IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IRENE A. KUROWSKI, )

)

Plaintiff, )

)

v. )

) No. 12 C 1967

ERIC K. SHINSEKI, Secretary, U.S. Department )

of Veterans Affairs, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, Chief Judge:

Plaintiff Irene Kurowski alleges that the U.S. Department of Veterans Affairs (“VA”)

unlawfully terminated her from her employment on July 28, 2008. Kurowski alleges that she was 

fired because of her disability in violation of the Rehabilitation Act, 29 U.S.C. 794(a) (Count I), 

because of retaliation for her request for an accommodation for her disability, also in violation of 

the Rehabilitation Act (Count II), and because of her sex in violation of Title VII of the Civil 

Rights Act, 42 U.S.C. § 2000e-2 (Count III). (Dkt. No 1 (“Compl.”).) The VA now moves for

summary judgment on all counts (Dkt. No. 27), and for the reasons stated below the motion is 

granted. 

FACTUAL BACKGROUND

Irene Kurowski was employed full time by the Department of Veterans Affairs as a sales 

associate at a canteen in the Edward Hines, Jr. VA Hospital in Hines, Illinois beginning in 1988. 

(Dkt. No. 31 (“Pl.’s SMF”) ¶ 1.) Her duties at the canteen included checking out customers and 

stocking merchandise (Id. ¶ 3), and her supervisors included Assistant Canteen Chief Debbie 

Siedschlag and Canteen Chief James Sipple (Id.¶ 2).
2

Kurowski testified that she was diagnosed with osteoarthritis in both knees in 2007 (Id.

¶ 4), although her condition did not prevent her from performing her job duties without 

accommodation (Dkt. No. 29 (“Def.’s SMF”) ¶ 52). On January 14, 2008, Kurowski underwent 

surgery on her right foot to correct four hammer toes. (Pl.’s SMF ¶ 5.) The VA approved leave 

under the Family Medical Leave Act from January 14 through April 14 to allow Kurowski to 

recover. (Id. ¶ 6.) Thereafter Kurowski’s doctor allowed her to return to work, but recommended 

that she work only four to six hours per day, take breaks to elevate and ice her foot, and be 

provided a chair at her work station. (Id. ¶ 7.)

Because the canteen was under construction, Sipple could not provide Kurowski a chair at 

the cash register. Instead, Sipple placed a chair outside the canteen and allowed Kurowski to take 

breaks whenever necessary. (Id. ¶ 8; Def.’s SMF ¶ 26.) Kurowski testified that the standing caused 

her foot to be “very bothersome” and “very, very painful.” (Dkt. No. 31, Ex. 20, at 103:19-104:1.) 

Also, although the first week back Kurowski worked only six-hour shifts, during the second week 

she returned to eight-hour shifts. (Pl.’s SMF ¶¶ 8, 14.) As a result, about a week after she started,

she approached Sipple to ask for additional time off without pay to recover. (Id. at 104:20-105:14; 

see also Pl.’s SMF ¶ 9.)

1 According to Kurowski, Sipple denied the request for additional leave. 

(Pl.’s SMF ¶ 13.) 

 

1 The VA points out that Sipple does not recall this request, and that there is no medical 

documentation showing that it occurred. (Dkt. No. 41 (Def.’s Resp. Pl’s SMF”) ¶ 11.) Those facts 

do not constitute evidence refuting Kurowski’s testimony, and her testimony is thus accepted as 

true. See L.R. 56.1(b)(3)(B).
3

Near the end of April 2008, Sipple proposed that Kurowski be transferred to the food court 

so she could have easier access to sitting breaks, and Kurowski accepted the transfer. (Def.’s SMF 

¶ 32.) In the food court, Kurowski’s duties included working as a cashier, stocking products, 

cleaning the customer service area, pushing carts, and wiping tables. (Pl.’s SMF ¶ 22.) While 

performing this work, Kurowski testified that she favored the foot which had not undergone 

surgery, causing her osteoarthritis to be aggravated. (Id. ¶ 23.) John Hardesty, Kurowski’s 

supervisor at the food court (Id. ¶ 16), noted that Kurowski frequently complained about the pain 

while working, and that she walked with a cane because of the pain (Id. ¶ 27). According to 

Kurowski, Hardesty told her once that she looked like Charlie Chaplin when she walked with the 

cane. (Def.’s SMF ¶ 61.) Hardesty also testified at his deposition that he occasionally saw 

Kurowski walking briskly without a cane, “[a]lmost like Charlie Chaplain [sic] would.” (Pl.’s 

SMF ¶ 27; see also Dkt. No. 29, Ex. G, at 20:17-24.) 

On June 16, 2008, Kurowski called Hardesty and told him that she could not come to work 

because of storm damage to her condo. (Pl.’s SMF ¶¶ 30-32.) Specifically, she stated that she 

could not lock the door to her balcony because of the storm, and that she could not leave because 

workmen who were tuckpointing the building alongside the balcony would have access to her 

condo. (Id.) On June 27, 2008, Sipple issued Kurowski a notice indicating that he planned to 

terminate her for her failure to report to work on June 16, 2008. (Id. ¶ 38.) Kurowski was 

ultimately terminated by region manager Neil Toyne effective July 28, 2008, because of her 

absence on June 16 and her past disciplinary record. (Id. ¶ 39; Def.’s SMF ¶ 51.)
4

LEGAL STANDARD

A grant of 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). The movant bears the initial responsibility of informing the court of the basis for its 

motion and identifying the evidence it believes demonstrates the absence of a genuine issue of 

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “There is no genuine issue of 

material fact when no reasonable jury could find in favor of the nonmoving party.” Brewer v. Bd. 

of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a motion for summary 

judgment, the court must consider the facts in the light most favorable to the nonmoving party, 

drawing all reasonable inferences in the nonmoving party’s favor. Woodruff v. Mason, 542 F.3d 

545, 550 (7th Cir. 2008). The court does not make credibility determinations or weigh conflicting 

evidence. McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010).

ANALYSIS

The Rehabilitation Act shields “a ‘qualified individual with a disability’ from 

discrimination solely because of his disability in any program receiving federal financial 

assistance.” Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004) (quoting 29 U.S.C. § 794(a)). To 

determine whether an individual suffered discrimination on the basis of her disability, the 

Rehabilitation Act applies the same standards as the Americans with Disabilities Act of 1990 

(“ADA”). Id.

2 A claim under the Rehabilitation Act or the ADA requires the plaintiff to show, 

 

2 The ADA was significantly amended effective January 1, 2009. See ADA Amendments 

Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. These amendments do not apply retroactively, 
5

among other things, that he “suffers from a disability as defined under the Act.” Branham, 392 

F.3d at 902 (citation and quotation marks omitted). A person with a disability is “any person who 

(i) has a mental or physical impairment which substantially limits one or more of such person’s 

major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an 

impairment.” 29 U.S.C. § 705(20)(B). Kurowski does not contend that she is disabled under 29 

U.S.C. § 705(20)(B)(ii) or (iii), but instead focuses on (i).

The VA’s summary judgment motion contends that, under subsection (i), Kurowski cannot 

bring forward sufficient evidence to allow a reasonable jury to conclude that she is disabled. Stein 

v. Ashcroft, 284 F.3d 721, 727 (7th Cir. 2002) (“It is the plaintiff’s burden on summary judgment 

to demonstrate that he can come up with evidence to show he could meet his ultimate burden of 

showing a recognized disability.” (citation, quotation marks, and alteration omitted)).

Specifically, the VA notes that “[d]isability does not include temporary medical conditions.” 

Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999); accord Vande Zande v. State of Wis. 

Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995) (“Intermittent, episodic impairments are not 

disabilities, the standard example being a broken leg.”). Moreover, Kurowski testified that her foot 

was “pretty much healed” from surgery by September 2008, and was completely healed in March 

2009. (Def.’s SMF ¶ 55.) Accordingly, the VA contends that Kurowski’s foot condition was 

temporary and cannot constitute a disability. 

 

however, and are thus not applicable to this case, in which the alleged violations predate January 1, 

2009. Hanson v. Caterpillar, Inc., 688 F.3d 816, 819 n.2 (7th Cir. 2012).
6

In response, Kurowski does not contend that her foot condition following surgery was a 

disability. (Dkt. No. 39, at 7-9.) Nor does she argue that her osteoarthritis prior to the surgery was 

a disability. Indeed, she admits that the osteoarthritis did not limit her ability to work.3 (Def.’s 

SMF ¶ 52.) Kurowski asserts, however, that “her osteoarthritis, coupled with the failure to 

reasonably accommodate her related foot surgery, significantly affected her major life activities of 

walking and working.” (Id. at 8.) In support of that theory, Kurowski relies on her testimony that 

the work she performed while recovering from her foot surgery caused her to favor one foot over 

the other, leading to a worsening of her osteoarthritis. (Pl.’s SMF ¶ 23.) It is this worsened 

osteoarthritis following the aggravation that Kurowski identifies as her disability.

For the osteoarthritis to constitute a disability, it must substantially limit one of Kurowski’s 

major life activities. To meet that standard, 

the impairment must make the individual “unable to perform a major life activity 

that the average person in the general population can perform” or “significantly 

restricted as to the condition, manner or duration under which an individual can 

perform a particular major life activity as compared to the average person.” An 

impairment need not cause an “utter inability” to perform the major life activity in 

order to constitute a substantial limitation on that activity.

Branham, 392 F.3d at 902 (citations and alterations omitted). In an attempt to meet that standard, 

Kurowski states in her response that, as a result of the aggravation of her osteoarthritis, she must 

 

3 See Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 623 (7th Cir. 2012) (“[W]hen the 

major life activity of working is at issue, an individual must be regarded as ‘significantly restricted 

in the ability to perform either a class of jobs or a broad range of jobs in various classes as 

compared to the average person having comparable training, skills and abilities.’” (citation 

omitted)).
7

still walk with a cane and continues to receive medical treatment. To support that claim, she cites 

pages 148-158 and 179-181 of her deposition. (Dkt. No. 31, Ex. 20.) Kurowski does not state in 

her testimony on those pages that she still uses a cane, and does not address the long-term 

condition of her osteoarthritis except as follows: 

Q. And how about your osteoarthritis in your knees? How is the condition with 

that?

A. It’s painful, but it’s manageable with medicine that I’m on. I’m too young. They 

wouldn’t do a knee replacement. They told me I’m too young.

Q. So you’re taking medication for the osteoarthritis?

A. Yes.

Q. And that’s effective?

A. Yes.

(Id. at 180:17-181:1.) That testimony is plainly inadequate to establish that Kurowski’s 

osteoarthritis, even after aggravation by her foot condition, was a disability under the 

Rehabilitation Act. Indeed, Kurowski’s testimony tends to show the opposite. Kurowski stated that 

her condition is “manageable” and that medication is “effective.”

Kurowski points to no other evidence to prove that, on a long-term basis, her osteoarthritis 

substantially limits a major life activity.4 Moreover, the court “will not search the record in an 

attempt to make [Kurowski]’s arguments for her.” Stein, 284 F.3d at 725. Accordingly, Kurowski 

has not met her burden on summary judgment of pointing to evidence adequate to show that she is 

 

4 Kurowski does point to evidence showing that she was in additional pain because of her 

osteoarthritis following her foot surgery, and that she needed assistance shopping and took fewer 

showers during that time. (Dkt. No. 31, Ex. 21, at 15-18; Dkt. No. 31, Ex. 20, at 148-158; Dkt. No. 

39, at 3.) She does not, however, present any evidence that those conditions were more than 

temporary, or that the pain limited her ability to walk or to do her work. To the contrary, the 

evidence Kurowski cites indicates that she was able to perform her work duties even while her foot 

was still recovering, albeit with pain and some difficulty. (See Dkt. No. 31, Ex. 20, at 

148:21-149:7; 149:12-150:1.)
8

disabled under the Rehabilitation Act. Povey, 697 F.3d at 624 (“Having failed to meet her burden 

to demonstrate that she was disabled under the ADA, Povey is not protected by its provisions.”). 

II. Retaliation under the Rehabilitation Act

Kurowski also alleges that she was terminated in retaliation for her requests for reasonable 

accommodation under the Rehabilitation Act. It is well established that “[e]mployers are forbidden 

from retaliating against employees who raise ADA claims regardless of whether the initial claims 

of discrimination are meritless.” Povey, 697 F.3d at 624 (citation and quotation marks omitted). 

Kurowski attempts to establish retaliation under the direct method of proof, which requires her to 

offer evidence that: “(1) she engaged in statutorily protected activity; (2) the defendant subjected 

her to an adverse employment action; and (3) a causal connection existed between the two events.” 

Id. The only evidence that Kurowski offers of a causal connection between her requests for 

accommodation and her termination is the timing of her firing, and her testimony that Hardesty 

ridiculed her for her accommodation requests by comparing her to Charlie Chaplin, an actor in 

silent movies with a distinctive walking style. (Def.’s SMF ¶ 61; Dkt. No. 39, at 12.) The 

proximity of Kurowski’s firing to her requests for accommodation, by itself, “is not sufficient to 

create a genuine issue of material fact to support a retaliation claim.” Povey, 697 F.3d at 624. 

Hardesty’s comment about Charlie Chaplin is also insufficient because Toyne, not Hardesty, made 

the decision to terminate Kurowski. Kurowski presents no evidence showing that Hardesty’s 

animus toward her, which the court infers in Kurowski’s favor, can be attributed to Toyne.5

 

5 Kurowski also contends that Sipple’s denial of her request for leave, his decision to 

transfer her to the food court, and his denial of her request to work 4-6 hour shifts constitute 
9

Kurowski thus has not presented sufficient evidence supporting her retaliation claim to survive 

summary judgment.

III. Gender Discrimination

Finally, Kurowski does not present any evidence or argument regarding her gender 

discrimination claim in her response to the VA’s summary judgment motion. (Dkt. No. 39.) The 

court will deem that claim abandoned. See Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 

2003) (“[B]ecause Palmer failed to delineate his negligence claim in his district court brief in 

opposition to summary judgment or in his brief to this Court, his negligence claim is deemed 

abandoned.”)6

CONCLUSION

For the reasons explained above, the VA’s motion for summary judgment (Dkt. No. 27) is 

granted. Judgment in favor of the VA is entered on all counts of Kurowski’s complaint. Civil Case 

Terminated. 

ENTER:

_______________________________

JAMES F. HOLDERMAN

Chief Judge, United States District Court

Date: April 5, 2013

 

adverse employment actions. There is no evidence that any of those decisions can be attributed to 

Hardesty’s alleged animus either. 

6 Kurowski does present argument relative to a claim of race discrimination. (Dkt. No. 39, 

at 12-13.) She did not allege, however, that she was improperly fired on the basis of her race, and

no such claim is currently pending before the court. (See Compl.)