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McKay v. Vitas Healthcare Corporation of Illinois

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

February 7, 2017

JACQUELYN MCKAY, Plaintiff,
v.
VITAS HEALTHCARE CORPORATION OF ILLINOIS, Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, District Judge

         Jacquelyn McKay is a former employee of Vitas Healthcare Corporation of Illinois. McKay has filed suit against Vitas, alleging discrimination, retaliation, and the creation of a hostile work environment in violation of both the Americans with Disabilities Act (ADA) and the Illinois Human Rights Act (IHRA). McKay has also alleged age discrimination in violation of the Age Discrimination in Employment Act (ADEA). Vitas has moved for summary judgment on all seven of McKay's claims. For the reasons stated below, the Court grants Vitas's motion.

         Background

         The Court takes the following facts from the parties' briefs on summary judgment. When facts are in dispute, the Court takes those facts in the light most favorable to McKay.

         Vitas is a Delaware corporation that provides hospice and palliative care in and around Chicago. McKay worked for Vitas in Lombard as a patient care secretary from December 2002 until she was terminated on June 2014. When she applied to work at Vitas in 2002, she did not indicate that she had a disability or that she required an accommodation. Around April 2011, however, McKay was diagnosed with tinnitus, which is the perception of noise or ringing in the ears. This makes it difficult for her to hear in loud environments. McKay testified that her work environment at Vitas was loud and that she suffered from impaired hearing while at work. During her employment with Vitas, McKay did not take any medication or undergo medical treatment to alleviate this condition, nor did she wear hearing aids. She also testified that she had no difficulty performing any of her job duties at Vitas.

         Both McKay and her co-workers recognized that she had difficulty hearing while at work. McKay's supervisor, Victoria Chrysokos, noticed that McKay was having trouble hearing and that sometimes McKay would not hear her, even at a distance of two or three feet. McKay also told Chrysokos that she had trouble hearing the telephones, particularly when there was background noise. The other patient care secretaries often asked McKay why she did not answer the phone, and she frequently had to ask them to repeat themselves. McKay never contacted anyone at Vitas to request an accommodation for her tinnitus.

         McKay contends that, over the course of her time at Vitas, the other patient care secretaries began to discriminate against her due to her impaired hearing. McKay states that Christina Saldana would make loud comments in an irritated tone about McKay's inability to hear the others. Saldana would allegedly laugh at McKay or pound on her desk if McKay asked Saldana to repeat herself. McKay also states that the other patient care secretaries made derogatory comments about her based on her age. McKay told Chrysokos, her supervisor, that she felt she was being harassed based on her inability to hear properly. As a result, Chrysokos had a conversation with the other secretaries about the fact that they did not get along with McKay. Despite this, McKay says, the behavior persisted. In one particular incident in February 2014, McKay turned down the ringer of a phone that was bothering her. Saldana allegedly stated, "Why do you care? You can't hear anything half the time anyway." On April 17, 2014, McKay reported this incident to Kelly Moriarty, one of Vitas's human resources employees, as evidence of discrimination and harassment. Moriarty contacted Kellie Newman, a patient care administrator, who informed Moriarty that she had already spoken with the secretaries about their behavior.

         Vitas determines the size of its labor force based on a patient census. When patient census is low, it typically implements a reduction in force. In the spring of 2014, Vitas determined that it would need to implement a reduction in the Lombard office where McKay worked. Vitas decided to eliminate one individual from each of the following positions: team manager, social worker, chaplain, and patient care secretary. Vitas's policy requires the company to consider performance first and seniority second when making termination decisions. Vitas asked Moriarty to recommend a patient care secretary for termination. Moriarty testified that she evaluated the personnel files of five patient care secretaries, looking specifically at the warnings (known as corrective actions) each employee had received and the scores from their most recent performance evaluations. McKay had six corrective actions in her file, five of which she received between 2009 and 2014. One other secretary had two corrective actions and the remaining three had none. McKay also had the lowest performance appraisal score. Her score was 2.2; the other secretaries' scores fell between 2.6 and 3.0. Of the five secretaries, McKay had worked at Vitas the longest, at least six more years than each of the other secretaries. Based on this evaluation, Moriarty decided to recommend McKay for termination. Vitas terminated McKay on June 6, 2014. At that time, McKay was the oldest patient care secretary.

         McKay filed suit against Vitas asserting seven claims based on discriminatory behavior. In counts 1 and 4, McKay alleges that Vitas discriminated against her due to her disability in violation of the ADA and the IHRA. In counts 2 and 6, McKay alleges that Vitas terminated her as retaliation for her complaint of harassment in violation of the ADA and the IHRA. McKay alleges in counts 3 and 5 that she was subjected to a hostile work environment while at Vitas in violation of the ADA and the IHRA. Finally, in count 7, McKay alleges that Vitas discriminated against her based on her age in violation of the ADEA.

         Discussion

         Summary judgment is appropriate when there is no issue of material fact such that the movant is entitled to judgment as a matter of law. Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012). Facts are viewed in the light most favorable to the non-moving party. Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002). Summary judgment is appropriate when no reasonable factfinder could find in favor of the non-moving party. Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th Cir. 2012).

         Both parties agree that claims brought under the IHRA are governed by the same standards as claims under parallel federal discrimination statutes. See Def.'s Mem. in Supp. of Mot. for Summ. J. at 14-15; Pl.'s Resp. at 15; Owen v. Dep't of Human Rights, 403 Ill.App.3d 899, 918, 936 N.E.2d 623, 639 (2010). The Court therefore considers similar ADA and IHRA counts together for the purpose of summary judgment.

         I. Counts 1 and 4

         In counts 1 and 4, McKay alleges that Vitas discriminated against her based on her disability in violation of the ADA and the IHRA. McKay appears to allege that Vitas discriminated against her in two ways: by failing to reasonably accommodate her tinnitus and by treating her differently than non-disabled employees. To prevail, McKay first must show that she is disabled within the meaning of the ADA. See Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 813 (7th Cir. 2015); Bunn v. Khoury Enters., ...


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