United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang, United States District Judge
Mashni brings this lawsuit against his employer, the Board of
Education of the City of Chicago, for discrimination and
retaliation in violation of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. (the
“ADA, ” for short) and the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq., and for
intentional infliction of emotional distress. R. 1,
Compl. Mashni claims that the principal and
assistant principal at the Norman A. Bridge School (which is
a Chicago public school) mocked, insulted, and harassed him
because of his generalized anxiety disorder. Id.
Mashni also claims that the Board failed to accommodate his
disability and retaliated against him for requesting the
accommodation. Id. The Board seeks summary judgment
on all of Mashni's claims. R. 41, Mot. Summ. J. For the
reasons discussed below, the motion is granted in part and
denied in part.
deciding the Board's motion for summary judgment, the
Court views the evidence in the light most favorable to
Mashni, because he is the non-movant. See Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). Before summarizing the facts of this case,
the Court first addresses two arguments raised by the Board:
(1) that Mashni's statement of additional facts violates
Local Rule 56.1, and (2) that several statements in
Mashni's declaration should not be considered.
See R. 59, Def.'s Reply Br. at 2-3.
Local Rule 56.1
Board argues that a number of statements in Mashni's
Local Rule 56.1 Statement of Additional Facts, R. 49, should
be disregarded. Def.'s Reply Br. at 2. The Board
generally alleges that PSOF ¶¶ 6-16, 18, 19, 25,
26, 31, 33, 34, 41, 46, and 49 are
“opinion/argumentative, conclusory, vague, immaterial,
speculative, and/or hearsay” are therefore improperly
asserted-but fails to elucidate each individual
statement's shortcomings. Id. This scattershot
approach does not warrant striking those statements in their
of all, the Board has not cited “specific
references to the affidavits, parts of the record, and other
supporting materials relied upon …” in its
responses to PSOF ¶¶ 6-11, 14, and 33, as required
by Local Rule 56.1. See L.R. 56.1(a), (b)(3)(B)
(emphasis added). So far from precluding Mashni's
reliance on those statements, it is the Board that actually
has conceded them as admitted. See Ammons v. Aramark
Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)
(“[A] district court is entitled to expect strict
compliance with Rule 56.1.”)
responses to the remaining statements, the Board at least
refers to the record. But even with those references, the
Board neglects to explain exactly what about the
statements is improper. PSOF ¶¶ 12-13, 15-16, 18,
19, 25, 26, 31, 34, 41, 46, and 49 state facts and cite to
supporting material in compliance with Local Rule
56.1(b)(3)(C). Without any insight into the Board's
specific reasons for asking to exclude the
statements, the Court finds no reason to strike them out
entirely. But because the Board's responses to those
statements comply with Local Rule 56.1, properly disputed
statements will be treated as such.
these statements require additional comment. The Court will
not strike PSOF ¶¶ 6 and 46, but Mashni must reduce
their substance to admissible form before trial. See
Payne v. Pauley, 337 F.3d 767, 775 n.3 (7th Cir. 2003)
(“Evidence presented to defeat a summary judgment
motion need not be in admissible form, but it must be
admissible in content.”). PSOF ¶ 6 relies on
hearsay statements from Mashni's psychiatrist, Theodore
Handrup. Because the statements were made for the purpose of
supporting Mashni's request for a reasonable
accommodation of his alleged disability, they are not records
of a regularly conducted activity. See Fed. R. Evid.
803(6). So Dr. Handrup must testify to the substance of PSOF
¶ 6 if it is to be allowed at trial. PSOF ¶ 46
relies partly on documents that were produced in discovery
and discussed in Mashni's declaration, but were not
included in the record. See R. 50-1, Mashni Dec.
¶ 3 (discussing third parties' applications to the
Marine Leadership Academy position). At trial, Mashni must
offer the actual documents, and then they may be allowed for
a nonhearsay purpose or under Federal Rule of Evidence 803(6)
(with the proper foundation laid).
although Mashni did not raise this issue in a sur-reply (at
some point the back and forth must cease), the Court will
strike the first sentence of DSOF ¶ 29 on its own
initiative, because that statement is not supported by the
record. DSOF ¶ 29 states that Christopher Brake closed
Mashni's position at the Bridge School on April 18, 2015,
citing Brake's declaration. DSOF ¶ 29; R. 42-6,
Brake Dec. ¶ 12. But Brake testified in his deposition that
he did not remember when he closed the position. Pl.'s
Resp. DSOF ¶ 29; R. 50-6, Brake Dep. at 35:16-20. The
Board “may not raise a disputed material fact by
submitting an affidavit containing conclusory allegations
which contradict plain admissions in a prior
deposition.” See Adusumilli v. City of Chi.,
164 F.3d 353, 360 (7th Cir. 1998). Without an explanation as
where the April 18 date came from, the Board cannot assert
that Brake closed Mashni's position on that date.
the Board argues that paragraphs 2-7, 9, 11, 16, 18, and 19
of the Mashni Declaration should be stricken, adopting the
same kitchen-sink arguments it deployed against the PSOF
statements discussed above. For the same reasons discussed in
the previous section, the Court leaves those paragraphs in
Court will strike paragraphs 12-14 of the Declaration. In
these paragraphs, Mashni attempts to supplement his
deposition testimony with additional instances of alleged
harassment-even though he repeatedly attested to the
completeness of his answers during the deposition itself.
See, e.g., R. 50-2, Mashni Dep. at 355:21-356:8
(“Q: Have we talked about all the facts that support
your claims that you raised in the lawsuit? … A: I
believe we covered most of the facts. Q: Are there additional
facts that support your claims that we have not discussed? A:
I don't believe so.”) This inconsistency between
affidavit and deposition testimony is not permitted, at least
without a reasonable explanation. “Where a deposition
and affidavit are in conflict, the affidavit is to be
disregarded and the court should only consider the deposition
unless it is demonstrated that the statement in the
deposition was mistaken.” Kaplan v. City of
Chi., 2004 WL 2496462, at *2 (N.D. Ill. Nov. 4, 2004)
(quoting Amadio v. Ford Motor Co., 238 F.3d 919, 926
(7th Cir. 2001)) (quotations omitted). Mashni attempts to
explain his earlier omission by arguing that his anxiety
medication, Klonopin, “caused [him] to feel foggy[, ]
making it difficult to retriev[e] information.” Mashni
Dec. ¶ 12. But Mashni does not offer any evidence that
Klonopin has that side effect, or any details about what
would aggravate or mitigate the memory problems (such as
dosage, time passage since taking the medication, whether
time of day affects the purported problem, and so on). At
that level of generality, the Board cannot begin to test
Mashni's conclusory assertion about how memory problems
would impair the recall of the facts concerning Brake's
alleged harassment. And even if the medication had that
effect, there was nothing preventing his attorney from trying
to refresh Mashni's memory on redirect examination over
the course of his three-day-long deposition. At least if
Mashni's attorney had done that, then the defense could
have asked Mashni questions during the deposition (or, at
worst, sought to re-open the deposition during the fact
discovery period). What's more, there is no suggestion in
the record that Mashni attempted to correct his deposition
answers after reviewing the transcript, under Federal Rule of
Civil Procedure 30(e)(1). If he had done that, the
Board again would have had a chance to follow-up on the newly
averred facts. The omitted facts are central to
Mashni's hostile work environment claim, so his failure
to disclose them earlier is not reasonable. So the paragraphs
will be disregarded, as will any PSOF statements that rely on
them. With these issues now addressed, the Court turns to a
description of the facts.
is an employee of the Board of Education of the City of
Chicago, which operates the Chicago public-school system.
DSOF ¶¶ 1-2. He has worked for the Board as a
Technology Coordinator since 2008. Pl.'s Resp. DSOF
¶ 7. In 2011, he began working in that role at Norman A.
Bridge School, where the pertinent events took place. DSOF
¶¶ 7-8; Pl.'s Resp. DSOF ¶ 7. The Bridge
School consists of two campuses (a junior high school and an
elementary school) and serves students from pre-kindergarten
through the eighth grade. DSOF ¶ 9. Its principal,
Christopher Brake, manages the School's operations and
supervises the Board employees staffed at the School.
Id. ¶¶ 10-11.
August 2011, Brake hired Mashni to oversee the School's
technological equipment and assist staff with
technology-related issues. DSOF ¶ 11. Mashni's
responsibilities extended to both campuses-he had an office
at both the elementary school and the junior high and worked
at both locations on a daily basis. Id. ¶ 15.
first, Mashni worked well under Brake, receiving good reviews
for his performance. PSOF ¶ 1; 11. But their
relationship started to sour in the summer of 2014, when
Mashni began experiencing the symptoms of what was later
diagnosed as generalized anxiety disorder. Id.
¶¶ 11-12. Although Mashni believes that he has
suffered from anxiety for his entire life, the condition did
not become “debilitating” (in his words) until
June 2014, id. ¶ 9, and was not formally
diagnosed until November of that year, R. 50-1, Mashni Dec.
at Exh. 1, FMLA Health Cert. Mashni estimates that he
suffered episodic flare-ups of anxiety about three times a
week- and sometimes as often as every day-from June to
November 2014, and about thirty times total between
mid-November 2014 and mid-January 2015. PSOF ¶ 7. During
these flare-ups, Mashni feels like he is in “flight and
fear mode”-his thoughts race, his body shakes, he cries
and he vomits. Id. Mashni treats his anxiety with a
combination of prescription medication and regular sessions
with a psychologist and psychiatrist. Id. ¶ 10.
asserts that he told Brake about his anxiety disorder in
August or September 2014. PSOF ¶ 13. During this
conversation, Mashni described his disorder and its attendant
symptoms in detail. Id. From this moment onward,
Mashni claims, Brake's attitude towards him became
“extremely hostile.” Id. Brake would
ignore Mashni, swear at him, and belittle him in front of
other Bridge School staff-calling him an
“asshole” and “incompetent idiot” to
other staff members and telling other employees that he
“really need[ed] to hire a new technology coordinator,
” all while Mashni was in earshot. Id.
¶¶ 14-15, 18. Brake, for his part, denies that he
was ever told about Mashni's anxiety, much less that he
responded with such hostility. Def.'s Resp. PSOF ¶
13; R. 60-5, Brake Dec. ¶ 7.
the next couple of months, Mashni alleges (and the Board
disputes) that Brake regularly subjected Mashni to harassment
and verbal abuse, questioning his competency and mental
capabilities and often driving him to tears. PSOF
¶¶ 16-24. After technical problems interfered with
a staff presentation, Brake blamed Mashni and cursed at him,
“You fucking should ha[ve] check[ed] that everything
was working[, ] you dumb idiot. I now have the fucking whole
staff waiting and I look like the idiot, you asshole.”
Id. ¶ 16. In another incident, Brake attempted
to dissuade a teacher from working with Mashni by telling her
to “leave [Mashni] alone because he cannot multi-task
for shit.” Id. ¶ 17. Brake then warned
Mashni to “focus on one thing[, ] asshole[, ] before I
gut you like a pig.” Id. ¶ 17.
was not the only one who allegedly harassed Mashni because of
his anxiety disorder. Mashni contends that Assistant
Principal Juan Cardona caused him discomfort by prying into
his personal life-asking Mashni what medications he was
taking, telling him to see a psychiatrist and therapist, and
advising him to deal with his stress by “go[ing] crazy
on your wife.” PSOF ¶ 19.
because of this harassment, Mashni's anxiety grew
progressively worse. Between June 2014 and January 2015,
Mashni suffered three panic attacks at work. PSOF ¶ 9.
Mashni characterizes these panic attacks as inducing
“seizurelike symptoms”: he cannot walk, talk, or
control his breathing, and when the attacks are at their
severest, he may involuntarily soil himself. Id.
¶ 8. Mashni claims that Brake and Cardona witnessed
these panic attacks (they deny it). Id. ¶ 12;
Def.'s Resp. PSOF ¶12.
October 2014, Mashni's anxiety caused him to start
missing work, culminating in a week of full disability leave
in early November. PSOF ¶¶ 20, 23. When Mashni told
Brake that he needed to go on leave, Brake stated-according
to Mashni-“[W]e always knew you were a little mental,
but I wanted to keep you around because you are like the
[three-legged] family dog.” Id. ¶ 21.
Meanwhile, Cardona responded to Mashni's request for
leave by telling him, “[Y]ou're going to have to
see a psychiatrist, and you should tell the psychiatrist
you're hearing voices but you don't understand what
the voices are telling you to do.” Id. ¶
Mashni out of the office, Brake hired an hourly employee to
help cover Mashni's responsibilities. DSOF ¶ 18.
Despite this, Mashni received work-related questions nearly
every day of his November leave. PSOF ¶ 23. A month
later, in December 2014-after Mashni had come back to
work-Brake hired a second hourly technology employee. DSOF
his return, Mashni confronted Brake. PSOF ¶ 24. He told
Brake that Brake's and Cardona's harassment was
triggering panic attacks. Id. ¶ 24. When the
school clerk interrupted the meeting, Brake remarked to her,
“[C]an you believe this guy is trying to blame his
mental problems on me[?]” Id. ¶ 24.
Mashni burst into tears and ran out. Id. ¶ 24.
Brake does not remember this encounter. Def.'s Resp. PSOF
¶ 24; R. 60-3, Brake Dep. at 88:9-11.
claims that, in another incident, Brake walked in on Mashni
while Mashni was having a panic attack in the bathroom. PSOF
¶ 25. According to Mashni, Brake watched him throw up
and told him, “This is bullshit. You just need to die
already.” Id. ¶ 25. Brake does not
remember ever seeing Mashni throw up at the School and flatly
denies ever telling him to “just die already.”
Def.'s Resp. PSOF ¶ 25; R. 60-3, Brake Dep. at
alleges a litany of other instances where Brake and Cardona
mocked his condition. PSOF ¶¶ 26-32. He claims that
Cardona called him a “pussy” for crying at work,
asked him if someone should call an ambulance in case Mashni
passed out, and joked that other Bridge School staff should
light candles to calm Mashni. Id. ¶ 26-29.
Brake allegedly ridiculed Mashni by pretending to cry and
taunting, “Oh, my life is terrible. I want to kill
myself. I can't go on anymore.” Id. ¶
26. Whenever Brake or Cardona heard an ambulance go by, they
would mock Mashni by asking him, “[W]e hear an
ambulance, are you okay?” Id. ¶ 27. Brake
also insulted Mashni in front of other Bridge School
employees, telling a teacher working with Mashni,
“[D]on't even bother with him, he will just end up
crying, he's useless.” Id. ¶ 28.
Brake and Cardona categorically deny making any of these
remarks. Def.'s Resp. PSOF ¶¶ 26-32; R. 60-4,
Cardona Dec.; R. 60-5, Brake Dec.
January 13, 2015, Mashni suffered a panic attack at work.
DSOF ¶ 19. An ambulance was needed to transport him from
the School to the hospital. PSOF ¶ 32. Mashni did not
return to work the next day; instead, he went on an
indefiniteleave of absence. DSOF ¶ 19. He was
told that, pursuant to the terms of the Chicago Teachers'
Union collective bargaining agreement,  the Board would
hold his position for him for twelve weeks. Id.
¶ 23. If he did not return to work by the end of those
twelve weeks-March 27, 2015, his so-called “Job
Protection Date”-then the Board would not guarantee
that he would have a job to return to. Id.
March 11, Mashni reached out to Brake. PSOF ¶ 34. Over
text message, Mashni requested to speak with Brake before he
returned to work, “preferably in person.”
Id. ¶ 34. Brake replied that he was busy; he
later followed up and suggested a meeting date. Def.'s
Resp. PSOF ¶ 34. When Mashni then asked that they meet
“offsite … not at the school, ” Brake cut
him off: “Forget it, ” he retorted, “See
you when you return. Stop bothering me already.” PSOF
¶ 34; Def.'s Resp. PSOF ¶ 34. Also on March 11,
Brake instructed his staff to deactivate Mashni's door
access to the Bridge School and delete Mashni's computer
passwords. PSOF ¶ 35.
March, Mashni submitted a letter to the Board's Equal
Opportunity Compliance Office (“EOCO, ” for
short) Administrator through his attorney. DSOF ¶ 25.
The letter described the hostile work environment at the
Bridge School and requested reasonable accommodation for
Mashni's anxiety disorder, pursuant to the Americans with
Disabilities Act. R. 50-1, Mashni Dec. at Exh. 1, Ltr. to
EOCO. Mashni asked “[t]o be placed as a Technology
Coordinator II at a different school, preferably on the
Northwest side of Chicago.” R. 50-1, Mashni Dec. at
Exh. 1, Reas. Accomm. Form. In support of the request,
Mashni's psychiatrist, Dr. Handrup, submitted two forms
describing Mashni's condition, which he diagnosed as
“generalized anxiety disorder w/ panic attacks &
OCD features.” See FMLA Health Cert.; R. 50-1,
Mashni Dec. at Exh. 2, CPS Health Cert. Dr. Handrup gave the
condition's commencement date as November 3, 2014, and
stated that he had been seeing Mashni on a weekly basis since
then. FMLA Health Cert. Mashni's symptoms were listed as
“severe panic attacks, depression, [and] suicidal
thoughts, ” and inability “to perform any
function that may require focus, concentration, or task
application until further notice.”
Id. (emphasis in original). As for Mashni's
future prognosis, Dr. Handrup opined that
“[patient]'s illness will be ongoing indefinitely,
however removing or [reducing] stressors will improve
[patient]'s condition (i.e.[, ] hostile work
environment).” CPS Health Cert.
assigned Alan Cutler to investigate Mashni's
accommodation request. DSOF ¶ 31. Cutler met with Mashni
and his attorney on April 27, 2015. Id. ¶ 32.
They discussed a number of accommodation options, including
allowing Mashni to remain in his current position but work
at the Bridge School's junior high school campus, and
postponing Mashni's Job Protection Date until his
accommodation request was resolved. Id. Mashni and
Cutler also determined that the Board had no vacant
technology positions at that time. Id. In response
to the harassment allegations, Cutler advised Mashni that he
could file a formal EOCO complaint against Brake and Cardona,
but Mashni did not do so. PSOF ¶ 40. The next day, April
28, Cutler interviewed Brake and learned that Brake had
already closed Mashni's position at the Bridge School.
DSOF ¶ 35.
week after the Cutler meeting, Mashni identified an open job
posting for a STEM Technology Specialist and informed EOCO
that he would accept reassignment to that role. DSOF ¶
36. But EOCO denied that request. Id. ¶ 37; R.
42-4, Cutler Dec. at Exh. 11, EOCO Resp. Ltr. In a letter
dated May 19, EOCO stated that it was “unable to
provide a directed reassignment to another school”
because, pursuant to the Chicago Teacher's Union
collective bargaining agreement, “[s]eniority will be
considered in the selection of computer technicians and
technology coordinators I, II and III seeking transfer to an
announced vacancy.”EOCO Resp. Ltr. The letter did not,
however, claim that there were other candidates for the STEM
position more senior to Mashni. Id.
letter went on to inform Mashni that his position at the
Bridge School had been closed on April 18, 2015 “due to
budgetary concerns and the changing needs of the
instructional program.” EOCO Resp. Ltr. To compensate,
EOCO retroactively extended Mashni Job Protection Date by
three weeks, from March 27 to April 18, 2015. Id.
Finally, EOCO advised Mashni of his right to appeal its
decision and explained the appeal process. Id. No
appeal was submitted, and EOCO closed Mashni's file. DSOF
¶ 40; PSOF ¶ 47.
continued to apply for vacant positions on his own, and was
hired in August 2015 as a Technology Coordinator at Marine
Leadership Academy, another Chicago public school, where he
continues to work until this day. DSOF ¶ 41; Pl.'s
Resp. DSOF ¶ 41; PSOF ¶ 50. The parties disagree as
to Mashni's employment status between his Job Protection
Date and his hiring at the Marine Leadership Academy.
Id. The Board contends that Mashni remained employed
through the summer. DSOF ¶ 41. According to the Board,
Mashni was released from medical leave on August 20, 2015,
and immediately staffed in his new position at Marine
Leadership Academy. Id.; R. 42-11, DSOF at Exh. 9,
Frank Dec. ¶¶ 14, 16. Mashni disputes this, arguing
that, because he did not return to work before the end of the
2014-15 school year, the Board's policies called for him
to receive a termination letter on June 30. PSOF ¶ 48.
Mashni stops short, however, of asserting that he
actually received a termination letter. Id.
he was hired at Marine Leadership Academy, Mashni filed suit
against the Board for disability discrimination under the ADA
and the Rehabilitation Act, and for intentional infliction of
emotional distress. The Board now moves for summary judgment
against all of Mashni's claims.