United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Gettleman, United States District Judge.
Frank Pierri has brought a two count amended complaint
against his former employer, defendant Medline Industries,
Inc., alleging that defendant first discriminated against him
for his association with a person with a disability in
violations of the Americans with Disabilities Act, 42 U.S.C.
§ 12112(b)(4) (Count I), and then retaliated against him
for complaining (Count II). Defendant has moved for summary
judgment on both counts. For the reasons described below,
defendant's motion is granted.
began working for defendant in 2011 as an Associate Chemist.
After 90 days he was promoted to Chemist and then in December
2014 he was promoted to Chemist II. In that role he handled
Research & Development (“R&D”) work and
oversaw quality control (“QC”) work. He reported
to lab manager Rich Tyler.
mid-2015 plaintiff asked Tyler if he could work a modified
schedule so he could help care for his grandfather who had
liver cancer. Tyler allowed plaintiff to work four 10-hour
days instead of five 8-hour days, giving plaintiff one
weekday off as he had requested. Plaintiff worked that
schedule for approximately six months.
in November or December 2015, Tyler told plaintiff that he
would need to move back to a five day, 8-hour schedule,
claiming that plaintiff's work performance had suffered.
Defendant offered to allow plaintiff to work an alternative
five day schedule from Tuesday through Saturday, giving
plaintiff Monday off to help care for his grandfather.
Plaintiff declined that offer because he wanted to attend
school on Saturdays.
then went to the Human Resources Department
(“HR”) and was told that he could take Family and
Medical Leave Act (“FMLA”) leave to care for his
grandfather. He was approved to take 1 day of leave each
claims that after he began taking FMLA leave one day a week,
Tyler, with whom he had a friendly relationship, began to
harass him. He cites a number of incidents such as Tyler
yelling at him in front of co-workers, threatening to go
“over his head” for not doing projects assigned
at the end of the day, demanding to know where plaintiff was
when he had gone to the wash room, demanding that plaintiff
let Tyler know when plaintiff was going to lunch, subjecting
plaintiff to unwarranted criticisms about his work, demanding
that plaintiff fill out a “special worksheet” and
refusing to assign him R&D work which was the main basis
for plaintiff's bonus, and finally threatening to move
plaintiff's desk in front of Tyler's desk. Plaintiff
claims that after he reported Tyler's behavior to HR, it
became worse, forcing plaintiff to take FMLA leave for
anxiety and stress.
last worked on March 26, 2016. He was approved for FMLA leave
on March 30, 2016, and stayed on that leave through the end
of September 2016. He was then approved for short-term and
then long-term disability leave. He made no effort to return
to work. On March 28, 2017, defendant contacted
plaintiff's attorney to find out if plaintiff was
planning on returning to work, indicating that it would
terminate plaintiff if they did not hear back from him before
the end of the week. Two weeks later, after not hearing from
plaintiff, and over a year since plaintiff last worked,
defendant terminated him for failure to return to work.
has moved for summary judgment on both counts. Summary
judgment is appropriate when the moving papers and affidavits
show that there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A moving party can prevail on summary
judgment by either pointing to undisputed facts supported by
the record that demonstrate that it is entitled to judgment,
or it can point to an absence of evidence of an essential
element of the responding party's claim or affirmative
defense. Id. Once a moving party has met its burden,
the nonmovant must go beyond the pleadings and set forth
specific facts showing that there is a genuine issue for
trial. See Fed.R.Civ.P. 56(c); Becker v.
Tennenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (1990).
The court considers the evidence as a whole and draws all
inferences in the light most favorable to the nonmoving
party. Green v. Carlson, 826 F.2d 647, 651 (1987).
genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (186). The
nonmoving party, must, however, do more than simply
“show there is some metaphysical doubt about the
material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The mere existence of a scintilla of evidence in
support of the [nonmoving party's] position will be
insufficient, there must be some evidence on which the jury
could reasonably find for the [nonmoving party].”
Anderson, 477 U.S. at 252.
Count I, plaintiff alleges that defendant (specifically
Tyler) discriminated against him because of his association
with his grandfather. The ADA, 42 U.S.C. § 12112(b)(4),
prohibits an employer from discriminating against an employee
“because of the known disability of an individual with
whom [the employee] is known to have a relationship or
association.” As the Seventh Circuit has noted,
associational discrimination claims are unlike other ADA
claims “because employers are not required to provide
reasonable accommodations to non-disabled workers.”
Magnus v. St. Mark United Methodist Church, 688 F.3d
331, 336 (7th Cir. 2012). “Thus, an employee who cannot
meet the attendance requirements of [his] job is not
protected by § 12112(b)(4).” Id.
Seventh Circuit has identified three types of situations
within the scope of the associational discrimination
provision, all indicative of an employer's bias or
prejudice against the needs of a person with a disability,
which leads to punishment against a non-disabled employee
with a close association to the person with a disability.
Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir.
2004). The court identified the categories as: (1) expense,
because the person with the disability is covered by the
company's health plan; (2) “disability by
association, ” such as where an employee's
companion is ill and the employer fears the employee may have
also become ill, or such as when an employee's blood
relative has a genetic ailment and the employee is likely to
develop the ailment as well; and (3) distraction, such as
when the employee is somewhat distracted at work because a