” Id. In March 2006, Plaintiff was reimbursed for a cart she purchased, which allowed her to move teaching materials such as course books and calculators between classrooms.

         On September 19, 2006, Plaintiff requested assignment as a Collaborative Teaching Team (“CTT”) teacher at Hope. [80, at Ex. B.] CTT was a national instructional model used in Defendant's schools that enabled general and special education teachers to teach students together in a classroom. Under the CTT model, special education teachers are required to travel to different classrooms to teach students with learning disabilities. Plaintiff testified that she served as a CTT teacher for special education students at Hope. [See 91, at Ex. 1, 95:22-96:1.]

         2. Corliss (2008 through 2010)

         In July 2008, Plaintiff transferred from Hope to Corliss to work as a general education teacher and was assigned to teach math during the 2008-2009 school year. Her initial schedule required her to teach from five classrooms, but it was later changed to only two rooms. Plaintiff moved her teaching materials between classrooms on a cart and Defendant provided her with a cabinet for storage in at least one classroom. [91, ¶ 14.]

         On September 16, 2008, Defendant's Equal Opportunity Compliance Office (“EOCO”) sent Plaintiff a letter about her ADA accommodations based on her new assignment to Corliss. [80, at Ex. X, Attach. 1.] The letter stated:

Since we are not aware of the specifics of your classroom setting at Corliss, please contact this office if you require any new, additional or modified reasonable accommodations to address the limitations cited in your previous requests. Upon receipt, we will initiate the standard interactive process as we have done in the past to determine if a reasonable accommodation can be provided.

Id. This letter, however, was sent to Plaintiff's previous address and she did not receive it.

         During her first school year working at Corliss, Plaintiff struggled with the requirement that employees demonstrate 98 percent attendance and punctuality. In that year alone, Plaintiff was absent 31 days and tardy 47 days. Corliss' then-principal, Anthony Spivey, sent Plaintiff warnings about her attendance on December 18, 2008, and March 24, 2009. Despite these warnings, Plaintiff's attendance did not improve. Between March 24 and June 5, she was absent 13 days and tardy five days. On June 5, Plaintiff received notice of a pre-disciplinary hearing on her attendance, which was held on June 11. At the hearing, Plaintiff stated “there was no excuse for the tardiness” but the absences “were due to ADA related illness.” [91, at Ex. 50.] Principal Spivey suspended Plaintiff for three days without pay.

         At the start of the 2009-2010 school year, Plaintiff continued her assignment as a general education math teacher working from two classrooms. On October 8, 2009, Plaintiff submitted an accommodation request for white boards, a strong steel cabinet, assignment to “one main classroom to avoid moving equipment via cart, ” an aide to assist with lab cart maintenance, and air purifiers. [91, at Ex. 34.] According to Plaintiff, teaching in one classroom would have allowed her to “maintain and secure her teaching materials, ” avoid “transporting materials” between classrooms, “set up her air purifiers in the room in the manner that would provide her with the most benefit, ” have “control over the physical layout of the class” and “her movements in teaching, ” and have a “safer and more stable environment in which to work.” [90, at 4-5.]

         The following day (October 9), Defendant sent Plaintiff a letter about her requested accommodations and asked Plaintiff to complete three forms, including a health care provider certification form. [80, at Ex. D.] The letter stated, in bold, underlined, and larger font, that “review of your request will not start until we have received all three [3] completed forms.” Id. Plaintiff did not submit a health care provider certification form in response to this request. She did send a letter on October 19, 2009, reiterating her requested accommodations and asking Defendant to let her know if it needed “additional medical documentation to replace prior accommodations.” [91, at Ex. 35.]

         Despite not receiving Plaintiff's health care provider certification form, a representative from the EOCO engaged with Plaintiff about her accommodations. Plaintiff was provided with air purifiers in each classroom where she worked, whiteboards, overhead projectors, filing cabinets (although Plaintiff argues these cabinets were not “secure, ” as she requested), and elevator access. When the laptop that Defendant provided as an accommodation required repairs in January 2010, Defendant took steps to repair it. [92, at Ex. E.] Plaintiff also purchased a task chair and cart for herself, which she continued to use to move materials between classrooms. Plaintiff was not, however, granted an accommodation to work from one main classroom.

         In November 2009, Plaintiff was assigned to teach CTT math classes as a special education teacher. At first, Plaintiff's CTT schedule required her to travel between two classrooms approximately 259 feet apart on the same floor. In December, her teaching schedule changed and she was assigned to three classrooms on two different floors. On January 4, 2010, her schedule changed again and she was assigned to more than five classrooms per day-all on the second floor. In her response, Plaintiff states, “[a]lthough it was not a one-room setting, [she] would have been satisfied to remain in the regular education math position she occupied prior to the transfer to the CTT position.” [90, at 9.]

         On January 21, 2010, Plaintiff submitted a note from her doctor explaining that Plaintiff “has difficulties navigating stairs, antalgic gate secondary to pain [walking in a certain way to avoid pain] and cannot stay seated or stand for prolonged periods.” [80, at Ex. W, Attach. 1.] The physician requested that Plaintiff be allowed to “vary her seated/standing positions” and that Defendant “consider these conditions to make accommodations.” Id. The letter did not specifically reference an accommodation to teach from one classroom or arrive late to work.

         Plaintiff, however, continued to miss work at Corliss in the 2009-2010 school year. Between September 29, 2009 and February 1, 2010, Plaintiff was tardy 19 times and absent 13 days. On February 9, 2010, Principal Spivey sent Plaintiff a notice for a pre-disciplinary hearing. At her March 4, 2010 hearing, Plaintiff stated that “her preexisting medical condition [was] complicated by a change in schedule [that] caused her to be absent and tardy to work.” [80, at Ex. E, Attach. 6.] She further explained that “her condition has changed now that she has the proper equipment provided through [the] ADA” and “her attendance and punctuality has improved.” Id. Principal Spivey issued a five-day suspension without pay, which Plaintiff appealed. At the May 4, 2010 hearing on her appeal, Plaintiff stated that Defendant, “through the Americans with Disabilities Act[, had] provided air purifies for the school which has caused her health to improve” and that “as a result of her improved health, her attendance and tardiness has also improved.” [80, at Ex. E, Attach. 7.] Principal Spivey pointed out that in between her March 4 and May 4 hearings, Plaintiff was absent an additional five days and tardy an additional eleven times. Id. Accordingly, the panel upheld Plaintiff's suspension. Plaintiff received another pre-disciplinary hearing notice for the fifteen times she was tardy between March 4 and May 17, was suspended for ten days without pay, and appealed again.

         On May 3, 2010, Plaintiff's physician sent Defendant a health care provider certification form as part of a request for time off under the Family and Medical Leave Act (“FMLA”). [80, at Ex. Y.] Under “job functions the employee is unable to perform, ” the certification listed “prolonged walking, standing, sitting.” Id. The certification also stated that Plaintiff could not “ambulate due to pain, shortness of breath, and weaknesses of legs” during “flare-ups” of her condition. Id. On May 13, Defendant granted Plaintiff's FMLA request to be absent for up to four days each month, which she could take as either full or partial days off. [80, at Ex. H.]

         As part of Plaintiff's annual performance review, Principal Spivey observed Plaintiff's classroom performance on May 13, 2010. That day, Plaintiff arrived late to class and did not engage in instruction when she arrived. Instead, she “sat, doing nothing, for a while.” [80, ¶ 21.] Principal Spivey stated that he “saw no evidence of lesson plans or establishing a positive learning expectation for all the students and no evidence of cooperative teaching or [P]laintiff's applying contemporary principles of learning theory and teaching methodology.” Id. ¶ 20. He thought “there was very little attempt to support the students while [Plaintiff] was in the classroom, ” and even observed a confrontation between Plaintiff and another teacher. Id. ¶ 21. On May 17, Corliss' assistant principal also observed Plaintiff's classroom performance and concluded that she was not providing “differentiating” instruction-a requirement for teaching students with disabilities with individualized learning needs. Id. ¶ 24. The assistant principal relayed these observations to Principal Spivey.

         On June 1, 2010, Plaintiff received a teacher evaluation rating of “unsatisfactory” for the 2009-2010 school year. Her evaluation states that her “weaknesses” were (1) “Applying contemporary principles of learning and teaching methodology consistently”; (2) “Actively engages in school-wide professional development”; (3) “Sets standards for quality student work”; (4) “Exhibiting appropriate classroom management skills”; (5) “Clearly produces intended or desirable assessment results”; (6) “Does not maintain her attendance/punctuality in accordance with our local unit criteria”; and (7) “Consistently carry out daily routines and administrative request.” [80, at Ex. E, Attach. 13]. Four other Corliss teachers, none of whom had requested accommodations for a disability, also received an “unsatisfactory” rating that year.

         On June 15, 2010, Plaintiff provided Defendant with a two-paragraph letter from her physician stating that Plaintiff was suffering from an “exacerbation of her chronic conditions, ” which “occurred due to lack of appropriate accommodations at work as recommended previously.” [80, at Ex. AA.] The letter further stated that “[i]n order for the patient to perform her job duties with a substantial decrease in the number of days absent and/or tardy, the patient needs to have a work location in one classroom on the first floor.” Id. The last day of the school year was June 18, 2010.

         On June 23, 2010, Defendant adopted a city-wide resolution governing teacher layoffs. The resolution provides that schools were first required to lay off teachers lacking proper certifications and teachers rated “unsatisfactory” before considering teacher seniority. [80, at Ex. O, Attach. 1.] Due to a budgetary crisis, Defendant laid off over one thousand teachers that year. [102, at Ex. CC, ¶ 4.] When Corliss' budget for the upcoming year provided for two fewer special education teacher positions, Plaintiff and another teacher rated “unsatisfactory” were terminated. Her dismissal became effective on August 3, 2010.[1] [91, at Ex. 53.] Plaintiff was told that her position had been terminated for “economic reasons” [102, at Ex. CC, ¶ 3], and she admits that she “was chosen for layoff because she was in a position that lost population and Dr. Spivey had given her an ‘unsatisfactory' rating for the 2009-10 school year.” [91, ¶ 31.]

         3. Reassigned Teacher Pool (2010-2011)

         On August 26, 2010, Plaintiff filed a grievance regarding her termination with Defendant's Office of Employee Relations (“OER”). Plaintiff then filed a charge of discrimination against Defendant with the Equal Employment Opportunity Commission (“EEOC”) on November 8, 2010. [91, at Ex. 63.] In her EEOC charge, Plaintiff claimed that “during the 2009-2010 school year * * * [Plaintiff requested] accommodations for her disability * * * [including] allowing her to teach her students and classes in one classroom on the first floor of the building * * * [and] to start her first class no earlier than second period.” Id. The charge states that Defendant refused to accommodate Plaintiff's disability and “gave her an unsatisfactory performance evaluation based on alleged deficiencies that were either false, or due to [Defendant's] refusal to accommodate [Plaintiff].” Id. She also claimed that Defendant refused to accommodate her “as well as suspending her and lowering her performance evaluation, ” which were done “in retaliation for [Plaintiff] having previously filed a charge of discrimination with the EEOC.” Id. This “previous[]” charge refers to a 2004 EEOC charge that Plaintiff had filed against Defendant, which the parties settled on May 5, 2004. [102, at Ex. PP.]

         On December 15, 2010, the OER assessed Plaintiff's August 26 grievance and determined that Corliss' special education teacher budget had decreased, in fact, because its special education student population had declined. Under the terms of the Chicago Teachers Union's collective bargaining agreement (“CBA”), teachers displaced because of a decrease in student enrollment (rather than “economic reasons”) should be assigned to the Reassigned Teacher Pool (“RTP”) as full-time employees with full benefits. As a result, Plaintiff was retroactively reinstated in the RTP and provided with back pay to September 1, 2010. Pursuant to a settlement agreement between Defendant and Plaintiff's union on her behalf in February 2011, Plaintiff's ...


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