IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANICE LAROSA, on Behalf of

NOEL LAROSA, a Minor,

Plaintiff,

v.

WALGREEN CO. and TAKE CARE

HEALTH SYSTEMS, INC.,

 Defendants.

Case No. 12 C 932

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion for Summary Judgment. 

For the reasons stated herein, the Motion is granted.

I. BACKGROUND

Plaintiff Janice LaRosa (hereinafter, the “Plaintiff” or

“Janice”) brings this disability discrimination action on behalf of

her minor son, Noel LaRosa (“Noel”). Defendants have moved for

summary judgment. The facts that follow are undisputed except

where noted. 

Before getting to the alleged discrimination, some background

on Noel is pertinent. Noel was born with amniotic band syndrome,

a congenital disorder that resulted for him in birth defects. Many

of Noel’s fingers and toes are missing, deformed, or weakened. 

Noel’s surgery to repair a cleft palate left him with scars on his

face. Because he has deformities in his nasal passage, his speech
is difficult to understand. Noel spent the first seven years of

his life in a Chinese orphanage, until Janice and her husband

brought him to the United States as their adopted son. Now a

teenager, Noel maintains an active, social lifestyle despite his

limitations. Janice testified that Noel is very good at hiding his

hands by folding them or putting them in his pockets; even friends

who have known Noel for years do not realize the extent of his

deformities. Noel concentrates his athletic efforts on soccer, a

sport that does not require much manual dexterity and allows Noel

to develop and use his lower-body strength and agility. 

The alleged discrimination took place on August 10, 2011, the

first day of tryouts for the soccer team at New Trier High School. 

Noel, a freshman at this point, had been looking forward to and

preparing for this day for some time. When they arrived at the

tryout that morning, Janice and Noel were surprised to learn that

Noel could participate only if he had completed a sports physical

(apparently, a poorly-worded letter from the school led them to

believe that the physical was necessary only if Noel made the

team). The coach agreed to let Noel join the tryout the next

morning if he completed the physical by then. Understandably,

Janice and Noel were taken by an urgent need to complete the

physical that day – otherwise Noel would miss his chance to try out

for the school team his freshman year, all but guaranteeing that he

would never play for the school in subsequent years as well. 

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Noel’s primary physician was out of the office, so Janice took

him to the Take Care Clinic in the Northfield Walgreens (“the

Clinic”). Once there, Janice filled out and turned in a

“preparticipation form” that detailed Noel’s medical history. 

Because relevant details about Noel’s birth family remain a

mystery, Janice was unable to answer some of the questions about

Noel’s family medical history. Clinic staff uses the questions

about a patient’s family history to screen for latent heart or

other conditions that could pose a risk if the child engages in

rigorous exercise. If a patient does not have his complete family

medical history, the Clinic will not clear him for sports without

first referring the patient to his primary physician for more

involved tests (which the Clinic is not equipped to conduct onsite). 

A medical assistant named Jennifer Ayala took the form and

began Noel’s exam by checking his “vitals,” such as his blood

pressure, pulse, vision, and height. Toward what appeared to be

the end of this part of the examination, Ayala realized that she

needed to weigh Noel, so she asked him to take off his shoes and

step on the scale. What happened next forms one of the central

factual disputes in this case: both Noel and Janice testified in

their depositions that Ayala looked at Noel’s feet and appeared

shocked by what she saw. Ayala testified that she typically does

not look at a patient’s feet and does not recall seeing Noel’s

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feet. Either way, Ayala left the room and returned a few minutes

later to take Janice and Noel to see Leigh Anne Harmon, the nurse

practitioner who conducts the actual examination. 

Harmon asked Janice why portions of the medical history form

were incomplete, and Janice explained that, because Noel was

adopted, she lacked the information necessary to answer the

questions. The parties agree that Harmon then terminated the

physical, but they disagree on the reason given. Both Noel and

Janice testified that Harmon said repeatedly that the Clinic does

not perform physicals on adopted children. Harmon denies giving

that reason and says that she explained to Janice the importance of

family medical history. Harmon also indicated that she cancelled

the examination because she realized that she was not going to be

able to clear Noel to participate in sports, and she did not want

Ms. LaRosa to be charged for an examination in which she would not

be able to clear Noel. Harmon Decl. ¶ 13. Janice and Noel left

the room, and Harmon called her supervisor, Audrey Collins, who

supported Harmon’s judgment. With the examination cancelled, and

with insufficient time left in the day to complete another

physical, Noel was left with no medical clearance and no chance to

make the team. 

Plaintiff understands that the Clinic may not have been able

to clear Noel to play sports without first understanding his family

medical history. What Plaintiff protests, however, is the Clinic’s

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“wholesale refusal to provide him with accommodation.” ECF No. 94

at 8. 

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if 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). 

A dispute is genuine 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 (1986). The Court construes

all facts and draws all reasonable inferences in favor of the nonmoving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). 

III. DISCUSSION

Section 504 of the Rehabilitation Act provides that “[n]o

otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability . . . be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). For the purposes of

this Motion, Defendants do not dispute that Noel is an individual

with a disability. 

For Plaintiff to survive summary judgment, she must show a

genuine factual dispute as to whether the discrimination

“result[ed] from the handicap and from the handicap alone.” 

Mallett v. Wis. Div. of Vocational Rehab., 130 F.3d 1245, 1257 (7th

Cir. 1997) (quotation omitted). Plaintiff concedes that she could

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not provide Noel’s family medical history. Clinic medical staff

had no way to know whether Noel’s blood relatives had a history of

cardiac and pulmonary ailments. Without the family medical

history, the Clinic would have had to conduct more extensive tests

before clearing Noel to play sports. The Clinic lacks the

equipment necessary for such tests, and there is no dispute that

the Clinic would not have been able to clear Noel for sports that

day, regardless of whether it finished the examination or cancelled

it only part of the way through. 

Plaintiff argues that Noel was subjected to discrimination

when the Clinic decided to cancel the examination instead of

completing the examination and not clearing Noel for sports. 

Plaintiff lacks any direct evidence of discrimination: there is no

evidence that any of Defendants’ employees stated that they were

turning Noel away because of his disability. Of course, it does

not matter that neither Ayala nor Harmon commented on Noel’s feet

– such smoking-gun evidence is rare and certainly not necessary to

prove discrimination. U.S. Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 716 (1983) (explaining, in the context of

employment discrimination, that “[t]here will seldom be

‘eyewitness’ testimony as to the employer's mental processes”). 

Plaintiff is left trying to prove this case through

circumstantial evidence. Plaintiff contends that Ayala gave her a

concerned look once she saw Noel’s feet. From there, Ayala left

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the room and spoke with Harmon, although it is unknown what she

said. Ayala then returned to Janice and Noel to take them to

Harmon, who ended the examination. Although the Court does not

weigh the evidence when ruling on a motion for summary judgment,

the Court can allow the case to proceed only if it can determine

that Plaintiff has put forth enough evidence to create a genuine

factual dispute. Plaintiff’s evidence is too speculative and thus

insufficient to allow a reasonable jury to infer that Defendants

discriminated against Noel on the basis of a disability. 

“Inferences that are supported only by speculation or conjecture

will not defeat a summary judgment motion.” McDonald v. Village of

Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).

As further support, the Court notes that the Rehabilitation

Act speaks in terms of “denied [] benefits.” 29 U.S.C. § 794(a). 

Plaintiff’s claim is unusual in that the benefit sought (or at

least one that Plaintiff concedes would not have violated the Act)

is nearly identical to the one Noel received. If the Clinic would

have been in compliance with the Act had it completed the

examination and not cleared Noel to play sports, it is hard to see

how the Clinic could violate the Act by simply cancelling the

examination. And Plaintiff concedes that the Clinic could not have

cleared Noel for sports that day – the Clinic would have had to

refer Noel to his primary care physician for more involved tests. 

Certainly it appears that confusion on that day caused Janice and

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Noel some anxiety, disappointment, and frustration that might have

been avoided. But either way, Noel would not have gotten his

medical clearance in time to join the tryout the next day. In

other words, the “benefit” that Plaintiff seeks is illusory, and

not one protected by the Rehabilitation Act. 

IV. CONCLUSION

For the reasons stated herein, Defendants’ Motion for Summary

Judgment [ECF No. 68] is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE: 3/25/2014

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