IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

KELLEY BENTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) No. 12 C 3075 

 ) 

ERIC K. SHINSEKI, Secretary, United ) 

States Department of Veterans Affairs, ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 Kelley Benton has sued Eric Shinseki, in his capacity as Secretary of the United 

States Department of Veterans Affairs, under the Rehabilitation Act of 1973, 29 U.S.C. 

§ 794a. She alleges that the Department of Veterans Affairs (VA), her former employer, 

discriminated against her based upon her disability when she was denied the 

opportunity to attend a training conference. Benton further alleges that her supervisor 

created a hostile work environment based on her disability. Shinseki has moved for 

summary judgment on both claims. For the following reasons, the Court grants the 

motion. 

Background 

 Three decades before her employment began at the VA, Benton was diagnosed 

with sickle-cell thalassemia, a disease that disrupts the blood flow to her extremities and 

incapacitates her for variable periods of time. Benton says the sickle cell crises 

(episodes) that she experiences can last from an hour up to three weeks and can be 

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triggered by a host of events, including overexertion, rain, stress, moderate walking, 

shoveling snow, the common cold, swimming, and humidity. 

 In 2005, Benton began working as an information technology specialist for the 

VA in the agency's office in Tuscaloosa, Alabama. She transferred to the VA's 

Maywood, Illinois office in 2007. Benton was part of a team of five IT specialists who 

worked in different VA locations across the country. Their supervisor, Donald Kachman, 

worked out of his home in Battle Creek, Michigan. 

 Benton first told Kachman about her disability in August 2008, when she wrote 

him an e-mail informing him she had just been in the hospital with a sickle cell crisis. In 

November 2008, Benton had shoulder surgery related to her sickle cell condition. 

Because the surgery required Benton to take pain medication, Benton's doctor wrote a 

note to the VA requesting that she be allowed to work from home for two weeks after 

the surgery. The request was approved, and Benton ended up working from home for 

approximately one month. 

 Just over a year after Benton first informed Kachman about her condition, she 

made a formal request for an accommodation, specifically, to perform her duties from 

home on an indefinite basis. Benton's first request was returned for insufficient 

documentation; her second (this time with documentation) was denied. The denial, 

written by Kachman in December 2009, advised Benton that the ability to work at the 

office was essential: 

[t]he position you currently occupy is a full time position that, due to the 

functions and equipment necessary to perform all of the essential 

functions of your position, requires you to be physically located in the 

area/location you are currently assigned. This is essential in order for SD 

& Core to provide the services required to fulfill and meet the mission and 

goals of our Service. 

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Def.'s Ex. E at 11. 

 In an exchange of memos and e-mails, Benton challenged Kachman's decision, 

noting that she had worked from home without incident after her shoulder surgery. 

Kachman replied that Benton was "not required to perform some of the essential 

functions of your position" during her work-from-home period. Id. at 26, 29–31. 

Kachman provided a list of five job functions that he said required Benton's presence in 

the office. These included testing multiple configurations of machines, having "reliable 

network connectivity and a constant connection" for specific tasks, scanning machines 

on the VA network that were not accessible via virtual private network (VPN), working 

with staff on site in the Maywood facility, and having "[a]ccess to a multitude of 

equipment" with "the space, power, and network connectivity for each of those devices." 

Id. at 30–31. Kachman said later during his deposition that the ability of an employee in 

Benton's position to test machines is difficult when the employee is not directly on the 

network, and that it is important to be able to test solutions on a variety of equipment on 

site and to act quickly in doing so. 

 In a response to Kachman's memo, Benton did not dispute the existence of any 

of the duties Kachman mentioned or his statement that they could not be performed 

adequately from home. Instead, she argued that Kachman did not comprehend her 

disability, disputed that she had a pattern of absences, and stated that she was "able to 

do my job 100%." Id. at 36–38. She also said, "I understand that [Kachman] is saying 

that my job is not qualified to be a work from home job," and, "I want to reiterate that I 

understand that my job does not qualify as a work from home job." Id. 

 Kachman did offer Benton some accommodations. In response to Benton's 

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request for a private office at the Maywood facility, Kachman pointed to the office's 

compliance with health and safety standards and instead offered her a parking spot 

close to the building. Benton rejected this offer, stating that "all of my coworkers will 

notice that I'm parking in front and will ask me why." Id. at 38. Soon after that 

exchange, Kachman permitted Benton to forego a planned change in her hours to 

conform with those of other team members so that she would be able to submit blood to 

a testing lab before she came into work. On the other hand, Benton also resubmitted 

her work-from-home request, this time asking to do so two or three times a week or on 

an as-needed basis. Kachman denied this request. 

 In subsequent weeks and months, Benton and Kachman had several e-mail 

exchanges regarding Benton's performance, duties, and attendance at work. Topics 

included team conference calls Benton was required to join, her progress on various 

assignments, and her knowledge related to various tasks she was required to perform 

and "milestones" she was required to achieve. In another e-mail exchange, a coworker 

praised Benton for her contribution on a project, and Kachman responded by asking the 

coworker what Benton had done. Kachman's response was arguably worded in a way 

that suggested he doubted that Benton had actually contributed anything. The 

coworker responded with specifics, and Kachman did not respond. 

 During this time, in the first half of 2010, Kachman had taken notice of various 

work tasks that Benton was not completing, including "very basic tasks; building 

servers, manipulating group policies, and active directories." Def.'s Ex. B at 34. When 

Benton would have these issues, Kachman would tell her "that she needed to work on 

these problems herself rather than going to other employees." Id. at 35. In April 2010, 

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three months after denying Benton's request to work from home, Kachman sent Benton 

a memo entitled "Warning Notice of Unacceptable Performance/Opportunity to 

Improve." Def.'s Ex. I. The memo informed Benton that her performance "since early 

Nov 2009" had been "unacceptable" in three "critical elements" of her position. Id. at 1. 

Kachman noted multiple incidents in which Benton had performed poorly, such as failing 

to meet requirements in lab testing, failing to complete tasks without assistance, 

demonstrating lack of knowledge on specific projects, and including errors in submitted 

projects. The memo informed Benton she would be placed on a ninety-day plan to 

improve performance. The next month, Kachman sent Benton an e-mail asking about 

some of her apparent absences from the Maywood office. Benton told Kachman his 

query was "ridiculous," that he was "obviously retaliating against me and trying to find 

anything you can," and that he was "creating a very hostile work environment" which 

was damaging her health. Pl.'s Ex. 2 at 39–40. 

 In May 2010, Kachman e-mailed Benton to inform her that she could not attend 

an upcoming Microsoft training conference in New Orleans called TechEd. Kachman's 

e-mail stated that he wanted to help her find online training instead of traveling to New 

Orleans, "to accommodate your training needs as well as your need for FMLA," 

referring to her recent request for time off under the Family and Medical Leave Act. Id.

at 29–30. Kachman told Benton to cancel her hotel booking in New Orleans. He 

provided the URL for a Microsoft website where she could pick online training courses 

to take. "Please take a look and decide which courses would benefit your technical 

advancement," Kachman wrote. "Once you have a list, we can review together and 

submit them to management." Id.

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 Although Benton replied to Kachman's e-mail, apparently with an attachment 

listing the classes she wished to take, that list was not submitted as an exhibit by either 

party in this case. Benton never took the online courses, however. In an affidavit made 

after her disability retirement, Benton stated that she selected classes from the list 

Kachman sent out of fear that he "would have retaliated against me"; she also 

acknowledged that she had never completed the training. See Pl.'s Ex. 5 at 8. 

 Kachman explained to a VA investigator that he had denied Benton's travel to the 

conference because she "had advised me that her condition could flare up during air 

travel and cause her to have complications." Def.'s Ex. B at 24. In an internal 

investigation of the denial of training, Kachman told an investigator that "[t]he online 

training provided was directly from Microsoft and would have been similar to what she 

would have seen in the labs during the conference." Def.'s Ex. B at 24. Kachman also 

told the investigator that only one of his employees had gone to the New Orleans 

conference. During her deposition, Benton acknowledged that she was offered online 

training but argued she should have been able to attend the conference "[b]ecause I 

wanted to go. I should make that decision." Def.'s Ex. A at 66–67. Benton has offered 

no evidence, however, contradicting Kachman's statement that the online training was 

similar to what Benton would have gotten during the conference. 

 The next month, Benton took leave under the FMLA after she was hospitalized 

for a blood clot. She later took disability retirement and did not return to employment at 

the VA. 

Discussion 

 Summary judgment is appropriate if "there is no genuine dispute as to any 

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material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(a). On a motion for summary judgment, the Court must give "the non-moving party 

the benefit of conflicts in the evidence and reasonable inferences that could be drawn 

from it." Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 

2013). "A genuine issue of material fact exists only if there is enough evidence that a 

reasonable jury could return a verdict in favor of the nonmoving party." Peele v. Burch, 

722 F.3d 956, 958 (7th Cir. 2013). 

 Shinseki has moved for summary judgment on both of Benton's claims. On 

Benton's Rehabilitation Act discrimination claim, Shinseki argues that Benton was not 

qualified to perform the essential functions of her position and that Benton did not suffer 

an adverse employment action in being denied the opportunity to attend the New 

Orleans training conference. On Benton's hostile work environment claim, Shinseki 

contends that the cited behavior by Benton's supervisor did not rise to the severe or 

pervasive level required for a finding of a hostile environment, nor was it connected to 

her disability. 

1. Disability discrimination claim1

 Although Benton sued Shinseki under the Rehabilitation Act, a discrimination 

claim under that law is evaluated under the same standards in the Seventh Circuit as a 

claim under the Americans with Disabilities Act (ADA). Burks v. Wisc. Dep't of Transp., 

464 F.3d 744, 756 n.12 (7th Cir. 2006). The Court thus will evaluate Benton's claim 

under ADA standards. To survive a motion for summary judgment, "an ADA plaintiff 

must identify a genuine issue of material fact as to whether (1) she is disabled; (2) she 

 

1

 Benton has not asserted a claim of failure to accommodate arising from the VA's denials of her 

requests to work at home. 

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is able to perform the essential functions of the job either with or without reasonable 

accommodation; and (3) she suffered an adverse employment action because of her 

disability." Majors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013). 

 Shinseki does not dispute that Benton can prove that she is disabled. He 

contends, however, that Benton cannot show that she could perform the essential 

functions of her position without the accommodation of working from home, which 

Shinseki argues is not a reasonable accommodation. He further claims that Benton 

was not subject to an actionable adverse employment action. 

 a. Essential Functions and Reasonable Accommodations 

 Much ink is spilled in the parties' arguments regarding Benton's discrimination 

claim on whether she " would have been able to perform the essential functions of her 

job with a reasonable accommodation," an element of her discrimination claim. Basden 

v. Prof'l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013). Shinseki's arguments focus 

on whether allowing Benton to work at home would have been a reasonable 

accommodation that would have permitted her to perform her job's essential functions. 

 This is a non-issue, in the Court's view. Given the narrowing of the claim to the 

denial of training, the question is whether, at the time of the denial of training, Benton 

was able to perform the essential functions of her job. A reasonable jury could so find; 

indeed, the question is not close. Benton was working at the office at the time (May 

2010) and was performing her job's essential functions, at least based on her April 2010 

performance review. The fact that she might not have been able to continue to work 

entirely from the office in the longer term is immaterial with regard to her narrowed 

discrimination claim, which focuses on a single incident. 

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 b. Adverse employment action 

 In her summary judgment response brief, Benton narrows her discrimination 

claim to a single alleged adverse employment action: Kachman's refusal to allow her to 

travel to the New Orleans TechEd training conference in 2010. Benton argues that the 

denial qualifies, without more, as actionable adverse action: "Plaintiff does not have to 

show that the denial of job training affected her compensation, benefits, hours worked, 

job title, or ability to advance to be an adverse action in the context of her ADA 

discrimination claim. . . . Under the ADA, if she was denied training, she has suffered an 

adverse job action." Pl.'s Mem. at 13. 

 The ADA lists the following areas in which employers may not discriminate 

against qualified individuals on the basis of their disabilities: "job application procedures, 

the hiring, advancement, or discharge of employees, employee compensation, job 

training, and other terms, conditions, and privileges of employment." 42 U.S.C. 

§ 12112(a). The Seventh Circuit has indicated that the express inclusion of "job 

training" among the subjects protected by the ADA relieves plaintiffs of the obligation to 

show that a denial of job training was materially adverse. See Hoffman v. Caterpillar, 

Inc., 256 F.3d 568, 574–77 (7th Cir. 2001) (applying rule in case with direct evidence of 

discrimination). 

 The problem with Benton's argument is that the evidence shows she was not 

denied training. Although Kachman did not let her travel to New Orleans for the inperson TechEd training conference, Bention does not dispute that she was offered the 

opportunity to choose online training courses as an alternative. The online training was 

from Microsoft, the same entity responsible for the TechEd conference. Benton has not 

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argued, and she has offered no evidence, that the online training Kachman offered her 

was in any way inferior to what she would have received had she traveled to New 

Orleans for TechEd. In short, Shinseki has offered undisputed evidence that the 

training that Kachman offered to Benton "was directly from Microsoft and would have 

been similar" to TechEd. Def.'s Ex. B at 24. What is important from an 

ADA/Rehabilitation Act perspective is what the training involved, not where it took place. 

 Benton's case does not resemble Hoffman, in which a one-handed employee 

was denied altogether the ability to train on a specific device because her employer 

thought she was incapable of operating it. See Hoffman, 256 F.3d at 570–71. Nor is it 

like Shaner v. Synthes, 204 F.3d 494, 503–04 (3d Cir. 2000), one of the few other 

appellate cases to address denial of job training in an ADA context. There, a supervisor 

would not allow an employee to receive training on Microsoft Excel because it was not 

germane to his job. Id.

 Because Benton has not offered evidence from which a reasonable jury could 

find that she was actually denied training, her discrimination claim cannot proceed. 

2. Hostile work environment claim 

 In general, a plaintiff making a hostile environment claim under the ADA "must 

follow the methodology already established in the parallel area of Title VII litigation." 

Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999).2

 As applied here and in other 

disability cases, the test for hostile work environment has four parts: "(1) the plaintiff 

must be the object of unwelcome harassment; (2) the harassment must be based on 

 

2

 The Seventh Circuit has "not decided whether allowing a hostile work environment is 

actionable under the ADA." Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 603 (7th Cir. 2009). 

Shinseki has not argued, however, that Benton's claim is not legally viable on this basis, and 

thus he has forfeited that point for purposes of summary judgment. 

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disability; (3) it must be sufficiently severe and pervasive so as to alter the conditions of 

employment; and (4) there must be a basis for employer liability." Bellino v. Peters, 

530 F.3d 543, 551 (7th Cir. 2008). 

 Benton contends that after Kachman denied her work-from-home 

accommodation request, his treatment of her changed in a way that made her work 

environment pervasively hostile, due to her disability. Benton identifies over a dozen 

instances of conduct on Kachman's part. See Pl.'s Mem. at 14-15. These instances 

can be grouped in several categories: the denial of Benton's more limited work-at-home 

request; criticism regarding absenteeism; enhanced scrutiny of her work; pushing or 

requiring her to work on her own without seeking assistance from Kachman or coworkers; the previously-referenced denial of attendance at the New Orleans training 

conference; and putting her on the performance improvement plan. 

 Benton concedes that no individual incident was severe but argues that together 

they satisfy the requirement of pervasiveness. The requirement of "severe or 

pervasive" conduct ""is disjunctive—'one extremely serious act of harassment could rise 

to an actionable level as could a series of less severe acts.'" Hall v. City of Chicago, 

713 F.3d 325, 330 (7th Cir. 2013) (internal quotation marks omitted). "[C]onduct that is 

not particularly severe but that is an incessant part of the workplace environment may, 

in the end, be pervasive enough and corrosive enough that it meets the standard for 

liability." Jackson v. Cnty. of Racine, 474 F.3d 493, 499 (7th Cir. 2007). As the Seventh 

Circuit stated in Silk, "the whole can be greater than the sum of the parts, and . . . it is 

quite appropriate for a plaintiff to ask the trier of fact to draw an inference of 

discrimination from a pattern of behavior when each individual act might have an 

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innocent explanation." Silk, 194 F.3d at 807. 

 Benton must show that Kachman's behavior was both offensive to her personally, 

and that the environment was one that "''a reasonable person would find hostile or 

abusive.''" Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002) (quoting 

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)). In assessing this, a court 

examines the totality of the circumstances, including the frequency and severity of the 

conduct in question, "whether it is physically threatening or humiliating or merely 

offensive, and whether it unreasonably interferes with an employee's work 

performance." Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009). The 

bottom-line test is whether the conduct alleged "alter[ed] the conditions of the victim's 

employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 

 The Court concludes that no reasonable jury could find that the actions alleged 

meet the objective, reasonable-person component of this standard. Benton cites no 

case, nor is the Court aware of any, that indicates that enhanced scrutiny by a 

supervisor, even combined with criticism of job performance, can amount to an 

actionable hostile work environment. Although the Court certainly can imagine a case 

in which a supervisor constantly rides herd on a particular employee such that her work 

environment becomes pervasively hostile, no reasonable jury could find this to be such 

a case. The conduct that Benton cites did not pervade the workplace, nor was it 

incessant. Rather, it amounted to a couple handfuls of incidents over a period of a 

number of months. In addition, Benton has admitted that Kachman at times acted 

favorably toward her during the relevant period, which cuts against her claim of 

"pervasive" harassing conduct. For example, though Kachman denied Benton's 

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requests to work from home, he did offer her the accommodation of a parking spot 

closer to her work building, which she turned down. Kachman also gave Benton a 

positive performance rating in April 2010, and he allowed her to miss early conference 

calls when she had to submit blood for testing. Finally, the performance improvement 

plan was not onerous, and there is no basis for an inference that it imposed upon 

Benton any new job duties or requirements. 

 In sum, the alleged adverse incidents that Benton cites were sporadic and were 

insufficiently severe to permit a reasonable jury to find that they altered the conditions of 

her employment. Though Benton herself plainly believed she was being harassed, a 

jury could not reasonably find that her claim meets the objective element of the test for a 

hostile work environment. Shinseki is therefore entitled to summary judgment on this 

claim as well. 

Conclusion

 For the reasons stated above, the Court grants defendant's motion for summary 

judgment [docket no. 13] and directs the Clerk to enter judgment in favor of the 

defendant. 

 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: October 11, 2013 

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