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Green v. Teddie Kossof Salon & Day SPA

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

July 26, 2017

JENNIFER GREEN, Plaintiff,
v.
TEDDIE KOSSOF SALON & DAY SPA, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff Jennifer Green's motion for partial summary judgment [144] and Defendant Teddie Kossof Salon & Day Spa's motion for summary judgment [145]. For the reasons set forth below, both motions [144; 145] are denied. This case is set for further status on August 22, 2016 at 9:30 a.m. to set a schedule for pre-trial filings and to discuss the possibility of settlement.

         I. Background

         The Court takes the relevant facts from the parties' Local Rule 56.1 statements [144-2; 147; 148; 151-1] and the summary judgment opinion by Judge Gottschall, who previously presided over this case [114]. Defendant Teddie Kossof Salon & Day Spa is located in Northfield, Illinois, and provides facials, massages, and body treatments for customers. In 2012 and 2013, Defendant employed five massage therapists, including Plaintiff Jennifer Green. Message therapists are paid a commission plus tips for their services and are scheduled to work in advance. Defendant requires its massage therapists to be physically at work during their scheduled shifts. [148, ¶¶ 8-10; 151, ¶¶ 8-10.] Defendant did not have a written sick leave policy. The customary practice was that an employee would call her manager if she needed a day off due to illness, and then staff would be reallocated if available.

         Plaintiff suffers from lumbar radiculopathy-a chronic condition causing episodic back pain. When this condition flares, Plaintiff has difficulty sleeping as well as walking, standing, or sitting for extended periods of time. These flare ups are unpredictable. And when she experienced the symptoms related to this condition, Plaintiff sometimes could not perform her duties as a massage therapist. [148, ¶ 22; 151, ¶ 22 (stating that she would not work when the pain was four or more on a scale of ten).][1] When Plaintiff showed up for work, however, Defendant concedes that Plaintiff provided the expected level of service to its employees. [148, ¶ 18.] She was never disciplined for performance-related issues and there was never any problem with her actual performance as a massage therapist when she came to work. Id.

         Nevertheless, Defendant contends that Plaintiff had a “habit of calling in sick to work shortly before her scheduled appointments were to begin.” [148, ¶ 24.] The only support Defendant cites for that proposition is an affidavit from Plaintiff's direct supervisor, Dorota Jedrzejek, which contains the identical statement without any further elaboration. [148-2, ¶ 16.] Not surprisingly, Plaintiff disputes that characterization. [151-1, ¶ 24.] She testified at her deposition that she did not think that she was “sick much at all.” [148-3, at 20 (77:23).] When she had to cancel appointments, it was often when she was “overbooked with sessions and [her] back would [become] aggravated, ” such as when she would have six sessions in a day and would be unable to make it past the fifth because of back pain. Id. at 77:24-78:3. When Plaintiff called in sick, another massage therapist would need to substitute in for her, and if no one was available, the appointment would be cancelled.

         Plaintiff was admitted to the emergency room on January 29, 2013, for complications related to an ovarian cyst. Plaintiff was prescribed medication for symptoms related to the cyst and was unable to predict the onset of those symptoms for the next few weeks. On February 18, 2013, Plaintiff was scheduled to work but informed Defendant that the cyst was causing her pain and exacerbating her lumbar radiculopathy. Plaintiff requested the day off, but Alan Kossof, who operates the spa, informed her that she either needed to come into work or apply for leave under the Family Medical Leave Act. Plaintiff asked if she could skip her morning appointment and perform her afternoon sessions, but Plaintiff ultimately performed all three of her scheduled massages that day. The next day, Plaintiff called in sick. On February 20, Kossof terminated Plaintiff. Plaintiff alleges that Kossof told her that he was terminating her because she had “too many medical problems.” [8, at 18.]

         Plaintiff filed suit against Defendant, asserting claims for gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”), and for disability discrimination and failure to accommodate under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Plaintiff was originally litigating this case pro se, and filed two motions for summary judgment in 2014 [40; 51], both of which were denied as premature [62]. In 2015, both parties moved for summary judgment [80; 86], with each side contending it was entitled to summary judgment on Plaintiff's claims [82; 98].

         On September 24, 2015, Judge Gottschall granted Defendant's summary judgment motion with respect to the Title VII claim, but otherwise denied the remainder of Defendant's motion and denied Plaintiff's motion in its entirety. [114.] As part of that decision, Judge Gottschall considered whether there was sufficient evidence in the record to show a triable issue of fact regarding each element of Plaintiff's ADA claim. Of relevance here, Defendant argued that Plaintiff “cannot prove she was qualified for the position of massage therapist because she was absent from work too often.” Id. at 8. Judge Gottschall concluded:

Here, however, there is insufficient evidence in the summary judgment record for the court to conclude that Green's absences prevented her from performing the essential functions of her job. The evidence the Spa submits to prove Green's absenteeism consists of an affidavit from Green's supervisor, Jedrzejek. Jedrzejek avers that Green “developed a habit of calling in sick to work shortly before her scheduled appointments were to begin.” Jedrzejek Aff. ¶ 16. Green, a pro se plaintiff, denies that she developed such a habit, but she did not depose Jedrzejek to test her averments. Nonetheless, Jedrzejek's affidavit provides no insight into how many times Green actually cancelled her appointments “shortly before” they were scheduled to begin. Id. The court cannot find Green's claim deficient as a matter of law solely based on Jedrzejek's conclusory and unsubstantiated averment.

Id. at 8-9. Judge Gottschall further noted that Plaintiff had submitted employment records showing how often she and her co-workers were absent from work, but it was unclear if these records were accurate or admissible business records. In any event, she concluded that these records “raise a fact issue as to whether [Plaintiff's] absences prevented her from performing her job duties.” Id. at 9. She then cited the Seventh Circuit's decision in Haschmann v. Time Warner Entertainment Co., 151 F.3d 591(7th Cir. 1998), for the point that “[i]t is not the absence itself but rather the excessive frequency of an employee's absences in relation to that employee's job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job.” [114, at 10.] She ended this section of her opinion with the statement that “[c]onsideration of the degree of excessiveness is a factual issue well suited to a jury determination.” [114, at 10 (quoting Haschmann, 151 F.3d at 602).]

         In January 2016, Plaintiff moved for reconsideration of Judge Gottschall's summary judgment decision [129], which was denied [133]. Judge Gottschall recruited counsel for Plaintiff [116; 120; 128] and set the parties on a path for trial [138]. Shortly thereafter, this case was reassigned from Judge Gottschall to this Court. [139.] At the second status hearing following this reassignment, the parties proposed filing new summary judgment briefs. [143.] Without fully appreciating the extent of the water under the bridge in the litigation to date, the Court accepted the parties' proposal and struck the trial date. Both parties then moved for summary judgment [144; 145].

         II. Legal Standard

         Summary judgment is proper where “the movant shows that 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). To establish that a material fact is undisputed, the movant “must support the assertion by * * * citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations * * *, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). In determining whether summary judgment is appropriate, the court should construe all facts and reasonable inferences in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear ...


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