UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LATANYA RODGERS, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 2:12-CV-530 JD

)

GARY COMMUNITY SCHOOL )

CORPORATION, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the: (1) “Motion for Summary Judgment,” filed by

Defendant, Gary Community School Corporation, on July 30, 2015 [DE 29]; and (2) “Objection

and Motion to Strike Plaintiff S.J. Exhibit A & Plaintiff’s S.J. Exhibit B,” filed by Defendant,

Gary Community School Corporation, on September 16, 2015 [DE 37]. For the reasons set forth

below, the Motion for Summary Judgment [DE 29] is GRANTED IN PART AND DENIED IN

PART. The Motion for Summary Judgment is GRANTED as to Counts II and III and the Clerk

is ORDERED to DISMISS WITH PREJUDICE Counts II and III of Plaintiff’s complaint. 

The Motion for Summary Judgment is DENIED as to the reasonable accommodation claim

under the ADA in Count I, which remains pending. The Objection and Motion to Strike [DE 37]

is DENIED. 

Background

Plaintiff, Latanya Rodgers, has been employed as a custodian by Defendant, the Gary

Community School Corporation (hereinafter “GCSC”), since 1995. In September 2011, Rodgers

was sexually assaulted by a co-worker who grabbed and kissed her before she was able to
escape. Rodgers claims she suffers from post-traumatic stress disorder as a result of the attack at

work. She brings three claims in the current lawsuit: Count I for violation of the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; Count II for retaliatory harassment and

discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5; and

Count III for intentional infliction of emotional distress. GCSC has moved for summary

judgment on all of Plaintiff’s claims.

Undisputed Facts

Rodgers is a custodian with GCSC [Rodgers Dep. at 102]. Her duties include cleaning

her assigned area and securing it [Id. at 103]. Normally her work schedule is between either

2:30 p.m. to 10:30 p.m. or 2:00 p.m. to 10:00 p.m. [Id. at 104]. Her supervisor is Mr. Kenneth

Smith, manager over operations [Id. at 105]. 

On September 16, 2011, Rodgers was sexually assaulted by a co-worker while she was

cleaning a restroom at the school [Comp. ¶ 1]. After the incident, Rodgers began to suffer panic

attacks [Rodgers Dep. at 23]. The employee responsible for the attack was fired by GCSC

based upon the incident [Id.]. Rodgers was sued by the co-worker in small claims court, she

counter sued, and received a judgment against him [Id. at 31]. 

Rodgers filed a workers’ compensation claim and received approximately $17,000 for the

claim [Rodgers Dep. at 101]. On February 22, 2012 (prior to her returning to work), Plaintiff’s

workers’ compensation mental health treatment provider, Mary Mirro, drafted a letter [DE 32-1]. 

The letter states that “Ms. Rodgers has been experiencing Post Traumatic Stress Symptoms since

the incident.” [Id.] The mental health treatment provider made several recommendations: (1)

there will always be proper lighting in the parking lot and around the school building and

2
dumpster area; (2) Rodgers or any custodial staff member should never be left alone in the

school building; (3) the custodial staff should work together as a team, for example, walk each

other out to the parking lot at the end of the shift; and (4) no person should take the garbage out

by themselves [DE 32-1]. According to Rodgers, her doctor wrote out the requested

accommodations, and “submitted those to, you know, my building people.” [Rodgers Dep. at

79.] Rodgers testified during her deposition that no one from GCSC ever sat down with her and

discussed the recommendations of Mirro dated February 20, 2012 [Id. at 174-75]. 

Dr. Michael Kovacich issued Rodgers a doctor’s note stating she “has been under my

care and has been released as of April 16, 2012.” [DE 30-5.] She felt forced to return to work

after Rodgers received a phone call from Defendant’s administrative personnel advising her that

her benefits would be terminated if she did not return to work [Rodgers Dep. at 51-52]. On April

16, 2012, Rodgers returned to work and has been working full-time as a custodian until the

present [Id. at 53]. 

On May 7, 2012, Rodgers’ workers’ compensation treatment provider drafted a second,

more detailed letter to GCSC saying Rodgers was referred to her by Lynn Karfomenos, a

medical case manager, nurse life care planner, and legal nurse consultant, and Mirro “concurred

with the diagnosis that was made from the EAP counseling service, Post Traumatic Stress

Disorder (PTSD).” [DE 32-2.] Mirro also stated in the letter that on January 20, 2012, Rodgers

presented as being “anxious, withdrawn and fearful.” [Id.] Mirro saw Rodgers twice during the

week of April 30, 2012, and the provider reported that “[a]lthough she feels very frustrated and

angry about the Gary School Corporation and how she has been treated, I believe that Ms.

Rodgers is realizing that she is stronger than she thought. I encouraged her to return to work and

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do the best that she could. She agreed to do so.” [DE 32-2 at 2.]

Rodgers testified during her deposition that GCSC did not consistently accomplish

Mirro’s requested accommodations. Specifically, she said about the school parking lot that

“they finally got some of the lights to work. They worked for a moment, but then they went

out.” [Rodgers Dep. at 176.] Ultimately, Rodgers said there was not a resolution to the lighting

issue [Id. at 177]. Rodgers also testified that the teamwork approach was never really

implemented, and there was no additional training for the custodial staff [Id. at 178-79]. After

she returned to work, Rodgers was put in a position where she was expected to take the garbage

out by herself [Id. at 179]. 

Rodgers gave deposition testimony that after the assault on September 11, 2011, she was

diagnosed by a GCSC doctor with high blood pressure, anxiety, panic attacks, syncopal stress,

and post-traumatic stress disorder, which she claims affect her daily life [Rodgers Dep. at 87-99,

157-59, 166-67]. She claims her conditions often prevent her from being able to think clearly, to

concentrate, they disrupt her sleep, and have affected her ability to interact and communicate

normally with other people [Id. at 7, 163-64, 166-67]. Rodgers testified that she suffered an

episode of stress-related syncope and high blood pressure shortly after she returned to work, and

the episode resulted in Rodgers being transported to the hospital [Id. at 68-69, 184-85]. Rodgers

was seen and treated in the emergency department on April 25, 2012, and was released with the

direction that “she may return to work in 3 days.” [DE 30-3.]

Rodgers filed a charge of discrimination with the Gary Human Relations Commission

and the Equal Employment Opportunity Commission (“EEOC”) dated May 23, 2012 [DE 30-1]. 

She received a right to sue notice from the EEOC on September 24, 2014 [Compl. ¶ 2]. The

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complaint also alleges that Rodgers was “denied a promotion or hiring to which she would have

been entitled.” [Id. ¶ 18.] 

Discussion

Summary judgment must be granted when “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 genuine

dispute 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 (1986). 

Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Id. In determining whether summary judgment is

appropriate, the deciding court must construe all facts in the light most favorable to the

nonmoving party and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt,

606 F.3d 355, 358 (7th Cir. 2010). “However, our favor toward the nonmoving party does not

extend to drawing inferences that are supported by only speculation or conjecture.” Fitzgerald v.

Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. England, Inc., 687 F.3d 297,

306 (7th Cir. 2012)).

A party opposing a properly supported summary judgment motion may not rely on

allegations or denials in her own pleading, but rather must “marshal and present the court with

the evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d

651, 654 (7th Cir. 2010). If the nonmoving party fails to establish the existence of an essential

element on which he or she bears the burden of proof at trial, summary judgment is proper. 

Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

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I. Motion to Strike

Preliminarily, the Court must address GCSC’s objection and motion to strike Plaintiff’s

Summary Judgment Exhibit A (a letter from Mary Mirro, Plaintiff’s workers’ compensation

mental health treatment provider, dated February 22, 2012), and Plaintiff’s Summary Judgment

Exhibit B (a letter from Mary Mirro dated May 7, 2012). GCSC argues the exhibits must be

excluded because Rodgers should have disclosed the identity of an expert and an expert report,

and because they are unauthenticated, contain hearsay, and have inconsistent and confusing

dates. 

Exhibit A is a letter from Mary Mirro that is dated February 22, 2012, and yet

confusingly refers to “the incident” at school occurring “last September 2012.” [DE 32-1]. 

Plaintiff responds that Rodgers testified about this document during her deposition with enough

specificity to render it admissible, and that the reference to the incident occurring in September

2012 “is clearly a typographical error by the author of the document.” [DE 41 at 3-4.] 

Additionally, Plaintiff contends that “[i]ssues concerning relevancy of exhibits, expert witness

status, hearsay contained within exhibits, and lack of proper foundation could easily have been

discussed and resolved by the parties even during the course of the deposition itself,” and argues

that because Defendant failed to raise these issues then, it has waived its right to now object. [Id.

at 8.]

Exhibit B is another letter from Mary Mirro that is dated May 7, 2012, but oddly not

signed by Mirro until September 10, 2012 [DE 32-2]. Plaintiff urges that the “inconsistency has

nothing to do with relevance whatsoever.” [DE 41 at 4.] 

With regard to a motion for summary judgment, “[a] party may object that the material

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cited to support or dispute a fact cannot be presented in a form that would be admissible in

evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis added). “In other words, the Court must

determine whether the material can be presented in a form that would be admissible at trial, not

whether the material is admissible in its present form.” Stevens v. Interactive Fin. Advisors, Inc.,

No. 11 C 2223, 2015 WL 791384, at *2 (N.D. Ill. Feb. 24, 2015). As the Seventh Circuit has

specifically noted, “the Federal Rules of Civil Procedure allow parties to oppose summary

judgment with materials that would be inadmissible at trial so long as facts therein could later be

presented in an admissible form.” Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014)

(emphasis in original). Therefore, to the extent the motion to strike challenges the exhibits as

containing hearsay, that objection is denied as Rodgers should be granted an opportunity to

attempt to present those facts at trial in an admissible form. 

Regarding authentication, the Federal Rules of Evidence provide that “the proponent

must produce evidence sufficient to support a finding that the item is what the proponent claims

it is.” Fed. R. Evid. 901(a). Proper authentication methods include, inter alia, testimony of a

witness with knowledge. Fed. R. Evid. 901(b)(1). “Rule 901 requires only a prima facie

showing of genuineness and leaves it to the jury to decide the true authenticity and probative

value of the evidence.” United States v. Harvey, 117 F3d 1044, 1049 (7th Cir. 1997). In this

case, to the extent GCSC challenges the authenticity of Exhibits A and B, the motion to strike is

denied. See, e.g., United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982) (finding the “very

act of production was implicit authentication.”); Kasten v. Saint-Gobain Performance Plastics

Corp., 556 F.Supp.2d 941, 948 (W.D. Wis. 2008) (rejecting authenticity challenge at summary

judgment as disingenuous where the challenged e-mails “were documents produced by defendant

7
during discovery”). Rodgers gave substantial testimony during her deposition to satisfy the

requirements of Rule 901 [Rodgers Dep. at 183-87]. Consequently, the exhibits will not be

excluded on the basis of authenticity.

GCSC also objects to these two exhibits because Plaintiff has not disclosed any expert

opinions or submitted any expert reports. “[A] party must disclose to the other parties the

identity of any witness it may use at trial to present evidence under Federal Rule of Evidence

702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). However, only those retained or specially

employed to provide expert testimony must submit an expert report complying with Rule

26(a)(2)(B). Fed. R. Civ. P 26(a)(2)(B). Rodgers contends Mirro is a treating physician and the

exhibits merely contain her conclusions and recommendations. [DE 41 at 6-7.] In this case, it

seems that Mirro was not retained or employed to provide expert testimony - she was the

workers’ compensation therapy provider. See Zurba v. United States, 202 F.R.D. 590, 591-92

(N.D. Ill. 2011) (citing Richardson v. Consolidated Rail Corp., 17 F.3d 213, 218 (7th Cir. 1994))

(“a treating physician is not considered a retained expert for purposes of Rule 26(a)(2) and thus

need not submit a report, if his testimony is based on observations made during the course of

treatment, the testimony was not acquired or developed in anticipation of litigation or for trial,

and the testimony is based on personal knowledge.”). Therefore, Rodgers did not need to file an

expert report for Mirro. 

The Court notes that if Plaintiff intends to use either Mirro or the EAP counselor as an

expert in her case at trial, Plaintiff should have disclosed those individuals. See Fed. R. Civ. P.

26(a)(2)(C) (requiring a witness who is expected to present evidence under Federal Rule of

Evidence 702, 703, or 705, who does not provide a written report, to still disclose the subject

8
matter on which the witness is expected to present evidence and a summary of the facts and

opinions to which the witness is expected to testify). Plaintiff is reminded about the duty of this

disclosure and that at trial, Plaintiff will have to qualify individuals as experts and satisfy the

elements of Rule 702 admissibility by laying a foundation for such opinions. 

Motions to strike are heavily disfavored, and usually only granted in circumstances

where the contested evidence causes prejudice to the moving party. Kuntzman v. Wal-Mart, 673

F.Supp.2d 690, 695 (N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303, 2007 WL

2228594, at *1 (N.D. Ind. July 30, 2007) (“In general, motions to strike are disfavored.”). Here,

the Court follows the permissive language in Olson, 750 F.3d at 714, and grants Plaintiff the

opportunity to oppose summary judgment with materials that are currently inadmissible because

she can later present them at trial in an admissible form. Therefore, the motion to strike [DE 37]

is DENIED.

II. Motion for Summary Judgment 

GCSC first argues that Rodgers failed to exhaust her administrative remedies [DE 30 at

5]. To bring a claim under the ADA, a plaintiff must first file a charge alleging the unlawful

employment practice with the EEOC and receive notice of a right to sue. See 42 U.S.C. §

12117(a). Generally, a plaintiff cannot file claims in a court of law that were not included in the

EEOC charge. See Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.

1994); see also Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (“[a]n aggrieved

employee may not complain to the EEOC of only certain instances of discrimination, and then

seek judicial relief for different instances of discrimination.”). 

However, an ADA plaintiff may bring a claim not included in the EEOC charge “if there

9
is a reasonable relationship between the allegations in the charge and the claims in the complaint,

and the claims in the complaint can reasonably be expected to grow out of an EEOC

investigation of the allegations in the charge.” Cheek, 31 F.3d at 500. Courts apply a liberal

reading of EEOC charges. Roesel v. Joliet Wrought Washer Co., 596 F.2d 183, 187 (7th Cir.

1979) (“Courts have consistently required a liberal reading of EEOC charges and have allowed

subsequent judicial proceedings to encompass any discrimination reasonably related to the

charge.”); Babrocky v. Jewel Food Co., 773 F.2d 857, 866 (7th Cir. 1985) (EEOC charges are

“to be construed with utmost liberality.”). Furthermore, Rodgers was pro se when she filed her

EEOC charge of discrimination, 

Rodgers alleges in the EEOC charge that she was sexually assaulted at work on

September 16, 2011, she was harassed and denied terms and conditions of employment by

GCSC, she was forced to return to work, she was denied “reasonable accommodations,” and she

was denied a position that she believed she was entitled to based upon seniority. [DE 30-1.] In

this case, the complaint and the EEOC charge are both based upon a single precipitating incident

(the sexual assault at work), and they both involve the same conduct, same individuals, and

decisions by the same people. The claims Rodgers lists in the charge for discrimination are

reasonably related to the charges in the complaint. Thus, she is not procedurally barred from

bringing her claims. 

1. ADA Claim

Count I of the complaint alleges that “GCSC has failed to consistently provide [ ]

reasonable accommodations” in violation of the ADA. [DE 30-2 at 4.] The ADA prohibits

employers from discriminating against their employees “on the basis of disability.” 42 U.S.C. §

10
12112(a); see also Silk v. Bd. of Trustees, Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d

698, 706 (7th Cir. 2015). To establish a violation of the ADA, an employee must show that: (1)

she is disabled; (2) she is otherwise qualified to perform the essential functions of the job with or

without reasonable accommodation; and (3) the employer took adverse action because of her

disability or failed to make a reasonable accommodation. Winsley v. Cook Cnty., 563 F.3d 598,

603 (7th Cir. 2009).1 To establish a prima facie case for failure to accommodate, Rodgers must

show that: (1) she is a qualified individual with a disability; (2) GCSC was aware of her

disability; and (3) GCSC failed to reasonably accommodate the disability. Kotwica v. Rose

Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011). 

One is “disabled” under the ADA if she has a physical or mental impairment that

substantially limits one or more major life activities, has a record of such an impairment, or is

regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g); see also

Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015). The ADA defines “major

life activities” as including, but not limited to, “caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. §

12102(2)(A). Additionally, the EEOC regulations add to the list of major life activities sitting,

reaching, and “interacting with others.” 29 C.F.R. § 1630.2(i)(1)(i). 

According to the recent Code of Federal Regulations (“C.F.R.”), the term substantially

limits “is not meant to be a demanding standard” and determining “whether an impairment

1

The Court notes that Congress amended the ADA, effective January 1, 2009, to broaden the class of

individuals who qualify as “disabled” under the statute. Pub. L. No. 110-325, 112 Stat. 3553. Although the

amendments are not retroactive, see Winsley, 563 F.3d at 600 n.1, because the alleged discriminatory actions in this

case occurred after 2009, the ADA amendments apply to Rodgers’ claims. 

11
‘substantially limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. §

1630.2(j)(1)(i) and (iii). The regulations further provide that the “term ‘substantially limits’ shall

be construed broadly and in favor of expansive coverage[.]” 29 C.F.R. § 1630.2(j)(1)(i). In

arguing that she fits the statutory definition of “disabled,” Rodgers contends that her condition of

post-traumatic stress disorder substantially limits the following major life activities: sleeping,

thinking, concentrating, interacting with people, and communicating. [DE 31 at 13.] 

Although neither party brought this regulation to the Court’s attention, there is a recent

regulation that lists post-traumatic stress disorder as an impairment that will “virtually always be

found to impose a substantial limitation on a major life activity.” 29 C.F.R. § 1630.2(j)(3)(ii). 

Indeed, the regulation expressly states that “it should easily be concluded that the following

types of impairments will, at a minimum, substantially limit the major life activities indicated: . .

. post-traumatic stress disorder . . . substantially limit[s] brain function.” 29 C.F.R. §

1630.2(j)(3)(iii). Keeping in mind this regulation and the ADA amendments which were

enacted to ensure broad coverage, the Court turns to analyzing whether Rodgers’ post-traumatic

stress syndrome substantially limits a major life activity. 

In her statement of additional undisputed facts, Rodgers states her “conditions often

prevent her from being able to think clearly or concentrate, disrupt her sleep, and have affected

her ability to interact and communicate normally with other people” and then cites to specific

pages and lines in her deposition. [DE 31 at 5.] The Court has carefully reviewed these

portions of Rodgers’ deposition cited in support of her claim that she is substantially limited in a

major life activity and recites below the pertinent excerpts:

- Rodgers testified that her medication makes it “hard to kind of think.” [Rodgers Dep.

at 7.] 

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- Rodgers testified that “it’s hard to concentrate from going through all this paperwork

and trying to keep up with everything – when I get a lot of paperwork, I get sick. I don’t

want to go through it. It’s hard to go through . . . everything’s got to be written down

now. It’s like I can’t even put that in my memory. . . . And then if something throws me

off, I walk in circles. It takes me a moment to regroup . . . . I think I got a little meaner.”

[Id. at 166-67.]

- Rodgers testified that “the damages that I incurred through this was fear, my

relationship with my husband changed, the intimidations that I used to have with being

around a man, and since [ ] grabbed me from behind, I’m not good with people standing

behind me no more. My health condition has changed. I never had anxieties and all that

stress issue. No. I never had those kinds of – where I get those tensions and stuff in my

neck and my body. I never had that – go through that since the incident happened. It’s

messed with my character. When I work with my peers, they don’t – they don’t interact

with me anymore.” [Id. at 163-64.] 

- As an example of Rodgers “difficulty organizing and communicating her thoughts” [DE

31 at 5], Plaintiff cites the following portion of the deposition in response to the question

“when was George Neal your supervisor?” Rodgers answered: “Now, I don’t want to

give you - - I don’t know what date that he - - because we lost Mr. Neal - - he’s no longer

with us, and Mr. Neal - - okay - - I got assaulted - - so I’m thinking - - now this is just a

random thinking because I can’t really give you a specific date of his - - it changing over

from - - Mr. Smith kind of took over - - I’m thinking that Mr. Smith took over in 2010 - - 

2010 - - ‘10 or ‘11 - - no. I know he was here in ‘11, so it had to be 2009 or 2010 - - in

one of those, I think, Mr. Smith took over.” [Id. at 21-22.] 

 In addition to Rodgers’ deposition testimony, on February 22, 2012, her workers’

compensation treatment provider, Mirro, stated that “Ms. Rodgers has been experiencing Post

Traumatic Stress Symptoms since the incident.” [DE 32-1.] Finally, in a letter dated May 7,

2012, Mirro stated she “concurred with the diagnosis that was made from the EAP counseling

service, Post Traumatic Stress Disorder (PTSD).” [DE 32-2.] 

Viewing the facts relevant to Rodgers’ condition in the light most favorable to her, and

assessing those facts under the new, less stringent analysis called for by the ADA amendments,

there is sufficient evidence to permit a reasonable jury to find that Rodgers has a disability under

the ADA. This conclusion is supported by the regulation providing post-traumatic stress

13
disorder should virtually always be found to impose a substantial limitation on a major life

activity, the Mirro letters, Rodgers’ deposition testimony, as well as the fact that “[t]he primary

object of attention in cases brought under the ADA should be whether covered entities have

complied with their obligations and whether discrimination has occurred, not whether an

individual’s impairment substantially limits a major life activity.” 29 C.F.R. § 1630.2(j)(1)(iii). 

Rodgers must also establish that she is a “qualified individual” under the ADA, which is

defined as an individual with a disability “who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such individual holds or

desires.” 42 U.S.C. § 12111(8). GCSC largely argues that Rodgers was not a qualified

individual with a disability because “she is capable of performing, and does perform, her job as a

janitor.” [DE 30 at 12.] This argument, while directed more towards whether Rodgers is

disabled, basically concedes that Rodgers can perform the essential functions of her position,

with or without a reasonable accommodation. 

The ADA requires an employer to engage in an interactive process with a qualified

individual to determine whether a reasonable accommodation will allow her to work. Beck v.

University of Wisconsin Bd. Of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). If a reasonable

accommodation is available, an employer who does not provide it to an employee with a

disability violates the ADA unless it can demonstrate that the accommodation would impose an

undue hardship on its business operations. Id. at 1134. Additionally, “[b]y the statutory

language, ‘reasonable accommodation’ is limited by the employer’s knowledge of the

disability.” Beck, 75 F.3d at 1135 (citing Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928 (7th Cir.

14
1995)). “An employee has the initial duty to inform the employer of a disability before ADA

liability may be triggered for failure to provide accommodations.” Beck, 75 F.3d at 1134. In its

reply memorandum, GCSC argues that nowhere in Plaintiff’s EEOC charge of discrimination

does Rodgers indicate there were medical doctors or psychiatrists who demanded any type of

accommodations for Rodgers, and that Rodgers indicated on the charge that the latest date of

discrimination was April 25, 2012. [DE 38 at 5-7.] However, Rodgers indicated that there was

“continuing action” on the charge of discrimination [DE 30-1], and as noted earlier in this

decision, courts apply a liberal reading to EEOC charges. See, e.g., Rosesel, 596 F.2d at 187. 

Additionally, Plaintiff states in her uncontested facts section that her doctor, Mirro, wrote out the

requested accommodations, and “submitted those to, you know, my building people.” [Rodgers

Dep. at 79.] While GCSC faults the Mirro letters for not being addressed to anyone specific,

GCSC has not pointed to any evidence in the record that contradicts Rodgers’ assertion that the

Mirro letter with the requested accommodations was submitted to someone at GCSC. GCSC

also contends that because Dr. Kovacich signed a work release for Rodgers dated April 16, 2012,

GCSC did not know Rodgers needed any accommodations. [DE 38 at 6-7.] But just because a

doctor releases a patient to work does not mean that employee cannot still have a disability that

requires accommodation. Upon balance, there is a disputed question of fact as to whether GCSC

knew of Rodgers’ disability.

Similarly, there is also a genuine dispute as to whether GCSC was involved in an

interactive process with Rodgers, and whether it provided Rodgers with reasonable

accommodations. The federal regulations implementing the ADA state: “[t]o determine the

appropriate reasonable accommodation it may be necessary for the covered entity to initiate an

15
informal, interactive process with the individual with a disability in need of the

accommodation.” 29 C.F.R. § 1630.2(o)(3). Yet, this is a two-way street, and the regulations

state the “appropriate reasonable accommodation is best determined through a flexible,

interactive process that involves both the employer and the [employee] with a disability.” 29

C.F.R. pt. 1630, app. As the Seventh Circuit described in Beck, “[n]o hard and fast rule will

suffice because neither party should be able to cause a breakdown in the process for the purpose

of either avoiding or inflicting liability. Rather, courts should look for signs of failure to

participate in good faith or failure by one of the parties to make reasonable efforts to help the

other party determine what specific accommodations are necessary.” Beck, 75 F.3d at 1135. In

this case, Rodgers testified that no one from GCSC ever sat down with her and discussed the

recommendations of Mirro dated February 20, 2012. [Id. at 174-75.] Yet, GCSC claims that

Plaintiff had a procedure to follow, but did not file any grievances with GCSC. [DE 38 at 7-8.] 

Moreover, Rodgers testified that the requested accommodations (better lighting, no employee

should ever be left alone in the building, the custodial staff should work as a team, and no person

should ever take out the garbage by themselves), were not consistently implemented. [Rodgers

Dep. at 176-79.] In response, GCSC claims most of the issues were resolved due to the practice

of the employees, and lights were replaced. [DE 38 at 7-8.] The Court finds too many disputed

issues of material fact exist, rendering summary judgment inappropriate on the ADA reasonable

accommodation claim in Count I.

To the extent Count I also attempts to state a claim for discrimination or harassment

under the ADA [Compl. ¶ 17], GCSC argues in its memorandum in support of summary

judgment that Rodgers could not establish a prima facie case of discrimination, she did not

16
receive any adverse employment actions, and she has no evidence demonstrating GCSC’s

legitimate nondiscriminatory reasons for its actions were pretextual. [DE 30 at 15-16.] Rodgers

fails to address these arguments in her response brief, and fails to present any evidence to the

Court that she was the subject of any type of harassment. Indeed, Rodgers seems to concede she

has given up any claim for harassment or discrimination under the ADA, as she states that

“Defendant’s failure to make reasonable accommodations is sufficient to establish liability on

the part of Defendant, even in the absence of an adverse employment action.” [DE 31 at 15.] 

Because Rodgers has not advanced any argument in support of the allegation in Count I of the

complaint that she suffered harassment or discrimination in violation of the ADA, it is therefore

deemed waived. See Palmer v. Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003) (“because

[plaintiff] 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”);

Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that

arguments not presented to the district court in response to summary judgment motions are

deemed waived).

2. Title VII Claim

Rodgers also claims that GCSC violated Title VII’s anti-retaliation provisions. Title VII

provides that an employer may not “discharge any individual . . . because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To prevail on a Title

VII retaliation claim, Rodgers must prove that: (1) she engaged in activity protected under Title

VII; (2) she suffered an adverse employment action; and (3) there is a causal nexus between her

protected action and the adverse employment action. Smart v. Ball State Univ., 89 F.3d 437, 440

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(7th Cir. 1996) (quotation omitted); see also McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473,

483 (7th Cir. 1996). A plaintiff can prove the “causal link” by demonstrating that her employer

would not have acted adversely “but for” the protected expression. McKenzie, 92 F.3d at 483

(quoting Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir. 1985)). 

Rodgers clearly satisfies the first element because filing an EEOC complaint is protected

activity. She does not, however, satisfy the second step that she has suffered an adverse

employment action. To the extent Rodgers contends that GCSC retaliated against her by

denying her requests for accommodation, this is “insufficient to serve as a stand-alone retaliation

claim because these allegations merely restate Count I.” Pack v. Illinois Dep’t of Healthcare

and Family Serv., No. 13-cv-8930, 2014 WL 3704917, at *4 (N.D. Ill. July 25, 2014). 

In Rodgers’ complaint, she alleges she was “denied a promotion or hiring to which she

would have been entitled.” [Compl. ¶ 18.] GCSC argues that it took no adverse job action

against Rodgers, and that it was entitled to summary judgment on this count. [DE 30 at 14-15.] 

Rodgers does not advance any argument in her response in opposition to the motion for summary

judgment; therefore, this claim is also deemed abandoned and waived. See Palmer, 327 F.3d at

597-98; Caruso, 197 F.3d at 1197.

Even assuming, arguendo, she did not waive the argument, it would still fail because

Rodgers has produced no evidence of an adverse employment action - she has failed to give the

Court any particular details or facts about when or how she was allegedly denied a promotion to

which she was entitled. Moreover, “[n]ot everything that makes an employee unhappy is an

actionable adverse action. Negative performance reviews, a change in job title, an increased

travel distance to work, do not by themselves qualify. . . . To be actionable, there must be a

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‘significant change in employment status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant change in

benefits.’” Stutler v. Illinois Dept. Of Corrections, 263 F.3d 698, 703 (7th Cir. 2001) (quoting

Bell v. Envtl. Prot. Agency, 232 F.3d 546, 555 (7th Cir. 2000)). Rodgers has not provided any

evidence that she suffered an actionable, adverse employment action. Therefore, summary

judgment is warranted on Count II.

3. Intentional Infliction of Emotional Distress

Rodgers also states a count for intentional infliction of emotional distress (Count III). As

with Count II, Plaintiff completely fails to address GCSC’s argument that summary judgment is

appropriate on this count. Therefore, the claim for intentional infliction of emotional distress is

waived. See Palmer, 327 F.3d at 597-98; Caruso, 197 F.3d at 1197.

Even if Rodgers had not waived this claim, it would still fail. Count III alleges that

GCSC “intentionally, recklessly and/or negligently inflicted severe and prolonged emotional

distress upon Rodgers by and through its harassment and discrimination of Rodgers through the

term and duration of Rodgers’ employment with GCSC.” [Compl. at 8.] The ITCA provides

that a claim against a political subdivision is barred unless the prescribed notice is filed within

180 days after the loss occurs. Ind. Code 34-13-3-8; see also Davidson v. Perron, 716 N.E.2d

29, 33-34 (Ind. Ct. App. 1999). Specifically, notice must be filed: (1) with the governing body

of that political subdivision; and (2) the Indiana Political Subdivision Risk Management

Commission. Ind. Code 34-13-3-8. “The notice requirements of the ITCA apply not only to

suits against political subdivisions but also to suits against employees of political subdivisions.” 

Davidson, 716 N.E.2d at 33-34 (citing VanValkenburg v. Warner, 602 N.E.2d 1046, 1048 (Ind.

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Ct. App. 1992)). The claimant bears the burden of establishing substantial compliance with the

notice provisions and it is a question of law. Chang v. Purdue Univ., 985 N.E.2d 35, 52 (Ind. Ct.

App. 2013). In this case, Rodgers has not responded to GCSC’s argument that she did not file

the required notice. As such, Rodgers has failed to carry her burden of establishing compliance

with the ITCA notice requirements, and summary judgment is proper on this claim. 

Conclusion

For the reasons set forth above, the Motion for Summary Judgment [DE 29] is

GRANTED IN PART AND DENIED IN PART. The Motion for Summary Judgment is

GRANTED as to Counts II and III and the Clerk is ORDERED to DISMISS WITH

PREJUDICE Counts II and III of Plaintiff’s complaint. The Motion for Summary Judgment is

DENIED as to the reasonable accommodation claim under the ADA in Count I, which remains

pending. The Objection and Motion to Strike [DE 37] is DENIED. 

SO ORDERED.

ENTERED: March 1, 2016

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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