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Malas v. Hinsdale Township District

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

July 1, 2019

BRETT M. MALAS, Plaintiff,
v.
HINSDALE TOWNSHIP DISRICT #86, Defendant.

          MEMORANDUM OPINION AND ORDER

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

         Before the Court is the motion for summary judgment [73] filed by Defendant Hinsdale Township District #86. For the reasons set forth below, Defendant's motion for summary judgment [73] is granted in part and denied in part. The Court gives Defendant until July 22, 2019 to file a brief no longer than five pages addressing whether a hostile work environment claim can be brought under the Americans with Disabilities Act. Further status hearing set for July 25, 2019 at 9:00 a.m.

         I. Request for Discretionary Consideration

         Before turning to the background of this employment discrimination action, the Court must address the deficiencies of Plaintiff's submissions and how the Court is handling those deficiencies. Perhaps recognizing that his submissions are deficient, Plaintiff has filed a “request for the Court's discretionary consideration” asking that “for key, pivotal issues/facts so deemed by the Court that could prove determinative in a ruling against one or more of [his] claims that [Plaintiff] be permitted opportunity to fix, clarify/amend or otherwise remedy defects/deficiencies in [his] filings where relevant.” [72, at 1-2.] The Court recognizes that it was difficult for Plaintiff to put together the materials that he submitted in opposition to Defendant's motion for summary judgment, not only because of Defendant's status as a pro se litigant but also because of the very disabilities that are at issue in this employment discrimination action.

         At the same time, Plaintiff's status as a pro se litigant does not excuse him from complying with the rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow rules of civil procedure.” (citation omitted)). While it is true that pro se submissions are construed liberally, “[t]he essence of liberal construction is to give a pro se plaintiff a break when, although he stumbles on a technicality, his pleading is otherwise understandable.” Greer v. Bd. of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001) (citing Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998)). “However, a lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are ‘obliged in our adversary system to scour the record looking for factual disputes[.]'” Id. (quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1993)). Furthermore, to the extent that Plaintiff contends that his disability limits his ability to present his arguments, Plaintiff could have retained a lawyer or, if Plaintiff is indigent, asked that the Court recruit an attorney on his behalf. Although the Court is sympathetic to the difficulties faced by Plaintiff, it would be unfair and burdensome to give Plaintiff multiple bites at the apple. The Court therefore denies Plaintiff's request for the Court to give him the opportunity to correct any deficiencies.

         Plaintiff's response to Defendant's Local Rule 56.1 statement and Plaintiff's own Local Rule 56.1 statement are in many respects improper. To begin, under Local Rule 56.1, “facts that go beyond what is fairly responsive to the movant's Local Rule 56.1(a)(3) assertions” must be made in the non-movant's Local Rule 56.1(b)(3)(B) response. Buford v. Laborers' Int'l Union Local 269, 2019 WL 184052, at *3 (N.D. Ill. Jan. 14, 2019). For the most part, Plaintiff's response to Defendant's Local Rule 56.1 statement does not comply with this requirement and therefore will be disregarded, except where Plaintiff notes a deficiency with Defendant's own statement or provides necessary context for Plaintiff's admission. Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (affirming district court's refusal to consider facts proposed in the plaintiff's Local Rule 56.1 where “response contained several extremely long, argumentative paragraphs, and in those paragraphs [plaintiff] simultaneously denied the veracity of [defendant's] proposed material facts and presented additional facts of his own”); see also Eason v. Nolan, 416 Fed.Appx. 569, 570 (7th Cir. 2011) (“[T]he district court did not abuse its discretion when it disregarded the additional facts that [the non-movant] included in his [Local Rule 56.1(b)(3)(B)] response.”).

         Plaintiff's response to Defendant's Local Rule 56.1 statement and his own Local Rule 56.1 statement also include improper factual and legal argument. “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 v. Sanford, 191 F.R.D. 581, 585 (N.D. Ill. 2000). By way of example, Plaintiff's Statement of Fact No. 32 states:

[Plaintiff] was treated less favorably after his room accommodation request in September 2014 and was criticized in evaluations for professional practices his colleagues were allowed to do. Palmer's post-conferences and evaluations of [Plaintiff] were neither honest, accurate, or correct and were 100% negative with no constructive feedback on how to improve. Palmer quoted a portion of her formal observation notes in her post-observation form. Palmer altered this quoted portion by adding, deleting and resequencing material to make [Plaintiff's] teaching appear “disconnected, ” to falsely support her evaluative conclusions about him, and to counter statements in a corrected-for-omissions version of her notes that he gave her. In her summative evaluation Palmer criticized [Plaintiff] for 1) an accommodation request idea he shared with her from his May 1, 2012 letter, 2) for missing a meeting while omitting he was on a short-term medical leave she approved, 3) for leaving “early” from a meeting while omitting that he worked part-time and was allowed to do so, 4) for disability symptoms, 5) for specific jobs like collaboration, communication and instruction for which he had requested and requested accommodations for since 2012, 6) for sending numerous emails asking to stop the evaluation process while omitting the reasons for his requests, including complaints of retaliation, violation of ADA, lack of ADA interactive process, failure to accommodate, 7) and more. (Ex. C, Palmer Ex. No. 9, 12, 15; Ex. D, #4 ¶¶90; 26-27, 36-39, pg. 13, ¶¶41, 43, pg. 15, ¶¶44, 46, 48-50, 53, 56-62, 64, 66-68, 74-79, 81-84, 86-87; Ex. K, pgs. 170-171, 190-194, 224-225, 277-280; Ex. M, pgs. 18-21; Ex. P, ¶6, 64;).

         This is the kind of statement that could be included in a brief and supported by proper statements of fact. However, this is not in itself a proper statement of fact as it includes factual and legal argument. The Court therefore will disregard this statement and other statements/responses to the extent that they contain improper factual and legal argument. Trumbull v. SCI Illinois Servs., Inc., 575 Fed.Appx. 683, 685 (7th Cir. 2014) (affirming district court's decision to disregard facts and arguments improperly presented to the court in violation of Local Rule 56.1).

         Furthermore, many of the assertions in Plaintiff's own Local Rule 56.1 statement are not short paragraphs as required by Local Rule 56.1. “Local Rule 56.1(b)(3)(C) provides that a party opposing a motion for summary judgment must file ‘a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to * * * supporting materials relied upon.'” Torres v. Alltown Bus Servs., 323 Fed.Appx. 474, 475 (7th Cir. 2009). Again, by way of example, Plaintiff's Statement of Fact No. 5 states:

From 2012 to 2015, [Plaintiff] repeatedly requested accommodations, asked his employer to meaningfully engage in the ADA interactive process versus giving the appearance of complying without answering his main requests or offering alternatives, and expressed his willingness to collaborate and openness to his employers' accommodation suggestions a combined total of over seventy-five (75) times (Ex. A, pgs. 266-267; Ex. D, #6 ¶¶1-54; #7 ¶¶1-11; Ex. K, pgs. 65, 77-80, 90-93, 98, 113, 115-120, 134, 149, 197-200, 224-225, 232-234, 242-258, 259-261, 265-266, 276- 280, 281, 283, 289-291). He stated that in the 2014-15 year, retaliation forced him to request a short-term medical leave, reduced part-time schedule and continued stockroom use he needed no permission for that he received and was penalized for all three in evaluations (Ex. D, #4 ¶¶44, 46, 59, 68, 90; Ex. P, ¶¶53).

         This long statement of fact purports to address approximately 75 purported requests for accommodation occurring over a multi-year period and therefore is improper. Maclin v. A.M. Bus Co., 2006 WL 463370, *2 (N.D. Ill. Feb. 22, 2006) (stating that “compounding of facts into an amalgamated paragraph is not permissible” and disregarding certain paragraphs); Malec v. Sanford, 191 F.R.D. 581, 582 (N.D. Ill. 2000) (“[I]t is inappropriate to confuse the issues by alleging multiple facts in a single paragraph in hopes of one opponent missing one.”). The Court therefore disregards this statement and other similarly improper statements (specifically, Plaintiff's Statement of Fact Nos. 2, 4-8, 10-12, 15, 17-19, 21-25, 28, 31-39, 63, 83, 93, 104, and 107), except to the extent that they include facts admitted by Defendant. Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016) (“We have repeatedly held that requiring strict compliance with [Local] Rule 56.1 is not an abuse of the district court's discretion.” (citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)); see also Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015) (“The purpose of [Local] Rule 56.1 is to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination. It is the litigants' duty to clearly identify material facts in dispute and provide the admissible evidence that tends to prove or disprove the proffered fact.”).

         Plaintiff's submissions also include many facts that are not relevant to resolving the issues before the Court.[1] For example, Plaintiff identifies facts regarding when Defendant learned about certain of Plaintiff's disabilities. [60-2 (Pl.'s Stmt. of Add'l Facts), ¶ 2.] However, Plaintiff does not tie these facts to a relevant argument. None of Defendant's arguments for summary judgment hinge on whether Defendant knew of Plaintiff's disabilities at a particular time. Similarly, many of Plaintiff's statements of additional facts merely assert what certain communications from Plaintiff stated. [See, e.g., 60-2 (Pl.'s Stmt. of Add'l Facts), at ¶¶ 70-78, 80.][2] Although Defendant admits that Plaintiff accurately characterizes these communications, the abbreviated language used in the communications makes it difficult for the Court to analyze when not placed into context. Furthermore, Plaintiff does not explain how these communications themselves are relevant. For example, Plaintiff does not rely on these communications to establish notice. The Court therefore does not find these assertions helpful to the resolution of the issues before the Court on Defendant's motion for summary judgment and therefore disregards them. To the extent that Plaintiff seeks to establish the facts asserted within these communications, the facts should have been asserted separately and supported by admissible evidence.

         Plaintiff also fails to put other statements of fact in context. For example, Plaintiff's Statement of Fact No. 81 attempts to draw a connection between a conversation Plaintiff had with his colleague Adam Hallihan and a statement in Plaintiff's final summative evaluation about Plaintiff draining “extra time from our teachers and his department chair when he pulls them aside individually to discuss what took place at team meetings or when he sends emails that the team members then have to read.” [60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 81.] Plaintiff's brief and Local Rule 56.1 statement fail to put these statements into context. Additionally, Plaintiff fails to cite any authority for certain statements. [See 60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 82.] Plaintiff's statement of facts also included numerous statements regarding what Defendant represented to the EEOC. [See, e.g., 60-2 (Pl.'s Stmt. of Add'l Facts), at ¶¶ 109-11.] Although the Court considered these statements to the extent relevant, as noted below, the Court otherwise disregards these statements as irrelevant to the issues before the Court on Defendant's motion for summary judgement.

         In sum, the Court disregards most of Plaintiff's responses and Plaintiff's own statements of fact as improper. “[D]istrict courts are not required to ‘wade through improper denials and legal argument in search of a genuinely disputed fact.'” Curtis, 807 F.3d at 219 (quoting Bordelon v. Chicago Sch. Reform Bd., 233 F.3d 524, 529 (7th Cir. 2000)).

         That being said, “courts generally prefer to resolve disputes on their merits instead of procedural technicalities.” See Fidelity & Deposit Co. v. Ramco Indus., 1996 WL 392164 at *3 (N.D. Ill. July 11, 1996). The Court therefore has reviewed many of the underlying documents identified by Plaintiff, even though the Court was not required to do so. Olendzki v. Rossi, 765 F.3d 742, 746 (7th Cir. 2014) (“‘The court need consider only the cited materials, but it may consider other materials in the record.'” (quoting Fed.R.Civ.P. 56(c)(3)). Furthermore, the Court has accepted facts that Defendant admits in its response to Plaintiff's statement of additional facts. Where the parties properly dispute the other party's characterization of the evidence, the Court has looked to the underlying evidence and accepted only properly supported assertions. Finally, the Court notes that both parties rely on unauthenticated documents. Because the parties have not raised any objection to the evidence before that Court based on any failure to authenticate, the Court assumes that the evidence presented to the Court properly can be presented at trial. With these principles in mind, the Court now turns to the factual summary.

         II. Background

         Plaintiff Brett Malas is a resident of Montgomery, Illinois. [21 (Def.'s Stmt. of Facts), at ¶ 1.] Plaintiff was a high school teacher for eighteen years. He has degrees in biology and paleontology. Plaintiff has a professional educator's license from the State of Illinois and is qualified to teach biology, earth science/geology, and chemistry. [Id. at ¶ 4.] Plaintiff also is qualified to teach health. [60-1 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶ 4.] Hinsdale Township School District No. 86 is a school district that educates high school students. [21 (Def.'s Stmt. of Facts), at ¶ 2.] Its administrative offices are located in Hinsdale, Illinois. [Id.] There are two high schools in the District-Hinsdale Central High School (“Hinsdale Central”) and Hinsdale South High School (“Hinsdale South”). [Id.] For the purposes of this motion, the Court refers to both Hinsdale Township School District No. 86 and Hinsdale South High School as “Defendant.” During the relevant time period (2006-2015), Plaintiff was employed by Defendant Hinsdale Township School District No. 86 as a science teacher at Hinsdale South High School under the immediate supervision of Science Department Chair Dr. Julie Gaubatz. [60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 1.]

         Plaintiff began teaching at Hinsdale South during the 2006-07 school year. [60-1 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶3.] He became a full-time teacher during the second semester of that school year and was assigned to teach biology and transitional program of instruction ecology. [Id.] During his nine-year employment, Plaintiff was never issued any reprimands, warnings, or disciplinary notices of any kind. [60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 1.] Plaintiff has been diagnosed with: (1) attention deficit hyperactivity disorder (“ADHD”), (2) depression, (3) anxiety, (4) tic/Tourette's disorder, (5) sleep apnea and (6) post-traumatic stress disorder (PTSD). [Id. at ¶ 2.]

         During the 2007-08 school year, Plaintiff was assigned to teach three biology sections and two earth science sections. [21 (Def.'s Stmt. of Facts), at ¶ 6.] At some point, Dr. Gaubatz gave a presentation that showed how science teachers would be assigned to classes beginning with the 2008-09 school year. [21 (Def.'s Stmt. of Facts), at ¶ 7.] This plan[3] showed how the science department could implement a program of studies change whereby it offered a physics, chemistry, biology program of studies and a geophysics class. [Id. at ¶ 8.] During the 2008-09, 2009-10, and 2010-11 school years, Plaintiff was assigned to teach both geophysics and chemistry. [Id. at ¶ 9.]

         A. 2011-12 School Year

         In the 2011-12 school year, Plaintiff was assigned to teach AP biology and geophysics. [Id. at ¶ 10.] On April 22, 2012, Plaintiff underwent a psychiatric evaluation with Dr. Petit Ndrio because Plaintiff was having difficulty focusing and had symptoms that affected his functionality.[4][21 (Def.'s Stmt. of Facts), at ¶ 16.] ¶ 2012, Plaintiff discussed his brain with Dr. Gaubatz and showed her pictures of his brain spect results. [Id. at ¶ 11.] He explained how continual changes to his schedule had been negatively affecting him. [Id.] In April 2012, Dr. Gaubatz gave Plaintiff his schedule for the 2012-13 school year, making changes to the schedule days after she initially gave the schedule to Plaintiff. [60-1 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶ 12.] He was not told nor has he heard anybody say that he was given that schedule because of his disabilities. [21 (Def.'s Stmt. of Facts), at ¶ 12.]

         On or about May 1, 2012, in response to his 2012-13 schedule, Plaintiff wrote a letter to Dr. Guabatz regarding his claimed disabilities.[5] [Id. at ¶ 13.] In the letter, Plaintiff asked “that due consideration be given to [his] disabilities in the evaluation process and that [he] be evaluated on the basis of non-disability related concerns.” [21-7, at 11.] Attached to the letter is chart summarizing Plaintiff's claimed disabilities (specifically, his anxiety, depression, ADHD, and other “miscellaneous” conditions). [Id. at 12-13.] The chart also identifies five “job accommodation requests” made by Plaintiff. [Id. at 14-15.] First, Plaintiff asked for continued understanding and patience as he worked through difficult issues. Second, Plaintiff asked for the opportunity to take ownership and fix problems, along with the necessary feedback to do so. Third, Plaintiff asked to collaborate on strategies for improved communications. Fourth, Plaintiff asked for the opportunity to maximize job performance by putting disability-related strengths to greater use for the benefit of students, colleagues, the school, and the community. Fifth, Plaintiff asked for due consideration of his disabilities when scheduling teacher assignments. With respect to the fifth request, Plaintiff provided further elaboration, [6] asking that (a) Defendant assign Plaintiff teaching schedules with the goal of moving toward a more stable teaching routine that would afford greater consistency, (b) Defendant consider co-teaching as an option for Plaintiff when working with disabled students, and (c) consolidating Plaintiff's 2012-13 teaching schedule from three rooms to two rooms. On August 16, 2012, Plaintiff met with School District representatives to discuss his May 1, 2012 letter. [Id. at ¶ 15.][7] Defendant neither accepted nor rejected Plaintiff's ideas regarding accommodations. [Id.]

         Plaintiff was evaluated in 2011-12. [21 (Def.'s Stmt. of Facts), at ¶ 7.] He received a satisfactory rating and was able to perform his duties in a satisfactory manner that school year. [Id. at ¶ 14.] As noted by Plaintiff, under the rating system in effect at the time, a satisfactory rating was between an “excellent” and “unsatisfactory” rating and meant performance concerns for a tenured teacher.[8] [60-1 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶ 14.]

         B. 2012-13 School Year

         During the 2012-13 school year, Plaintiff was assigned to co-teach biology and academic reading biology. [21 (Def.'s Stmt. of Facts), at ¶ 17.] Although Plaintiff testified that he believed he was professionally capable of teaching the academic reading biology course, he also testified that the did not feel like he “was given adequate training related to the special needs of students” in that class. [21-1 (Pl.'s Dep. Tr.), at 173-74.] Plaintiff testified that he believed his performance during the 2012-13 academic school year suffered from a lack of accommodations, his health, disabilities, and his arrangement with his academic reading biology co-teacher Maria Conyer. [Id. at 186.] Plaintiff testified that he often had to stay up late because he would receive Ms. Conyer's portion of the lesson late on the night before class. [Id. at 186-87.] Ms. Conyer also wanted to change her lesson plan. [Id.] Plaintiff testified that his problems with Ms. Conyer “ultimately led to [his] need for long-term medical leave.” [Id. at 187.]

         Plaintiff went on medical leave in February 2013. [21 (Def.'s Stmt. of Facts), at ¶ 20.] Although Plaintiff testified that his daughter threatening to hurt herself was the “final straw” that necessitated the leave, he also testified that “[t]he main thing was the only one day ahead planning” of his academic reading biology co-teacher Ms. Conyer. [21-1 (Pl.'s Dep. Tr.), at 209-10.] At the request of Director of Human Resources Troy Courtney, Plaintiff underwent a fitness-for-duty examination. [21-1, at 215.] In his April 1, 2013 fitness report, Dr. Peter Fink stated: “Given the facts as stated by [Plaintiff], [Plaintiff] should undergo psychological/neuropsychological evaluation by a licensed clinical physiologist proficient with qualifications in neuropsychology to further and comprehensively assess [Plaintiff]. Until the completion of such an examination, my opinion on fitness is reserved.” [Id. at 216.] The report noted that Plaintiff suffered from ADHD and depression. [Id.] The report also discussed Plaintiff's “self-described stress related depression and anxiety.” [Id. at 219.]

         Plaintiff received a “needs improvement” rating for the 2012-13 school year, which is a rating between “proficient” and “unsatisfactory.” [21 (Def.'s Stmt. of Facts), at ¶ 22.] When asked whether he remembered any reasons Dr. Gaubatz provided for giving Plaintiff a “needs improvement” rating, Plaintiff testified that two stood out: (1) his purported need to change his lesson plan and to deviate from the biology team calendar, and (2) an e-mail exchange with a sister/legal guardian of a student. [21-1 (Pl.'s Dep. Tr.), at 185.] Plaintiff challenges the sincerity of these justifications. [Id.] By August 11, 2013, in an updated fitness evaluation, Dr. Fink stated:

Based on my clinical evaluation and the neuropsychological testing of Dr. Nugent, [Plaintiff] is fit to perform his duties as an educator for the District. Although [Plaintiff] has taken the position that he would prefer a half time position [sic], the District has no such positions. Returning [Plaintiff] to a full-time position, I recommend that [the] administration monitor [Plaintiff's] work responsibilities regularly. Initially, weekly meetings would provide both the District and [Plaintiff] practical information about job performance. Thereafter, the level of supervision necessary should be empirically determined. Ultimately, [Plaintiff] will or will not meet the Districts [sic] expectations for job performance.

[49-1, at 240-41.] On February 27, 2014, Plaintiff filed a charge of discrimination with the EEOC, relating to his May 6, 2013 needs improvement performance evaluation. [21-1, at 258-59.] Plaintiff and Dr. Gaubatz never discussed the EEOC charge. [21 (Def.'s Stmt. of Facts), at ¶ 33.]

         C. 2013-14 School Year

         The process of assigning subjects and classes to the science teachers at Hinsdale South High School is a complicated one. [21 (Def.'s Stmt. of Facts), at ¶ 25.] Plaintiff was assigned to teach biology and academic reading biology for the 2013-14 school year with a co-teacher, Randy Brogan, and this schedule was determined before the start of the school year. [Id. at ¶ 26.] During the 2013-14 school year, Plaintiff and Dr. Gaubatz had weekly meetings. [Id. at ¶ 27.] During a discussion about the 2014-15 schedule, Dr. Gaubatz mentioned that Plaintiff “was somehow deviating from the curriculum or asking to that.” [21-1 (Pl.'s Dep. Tr.), at 469-70.] Plaintiff claims he did no such thing. [Id.]

         On February 18, 2014, Plaintiff met with Domenico Maniscalco, the District's Chief Human Resources Officer. [21 (Def.'s Stmt. of Facts), at ¶ 28.] During this meeting, Plaintiff requested accommodations. When asked what accommodations he requested at that meeting, Plaintiff testified:

I gave him a little background about all the changes in my schedule, the need for a consistent schedule. He asked what my ideal teaching schedule would be. I told him that at this point where I was health wise, disability wise it would be helpful to have all biology in one room, and that would be the ideal. And I said academic reading biology was not an ideal fit for me, but at this point I needed consistency. So if I couldn't get the biology, if I could just keep on the same schedule I had for the [20]13-14 year with the same co-teacher because I needed - desperately needed consistency in my schedule.

[21-1 (Pl.'s Dep. Tr.), at 243-44.] During this meeting, Plaintiff also asked (1) for a temporary suspension of his “needs improvement” rating until it could be determined whether it “resulted from poor performance or if it was disability related and could have been remedied with reasonable accommodations, ” (2) to teach summer school for health as he had in prior years but was unable to do the most recent summer because of a delay in the fitness-for-duty determination, and (3) for his personnel file to review. [Id. at 241-42.] Mr. Maniscalco said no to Plaintiff's request regarding the “needs improvement” rating but told Plaintiff that he could teach summer school.[9] [Id. at 243.] According to Plaintiff, Mr. Maniscalco further stated, “I promise I will see to it personally that your schedule will be the same or better as this year” meaning that Plaintiff would be “teaching the same classes as this year [i.e., biology and co-taught academic reading biology] in one room or teaching all biology classes.”[10] [50-1 (Pl.'s Ex. D), at 9; 55-1 (Pl.'s Ex. K), at 65, 89, 92.]

         On May 9, 2014, Plaintiff received a summative rating of “proficient” for the 2013-14 school year. [21 (Def.'s Stmt. of Facts), at ¶ 34.] At a May 9, 2014 summative conference, Plaintiff said he was told by Dr. Gaubatz that he met all performance expectations, that he would be rated “proficient” for the 2013-14 school year, and that the only reason he was not rated “excellent” was because she “had to” write his Professional Growth Plan (PGP) that year. [60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 66.] Plaintiff noted his lack of choice in that matter. [Id.] Dr. Gaubatz did not send Plaintiff's 2013-14 evaluation form to the Illinois State Board of Education. [21 (Def.'s Stmt. of Facts), at ¶ 35.] On May 22, 2014, Plaintiff sent an email to Dr. Gaubatz raising his disability-related concerns and requested accommodations. Specifically, Plaintiff wrote:

Dr. Gaubatz retaliated 5 days later: instead of copying & pasting Summative “Areas for Growth” to my State form like she'd done prior 3 yrs, Dr. Gaubatz altered/reworked to portray me negatively on official State rating form that goes to Illinois School Board of Education (ISBE)-to falsely make it look like I'd been on an “Unsatisfactory” rating “remediation” plan for performance deficiencies “in all areas” during 13-14SY. I brought “Unsatisfactory” “remediation” implication to her attention; asked to change word, which she did. Did not catch full extent, though, until after submitted * * * [she also] omitted positives [she had written in his summative].

[60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 67.]

         During the 2013-14 school year, Plaintiff made numerous other complaints regarding Defendant's response to Plaintiff's requested accommodations. In one complaint, Plaintiff stated:

Dr. Gaubatz disregarded my disabilities/accom reqs during 13-14SY master sched. (Mar 2013). She had already determined most of colleagues' schedules but mine still in flux & “might be GeoPhysics, GeoPhysics AP Biology, Biology AP Biology, or Biology Biology AR. And, of course, those are just estimates at this point - it could be some other combination. I wish I could be more specific, but we have a lot of details up in the air.” My eventual schedule introduced more change when better all-biology-in-one-room sched existed. But opt. not presented or even discussed w/me; instead given to long-term sub.

[60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 64.] In another complaint, Plaintiff stated:

My employer failed to provide accoms 13-14SY; didn't even engage in discussion re: disability needs/reqs, if help needed for transition back to work, etc.; despite my employer's: (1) knowledge of my disabilities/reqs, med. leave, & started disability appg. w/benefits coordinator Cathy Hannon's help; (2) fit-for-duty reports that discussed my condition, disabilities, prior accoms req, hope for accoms on return or might have to go on disability, risk for relapse/worsening; (3) request & receipt of additional med. info from my psychiatrist; (4) return-to-work mtg I was required to attend that included attorneys' acknowledgment of med. diagnoses & stipulated work return conditions (e.g. weekly performance checks; wanted immediate notice from my psychiatrist if discontinued/didn't follow treatment- due to supposed, undocumented “risk” I posed to students/colleagues).

[60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 65.]

         D. 2014-15 School Year Schedule

          In February or March 2014, Dr. Gaubatz and Mr. Maniscalco advised Plaintiff that he was going to teach four sections of biology and one section of geophysics for the 2014-15 school year. [21 (Def.'s Stmt. of Facts), at ¶ 32.] On May 15, 2014, regional union representative Naomi Shepherd emailed Mr. Maniscalco on Plaintiff's behalf and asked him to honor the accommodation commitment he purportedly made on February 18, 2014 (i.e., that Plaintiff would be able to have the same schedule in one classroom or all biology classes). [60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 68.] She noted Plaintiff's proposed schedule did not conform to that commitment and that it put Plaintiff on two different curriculum teams. [Id.] She further noted that Mr. Maniscalco had yet to give an answer about returning a sick day to Plaintiff. [Id.] Mr. Maniscalco email replied and responded to the sick day inquiry only. [Id.] In a June 4, 2014 email reply to Mr. Maniscalco, which included union and District attorneys, Plaintiff wrote in part:

Regarding your “giving” me one extra biology, with respect, you simply repeated what my DC told you and had already earlier told me, which is why I need you to intercede and make good on your promise. The big picture issue, here, is that I need a more consistent teaching schedule akin to my colleagues. In the past four years alone I have had five different course preps with four different co-teachers spread over three different classrooms, including two co-taught classes not in 70/30 compliance. Next year's schedule represents a return to a class (geophysics) I haven't taught since the 11-12 SY and puts me on two different department teams (biology & geophysics). In addition, most science courses will be experiencing major curriculum changes next year as updates are made to align with NGSS (Next Generation Science Standards). As it stands, I'm now one of 2-3 science teachers tasked with working on two different curricula on two different teams, whereas the majority of my colleagues (16-17) are on one team. My health/disabilities have been adversely affected by the cumulative effects of my changing teaching schedule over the years. For the sake of my health/disabilities, I need your help.

[60-2 (Pl.'s Stmt. of Add'l Facts), at ¶ 69.]

         In August 2014, Plaintiff again was treated by Dr. Ndrio. [21 (Def.'s Stmt. of Facts), at ¶ 36.] When asked about whether Plaintiff was “incapable of performing duties as a teacher in August of 2014, ” Dr. Ndrio testified:

I mean, at this time knowing him for what, about more than a year, he was this patient that would miss appointment, would forget appointment. We'll give him scripts. He'll fall in the parking lot literally. We haven't had severe case of ADHD on adult side. So when he come and say, Dr. Ndrio, I can't focus. I am spread. They're giving me this teaching assignments; and, you know, I cannot handle it anymore. I would like to be taught in one subject. Given that he had major depressive disorder a year ago and, you know, looking at this picture, you know, I cannot handle it anymore. I would like to be taught in one subject. Given that he had major depressive disorder a year ago and, you know, looking at this picture, you know, it is very, very reasonable and fair from the therapeutic point of view to help this patient who have significant ADHD.

[21-2 (Ndrio Dep. Tr.), at 58-59.] Defendant contends that Dr. Ndrio “believed that [Plaintiff] was medically capable of performing the functions of a teacher.” [21 (Def.'s Stmt. of Facts), at ¶ 36.] However, the cited deposition testimony does not support that assertion. When asked whether Plaintiff was incapable of teaching more than one subject area, Dr. Ndrio stated: “Incapable, I don't know if that is the correct word. I will put it this way: That him teaching in different subject areas would have caused more anxiety, would have caused more stress and would have destabilized him, and I articulated it in my letter. So, yes, with a medical certainty that him being spread teaching it's my opinion.” [21-2 (Ndrio Dep. Tr.), at 61-62.] When asked again whether it was his medical opinion-to a reasonable degree of certainty-that Plaintiff was incapable of teaching more than one subject, Dr. Ndrio testified: “I will not say incapable. He could be capable.” [Id. at 62 (emphasis added).] Although Dr. Ndrio again testified that Plaintiff was medically capable of teaching more than one subject, Dr. Ndrio was cut off before he could fully explain how doing so would impact his condition. [Id.][11]

         In September 2014, Plaintiff requested that he be allowed to teach his geophysics class in the same room (Room 107) as he taught his biology classes. [50-1 (Pl.'s Ex. D), at 11.] (Plaintiff was reprimanded for teaching his geophysics class in Room 107 without permission.) [Id.] On October 1, 2014, Dr. Gaubatz wrote an email to Mr. Maniscalco stating:

GeoPhysics (and science in general) can be taught in any room, inside or outside, or really anywhere you have a skilled teacher; however, an optimal room for GeoPhysics, for both student learning and teacher collaboration opportunities, would be a room that is equipped for that content and used by teachers who teach that content.

[55-3, at 53.] Dr. Gaubatz goes on to explain the differences between Room 112 (Plaintiff's geophysics room) and Room 107 (his biology room). First, Room 112 had 6 computer statutes for geophysics team-designed lab investigations, while Room 107 did not have any computers. [Id.] Second, Room 112 had geophysics-centered posters, while Room 107 had biology-centered posters. [Id.] Third, Room 112 had geophysics lab equipment, while Room 107 had biology lab equipment. [Id.] Fourth, Room 112 had moveable tables for large motion labs, while Room 107 did not. [Id.] Finally, because there would be no other geophysics teachers in Room 107, there would be no geophysics papers on the side tables, writing on the whiteboard, etc. [Id.] In an email to Mr. Maniscalco from attorney William Gleason with the subject line “Room 112 VS 107, ” Mr. Gleason states: “I did review the email that you referenced. The first part ...


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