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Mashni v. Board of Education of City of Chicago

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

September 1, 2017

ANTHONY MASHNI, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          Honorable Edmond E. Chang, United States District Judge

         Anthony 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.[1] R. 1, Compl.[2] 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.

         I. Background

         In 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.

         A. Local Rule 56.1

         The 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[3] ¶¶ 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 entirety.

         First 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.”)

         In its 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.

         Two of 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).

         Additionally, 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.[4] 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.

         B. Mashni Declaration

         Next, 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 place.

         But the 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.

         C. Factual Background

         Mashni 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.

         In 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.

         At 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.

         Mashni 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.

         Over 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.

         Brake 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.

         Partly 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.

         In 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. ¶ 22.

         With 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 ¶ 18.

         Upon 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.

         Mashni 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 90:12-19.

         Mashni 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.

         On 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 indefinite[5]leave of absence. DSOF ¶ 19. He was told that, pursuant to the terms of the Chicago Teachers' Union collective bargaining agreement, [6] 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. ¶¶ 23-24.

         On 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.

         In late 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.

         EOCO 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 only[7] 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.

         About a 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.”[8]EOCO Resp. Ltr. The letter did not, however, claim that there were other candidates for the STEM position more senior to Mashni. Id.

         The 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.

         Mashni 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.

         Although 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.

         II. ...


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