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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

LINDA J. DAVIS 

 Plaintiff, 

 vs. 

MUNSTER MEDICAL RESEARCH 

FOUNDATION, INC. d/b/a 

COMMUNITY HOSPITAL. 

 Defendant. 

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NO. 2:14–CV-220 

 

OPINION AND ORDER

 This matter is before the Court on the “Defendant’s Motion 

for Summary Judgment,” filed by Defendant Munster Medical Research 

Foundation d/b/a Community Hospital (“Hospital”) on February 19, 

2016 (DE #67), “Defendant’s Motion to Strike Portions of 

Plaintiff’s Evidence, Statement of Genuine Disputes and 

Plaintiff’s Affidavit from Plaintiff’s Response to Defendant’s 

Motion for Summary Judgment,” filed on August 19, 2016 (DE #91), 

“Defendant’s Motion to Strike Portions of Plaintiff’s Evidence 

based upon Failure to Disclose during Discovery,” filed on August 

19, 2016 (DE #93), and “Stipulated Motion to Apply the Legal 

Standards Set Forth in Ortiz vs. Werner to the Parties’ Pending 

Summary Judgment Pleadings and Evidence,” filed by both parties on 

September 14, 2016 (DE #98). For the reasons set forth below, 

Defendant’s Motion for Summary Judgment (DE #67) is GRANTED IN 

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PART and DENIED IN PART, Defendant’s Motion to Strike (DE #91) is 

DENIED, Defendant’s Motion to Strike (DE #93) is GRANTED IN PART 

and DENIED IN PART, and the “Stipulated Motion to Apply the Legal 

Standards Set Forth in Ortiz vs. Werner to the Parties’ Pending 

Summary Judgment Pleadings and Evidence” (DE #98) is GRANTED. 

Count II of the First Amended Complaint is hereby DISMISSED. 

BACKGROUND 

Plaintiff Linda J. Davis (“Davis”) had been employed by the 

Hospital as a security officer for more than a decade when she 

took FMLA leave for knee surgery in 2013. When she returned to 

work, she was informed that her usual position in the Hospital had 

been assigned to another security officer. The Hospital allegedly 

assigned her to a different position that required more walking, 

as well as pushing and lifting. The increased walking allegedly 

caused Davis’s knee to swell. Davis requested to be returned to 

her pre-FMLA leave position, which the Hospital denied. 

Davis filed this action against the Hospital, asserting that 

the Hospital violated the Family Medical Leave Act (“FMLA”), 29 

U.S.C. § 2601 et seq., and the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. § 12101 et seq. Her First Amended Complaint 

(“Complaint”) alleges three causes of action: Count I - FMLA 

interference and retaliation; Count II - ADA failure to 

accommodate; and Count III - ADA retaliation. (DE #36.) The 

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Hospital denies that it violated the FMLA or the ADA. The Hospital 

filed the instant motion for summary judgment and two motions to 

strike portions of the evidence Davis submitted in response to the 

Hospital’s summary judgment motion. The motions have been fully 

briefed and are ripe for adjudication. The parties also jointly 

filed the “Stipulated Motion to Apply the Legal Standards Set Forth 

in Ortiz vs. Werner to the Parties’ Pending Summary Judgment 

Pleadings and Evidence,” which the Court will address below. 

DISCUSSION 

Motions to Strike 

The Hospital’s first motion to strike urges the Court to 

strike portions of Davis’s evidence based on her alleged failure 

to disclose them during discovery. (DE #93.) The Hospital had 

propounded an interrogatory to Davis seeking information regarding 

“every unfavorable or adverse employment action which affected the 

terms or conditions of [her] employment that [she] suffered or 

experienced due to [the Hospital’s] action or conduct.” (DE #94-

1 at 7.) Davis answered this interrogatory by identifying five 

allegedly adverse employment actions. (Id. at 8-9.) She confirmed 

that her answer to this interrogatory was complete during her 

deposition, and never supplemented this interrogatory answer. The 

Hospital contends that Davis’s response brief to its motion for 

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summary judgment raises new issues and evidence not previously 

disclosed by Davis. 

Federal Rule of Civil Procedure 26(e) provides that a party 

who has responded to an interrogatory must supplement or correct 

its response “in a timely manner if the party learns that in some 

material respect the . . . response is incomplete or incorrect, 

and if the additional or corrective information has not otherwise 

been made known to the other parties during the discovery process 

or in writing.” Fed. R. Civ. P. 26(e)(1)(A). If a party fails to 

provide information as required by Rule 26(e), “the party is not 

allowed to use that information . . . to supply evidence on a 

motion, . . . unless the failure was substantially justified or is 

harmless.” Fed R. Civ. P. 37(c)(1). “The exclusion of nondisclosed evidence is automatic and mandatory under Rule 37(c)(1) 

unless non-disclosure was justified or harmless.” Musser v. 

Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004) (citation 

omitted). The Court considers the following factors to determine 

whether the failure was substantially justified or harmless: “(1) 

the prejudice or surprise to the party against whom the evidence 

is offered; (2) the ability of the party to cure the prejudice; 

(3) the likelihood of disruption to the trial; and (4) the bad 

faith or willfulness involved in not disclosing the evidence at an 

earlier date.” Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th 

Cir. 2005) (citation omitted). Here, there is no indication that 

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Davis acted willfully or in bad faith, and this litigation is not 

at the trial stage.1 Thus, the Court’s inquiry focuses on the 

prejudice to the Hospital. 

The Hospital argues that it relied upon Davis’s interrogatory 

answer in preparing its summary judgment motion, and thus, is 

unduly prejudiced by the following evidence Davis disclosed in her 

response to that motion: 

1. Davis’s receipt of attendance points for absenteeism, 

and statements made by the Director of the Security 

Department, David Heard (“Heard”), regarding same. 

2. Davis was allegedly told to hand over her computer pass 

code to a co-worker, then was nearly written up for 

handing over her pass code. 

3. Heard’s alleged admonishment to the Security Department 

and Davis that they are not to go to Human Resources for 

problems, and that Davis was almost written up for 

standing down on a call. 

4. Heard allegedly prevented Davis from seeing her 

personnel file and his alleged comments regarding same. 

5. Davis’s allegations of being under “increased scrutiny” 

and being “disciplined for things she had been allowed 

to do,” aside from the adverse employment actions that 

she disclosed prior to the close of discovery. 

Davis does not deny that she failed to supplement her interrogatory 

answer or disclose these actions during her deposition. However, 

                                                            

1

In its reply brief, the Hospital asserts that Davis acted willfully or in bad 

faith because she claims to be justified in not disclosing evidence that she 

did not know was material until her current counsel prepared her response to 

the Hospital’s summary judgment motion. The Court does not agree that this 

demonstrates bad faith or willfulness because Davis was represented by different 

counsel during discovery. Davis’s prior counsel withdrew his appearance after 

discovery closed. (DE #62.) Davis’s current counsel filed her appearance two 

months after the Hospital filed its motion for summary judgment, and 

subsequently filed Davis’s response to that motion. (DE ##70, 81.)

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the first of these actions was disclosed to the Hospital prior to 

the close of discovery. The Hospital’s Statement of Material Facts 

in support of its motion for summary judgment acknowledges that 

Davis identified her February 17, 2014, Problem Solving Request 

Form “addressing the assessment of two attendance points for 

calling off of work” as a report, complaint or communication she 

made to the Hospital regarding occurrences of discrimination, 

retaliation or unlawful conduct. (DE #69-1 at 4 (citing DE #69-4 

at 6-7 (Davis’s interrog. answer no. 7).) Because Davis disclosed 

this action prior to the close of discovery, the Court DENIES the 

Hospital’s motion to strike it. 

As to the four other actions, Davis attempts to justify their 

late disclosure by asserting that she first learned that these 

actions were material when she went through the summary judgment 

process with her current counsel. She insists that her failure to 

remember to disclose these actions during her deposition 

demonstrates that she is not an attorney and is not familiar with 

what constitutes an adverse employment action under Federal law. 

However, “[a] misunderstanding of the law does not equate to a 

substantial justification for failing to comply with the 

disclosure deadline.” Musser, 356 F.3d at 758. Davis argues that 

the Hospital is not prejudiced because it still employs nearly all 

of the individuals identified in the Davis Affidavit and has full 

access to people who can corroborate or deny her allegations. She 

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suggests that the Hospital may ask her at trial about how she 

learned of the materiality of the newly disclosed actions, i.e., 

when her new counsel was preparing her response to its summary 

judgment motion. 

“Motions to strike are heavily disfavored, and usually only 

granted in circumstances where the contested evidence causes 

prejudice to the moving party.” The Cincinnati Ins. Co. v. Lennox 

Industs., Inc., No. 3:14-CV-1731, 2016 WL 495600, at *4 (N.D. Ind. 

Feb. 9, 2016) (citing Kuntzman v. Wal-Mart, 673 F. Supp. 2d 690, 

695 (N.D. Ind. 2009), and Gaskin v. Sharp Elec. Corp., No. 2:05-

CV-303, 2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007)). The 

Court agrees that the Hospital would be unduly prejudiced by 

allowing Davis to rely on adverse employment actions first 

disclosed in response to the Hospital’s summary judgment motion. 

Davis’s late disclosure prevented the Hospital from having a full 

and fair opportunity to investigate or seek additional discovery 

relative to these actions. Even if Davis did not learn of the 

materiality of these alleged adverse employment actions until 

reaching the summary judgment stage of litigation, she unduly 

surprised the Hospital by simply presenting evidence of these 

actions along with her opposition to summary judgment. Davis’s 

suggestion of allowing the Hospital to question Davis at trial 

about when she learned of the materiality of these events does 

nothing to cure the prejudice caused by the late disclosure. The 

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Court therefore GRANTS the Hospital’s motion to strike references 

to the four alleged adverse employment actions because they were 

not disclosed during discovery. 

The Hospital also maintains that it was prejudiced by the 

following allegations: 

1. Davis allegedly was not reinstated to her post-FMLA 

leave position or an equivalent position upon her return 

from leave in February 2013. 

2. The Hospital allegedly failed to make a reasonable 

accommodation as to Davis’s purported disability. 

3. The Hospital allegedly failed to engage in an 

interactive process with Davis to determine 

accommodations. 

As noted above, Rule 26(e) is violated where the information “has 

not otherwise been made known to the other parties during the 

discovery process or in writing.” These first two allegations 

form the basis of Davis’s FMLA and ADA claims against the Hospital. 

The Complaint asserts that (1) the Hospital assigned Davis to a 

different position after her FMLA leave for knee surgery, (2) her 

new position required walking, pushing, and lifting, which caused 

her knee to swell, and (3) the Hospital denied her request for 

reassignment. (See DE #36 (Compl. ¶¶ 7, 10-14, 19, 27).) In its 

summary judgment briefing, the Hospital proffers evidence 

explaining the positions assigned to Davis and reasons therefore 

(see, e.g., DE #69-1 at 81-82, 87-89), as well as evidence of the 

Hospital’s efforts to reasonably accommodate Davis (see, e.g., id. 

at 88 (Heard Aff. ¶67)). Thus, the Hospital was aware of these 

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allegations before the close of discovery. The third allegation 

is an element of proof of Davis’s failure to accommodate claim. 

See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 

2005) (“the ADA requires that employer and employee engage in an 

interactive process to determine a reasonable accommodation”). 

The Hospital should not be surprised that Davis made these three 

allegations in response to its motion for summary judgment. And 

while Davis has made these allegations, she must support them with 

evidence in order to survive summary judgment. See Gekas v. 

Vasiliades, 814 F.3d 890, 896 (7th Cir. 2016) (“summary judgment 

is the ‘put up or shut up’ moment in a lawsuit, when a party must 

show what evidence it has that would convince a trier of fact to 

accept its version of events”). The Court finds that the Hospital 

was not unduly prejudiced by these three allegations, and 

therefore, DENIES the motion to strike them from Davis’s response 

brief. 

The Hospital’s second motion seeks to strike portions of the 

Affidavit of Linda J. Davis (“Davis Affidavit”) (DE #81-3), 

portions of Davis’s Statement of Genuine Disputes (DE #81-2), and 

three exhibits to Davis’s Statement of Genuine Disputes. (DE #91.) 

The Court will address the exhibits at issue first. 

The Hospital moves to strike Davis’s Exhibits 3, 5 and 7. 

(DE #81-4, DE #81-6, DE #81-8.) Each of these exhibits is a 

“Memorandum to File” purportedly prepared by EEOC Investigator 

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J.R. Andrews in connection with an onsite visit to the Hospital on 

March 19, 2014. Exhibit 4 describes Andrews’s interview of Michael 

Graham (“Graham”), the Hospital’s former Human Resources Director. 

Exhibit 5 describes Andrews’s interview of Dave Slacian, the 

Hospital’s Security Supervisor. Exhibit 7 describes Andrews’s 

interview of Heard, the Hospital’s Director of Security. None of 

the memoranda are signed or verified by Andrews. 

“A party may object that the material 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). Thus, the 

Rules “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). The Hospital relies upon Stolarczyk 

ex rel. Estate of Stolarczyk v. Senator International Freight 

Forwarding, LLC, 376 F. Supp. 2d 834 (N.D. Ill. 2005), in which 

the court held that an “EEOC charge and notes of the interview 

with [an interviewee] constitute inadmissible hearsay that is not 

properly considered in the summary judgment analysis, given the 

fact that [interviewee] would be unavailable as a witness at trial 

and was never deposed in this case.” Id. at 838 (emphasis added). 

In that case, the interviewee had died before providing sworn 

testimony in a deposition or at trial. Here, in contrast, there 

is no indication that Andrews, Graham, Slacian, or Heard will be 

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unavailable as witnesses at trial. Indeed, the Hospital proffers 

affidavits from Graham, Slacian, and Heard in support of its motion 

for summary judgment. (See DE #69-1 at 42-54, 61-65, 77-94.) As 

such, the facts set forth in Exhibits 3, 5, and 7 could later be 

presented in an admissible form. Therefore, the motion to strike 

Davis’s exhibits is DENIED. 

The Hospital argues that portions of the Davis Affidavit and 

Statement of Genuine Disputes contain hearsay, are not based on 

personal knowledge, and are speculative. Davis responds that the 

Hospital has failed to analyze whether any of the statements were 

offered “to prove the truth of the matter asserted,” as required 

to exclude them as hearsay. Fed. R. Evid. 801(c)(2). Regarding 

her alleged lack of personal knowledge, Davis argues that the 

statements at issue can be presented in an admissible form at 

trial, as allowed by Rule 56(c)(2), through the live testimony of 

Davis and other individuals identified in the Davis Affidavit. 

The Hospital disputes Davis’s arguments. 

The Court has reviewed the Davis Affidavit and Statement of 

Genuine Disputes in their entirety. It is the function of the 

Court, with or without a motion to strike, to carefully review the 

evidence and to eliminate from consideration any argument, 

conclusions, and assertions unsupported by the documented evidence 

of record offered in support of the statement. Wajvoda v. Menard, 

Inc., No. 2:11–CV–393, 2015 WL 5773648, at *3 (N.D. Ind. Sept. 30, 

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2015); see, e.g., S.E.C. v. KPMG LLP, 412 F. Supp. 2d 349, 392 

(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co., 

Inc., No. 04 C 5167, 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10, 

2006). When ruling on the motion for summary judgment, the Court 

is capable of sifting through the evidence and considering it under 

the applicable federal rules and case law, giving each statement 

the credit to which it is due. Therefore, the Hospital’s motion 

to strike portions of the Davis Affidavit and Statement of Genuine 

Disputes is DENIED as unnecessary. 

Stipulated Motion 

In connection with Davis’s FMLA retaliation claim, Davis 

initially argued that a “convincing mosaic of circumstantial 

evidence” would permit a reasonable trier of fact to infer 

retaliation by the Hospital. (DE #81 at 8-9.) After the parties 

had fully briefed the Hospital’s motion for summary judgment, the 

Seventh Circuit held that “‘convincing mosaic’ is not a legal test” 

in an employment discrimination claim. Ortiz v. Werner Enters., 

Inc., No. 15-2574, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016). 

Rather, the legal standard to be applied “is simply whether the 

evidence would permit a reasonable factfinder to conclude that the 

plaintiff’s race . . . or other proscribed factor caused the 

discharge or other adverse employment action. Evidence must be 

considered as a whole.” Id. at *4. 

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On September 14, 2016, the Hospital and Davis jointly 

submitted a “stipulated motion” asking the Court to apply the legal 

standards set forth in Ortiz to the parties’ pending summary 

judgment pleadings and evidence. (DE #98.) The parties 

“stipulate[d] that the legal authority and standards set forth in 

Ortiz shall apply to the within filed Summary Judgment pleadings 

as if set forth therein and same shall be incorporated into and 

made a part of the parties’ Summary Judgment pleadings by reference 

pursuant to this Stipulated Motion.” (Id. ¶8.) The parties also 

agreed that their summary judgment pleadings “shall not be modified 

except to the extent of the court’s application of law and legal 

standards set forth in the Ortiz decision.” (Id. ¶9.) This motion 

makes no effort to apply the facts of this case to the legal 

standard set forth in Ortiz. The Court has reviewed the parties’ 

summary judgment pleadings and evidence, and accepts their 

stipulations. The parties’ Stipulated Motion (DE #98) is GRANTED. 

The Court will disregard the parties’ references to the “convincing 

mosaic” theory, and instead, will apply the legal standards set 

forth in Ortiz, as incorporated by stipulation into the parties’ 

summary judgment briefs. 

Motion for Summary Judgment 

Summary judgment must be granted when “there is no genuine 

dispute as to any material fact and the movant is entitled to 

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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, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (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. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the nonmoving party and draw all reasonable inferences 

in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 

(7th Cir. 2010). 

A party opposing a properly supported summary judgment motion 

may not rely on allegations 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). “[I]nferences relying on mere 

speculation or conjecture will not suffice.” Stephens v. Erickson, 

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the 

nonmoving party fails to establish the existence of an essential 

element on which he bears the burden of proof at trial, summary 

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th 

Cir. 2006). The Court “‘appl[ies] the summary judgment standard 

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with special scrutiny to employment discrimination cases, which 

often turn on issues of intent and credibility.’” Bob–Maunuel v. 

Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 873 (N.D. Ill. 

2014) (quoting Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 

875 (7th Cir. 2002)). 

Facts 

 In 2004, Davis was hired as a Security Officer (“Officer”) by 

the Hospital, an acute care hospital facility in Munster, Indiana. 

Davis’s job as an Officer included several job functions: (1) 

providing a proactive visible deterrent to crime and to respond to 

disturbances and take appropriate action; (2) apprehending violent 

offenders and assisting staff with restraining patients; (3) 

walking patrols of the interior and exterior of the Hospital; (4) 

assisting in evacuating, lifting, and moving patients; and (5) 

responding to violent situations. 

Officers are assigned to specific positions at the Hospital, 

each of which is designated a number. Before 2013, Davis worked 

mostly – but not exclusively - in position 15, which is a “seated 

position” located in the Hospital. Position 15 requires an Officer 

to sit for half of the time and walk for half the time around the 

area and into the adjacent parking building. Other seated 

positions include positions 5, 6 and 7, which are located in the 

Hospital and require an Officer to sit for approximately twoUSDC IN/ND case 2:14-cv-00220-RL document 103 filed 09/30/16 page 15 of 46
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thirds of the time, and walk around the area for one-third of the 

time. Positions 8 and B2 are “relief positions” whereby the 

Officer walks through the Hospital inspecting various areas and 

also relieves other Officers while they are on break. Position 8 

requires transporting bodies to the morgue, and can involve 

exposing Officers to combative patients and guests. The Command 

Center position consists of sitting in a room watching security 

camera feeds and answering the Security Department telephone. 

Davis attests that Officers generally worked at the same 

positions the majority of the time. In addition to her own 

experience, Davis identifies Officers who worked in particular 

positions for time spans ranging from two to twelve years. (DE 

#81-3 at ¶34.) The Hospital maintains that no specific position 

is guaranteed to an Officer and that scheduling is based upon the 

needs of the Security Department. 

Davis’s Medical Issues and 2013 FMLA Leave 

Beginning in 2008, Davis developed problems in her knees. 

She was diagnosed with medial meniscus tears and patella femoral 

articular damage. She developed a limp, had problems with 

swelling, stiffness, and getting out of chairs, and was in pain. 

Davis had arthroscopic surgery on her knees in 2008, but the 

surgery did not help her pain. Davis requested several FMLA leaves 

of absence over time, all of which were granted by the Hospital. 

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At issue in this case is Davis’s FMLA leave from January 10, 

2013, to February 27, 2013, during which she had a second 

arthroscopic surgery on her knee (“2013 FMLA leave”). Davis 

expected to be assigned to position 15 when she returned from her 

2013 FMLA leave, as she had after other FMLA leaves. However, the 

Hospital had assigned position 15 to another Officer. Director of 

Security Heard attests that he assigned Officer Major Higgins to 

position 15 due to his age (78 years), diminished eyesight for 

driving, and his desire to be indoors during the winter. (DE #69-

1 at 91-92.) Officer Higgins had previously been assigned to 

driving security vehicles. Heard attests that he believed that 

position 15 would be better for Officer Higgins, without any intent 

of harming Davis. (Id.) 

Upon returning to work in February 2013, Davis provided a 

note from her doctor stating that she was “[s]ufficiently recovered 

to resume a normal workload” on February 27, 2013. (DE #69-4 at 

47.) Davis also submitted a fitness for duty certificate dated 

February 27, 2013, indicating that she was “able to perform all 

the functions of his/her job.” (Id. at 49.) Davis testified that 

before her doctor released her to return to work, he asked her 

about her job and what she was doing in that position. (DE #69-3 

at 39-40.) 

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Davis’s Work Schedule After 2013 FMLA Leave 

When Davis returned to work after her 2013 FMLA leave, the 

Hospital assigned Davis to relief positions 8 and B2 for her first 

two days at work. Davis worked in those positions, though her 

knee started swelling due to the walking required in position 8. 

Working in position B2 caused Davis no concern, or pain or problem 

with her knees. (DE #69-3 at 196-97.) Davis repeatedly complained 

to Heard about her swollen knee and asked him if she could be 

reassigned to position 15. Davis attests that Heard told her that 

she could not work if she had any restrictions. (DE #81-3 at ¶15.) 

She attests that on the second or third day after she returned 

from FMLA leave, Heard suggested that she be assigned to the 

Command Center position, and she agreed, but the position never 

materialized. (Id. at ¶13.) Davis was assigned to a seated 

position for the first week of March 2013. On March 6, 2013, Davis 

participated in an accommodation conference with Heard and Human 

Resources Director Graham. At that meeting, Davis confirmed that 

she was able to work without restrictions and could perform her 

essential job functions. Davis requested reassignment to position 

15 or another position that would not aggravate her still-healing 

knee. 

After the March 6 accommodation meeting, Davis was assigned 

to seated positions in March and April. (DE #81-5 at 4-5.) In 

April 2013, Davis applied for and was granted intermittent FMLA 

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leave. Davis was assigned to seated positions for most of May 

2013, with the exception of four days at relief position B2. (Id. 

at 6.) As before, working in position B2 caused Davis no concern, 

pain or problem with her knees. (DE #69-3 at 197.) In June 2013, 

she was assigned to seated positions, with the exception of one 

day at relief position B2. (DE #81-5 at 7.) 

In July 2013, Davis was assigned to seated positions, with 

the exception of one day at relief position 8 on July 11, 2013. 

(Id. at 9.) Davis testified that working in position 8 on that 

day was “not as bad,” because she was able go to a post and relieve 

someone at that post. (DE #69-3 at 198.) Davis provided the 

Hospital with a physician’s note dated July 24, 2013, stating that 

Davis “needs [a] table to keep her limited, to keep her feet on 

the floor.” (DE #69-5 at 3.) The note did not indicate that she 

had a walking restriction, and Davis never submitted a physician’s 

note indicating that she needed to elevate her leg. (DE #69-3 at 

192.) A fitness for duty certificate dated July 25, 2013, limited 

Davis’s walking, bending and reaching to less than one hour, and 

stated that she must “keep feet flat on the floor while sitting 

down with adequate room for knees while bending.” (DE #81-10.) 

The Hospital held an accommodation meeting on July 25, 2013, at 

which Davis requested a desk and chair at her seated positions. 

The Hospital agreed and replaced the stools and podiums at 

positions 5 and 6 with chairs and desks. After the accommodation 

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meeting, Davis was not assigned to positions 5 and 6 until the 

chairs and desks were in place. Positions 7 and 15 always had 

chairs and desks. In 2013, Davis worked 196 shifts in seated 

positions, three shifts in position 8, and six shifts in position 

B2. 

In 2014, Davis worked 137 shifts in seated positions and 19 

shifts in position 8. Davis requested and received FMLA leave in 

August 2014, during which she underwent knee replacement surgery. 

In anticipation of Davis’s return to work, the Hospital held 

another accommodation conference on January 9, 2015. Davis 

provided the Hospital with a doctor’s note indicating that she was 

able to return to work on January 12, 2015, with “no crawling, no 

climbing, no lifting [over] 50 [pounds], limited walking per 

[patient] tolerance.” (DE #69-5 at 6.) The Hospital agreed that 

Davis could avoid assignment to relief positions, would be assigned 

to seated positions, and would not need to respond to altercations, 

walk for more than a half-hour, crawl, climb, or lift heavy 

objects. (DE #69-1 at 38-39.) When Davis returned to work, she 

was assigned to relief position 8, but was told she could work at 

a seated position. She worked in position 8 for part of the day, 

then switched to a seated position. In 2015, Davis worked 187 

shifts in seated positions and one shift in position 8. 

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Corrective Actions, EEOC Charge, and Problem Solving Requests 

Prior to her 2013 FMLA leave, Davis had never received a 

Corrective Action. On March 18, 2013, Davis received her first 

Corrective Action for secretly recording her March 6, 2013 

accommodation meeting with Heard and Graham (“March 2013 

Corrective Action”). Davis secretly recorded this meeting because 

she wanted to record Heard saying that he would not let her work 

if she had restrictions. (DE #81-3 at ¶17.) Davis admits that 

she secretly recorded this meeting, and that she later lied by 

telling Graham that she had not recorded the meeting. The 

Hospital’s Corrective Action Policy states that falsifying any 

verbal or written statement and recording conversations without 

supervisory approval and the prior approval of conversation 

participants are offenses requiring corrective action. Davis 

attests that Graham told her that he had no problems with her 

recording the meeting, but that he probably would have to issue a 

Corrective Action because Heard was upset about it. (Id. at ¶20.) 

This Corrective Action did not result in a suspension for Davis. 

On June 21, 2013, Davis received her second Corrective Action 

for leaving her post for eight minutes and using a personal laptop 

computer (“June 2013 Corrective Action”). On June 18, 2013, the 

Command Center received an anonymous call that no Officer was on 

duty at position 7. The Hospital’s surveillance camera recorded 

Davis using her laptop computer in a visitor area 15 feet away 

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from her post for 43 minutes. When Davis asked another Officer on 

duty to leave position 7, the post was left unoccupied for eight 

minutes. Hospital policy provided that outside laptop computers 

are not allowed on Hospital property, and disciplinary actions 

would be given to Officers who use outside laptops during their 

work shift. Davis received a three-day suspension for violating 

the Hospital’s policy on electronic devices and failing to be at 

her post for eight minutes. 

Davis testified that she had understood that Officers could 

use laptop computers during lunch and breaks. (DE #69-3 at 119-

20.) Davis attests that she regularly saw other Officers use their 

laptops and other electronic devices at work, which caused her to 

believe that using a laptop at work was not against the rules. 

(DE #81-3 at ¶29.) She allegedly witnessed Officer Charlie Walker 

using a portable DVD player to watch movies at his post in 2011 

and 2012, and recalls seeing Heard speaking with Officer Walker at 

this post while a movie was playing. Davis attests that soon after 

she returned from her 2013 FMLA leave, supervising Officer Dan 

Belzinski saw Davis with her laptop computer in its case at her 

post, and told her “don’t worry about” having it at work. (Id. at 

¶31.) Based on his assurances, Davis spent her break that day 

using her laptop computer in the visitor area near her post. 

Several months later, Davis received the June 2013 Corrective 

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Action for using her laptop computer while sitting in that same 

area. 

Davis also maintains that Officers are allowed to leave their 

posts without repercussions. She notes that Officers are allowed 

to leave their posts to use the restroom without obtaining 

permission or someone to relieve them temporarily. Davis attests 

that she once heard over the radio that Officers Walker and Jenkins 

left their posts when Officer Walker’s vehicle was in the process 

of being stolen. 

On June 28, 2013, Davis submitted a Problem Solving Request 

Form to the Hospital’s Human Resources Department seeking to have 

the March 2013 Corrective Action and the June 2013 Corrective 

Action removed, and to be paid for her three-day suspension. After 

a meeting between Davis and the Human Resources Department, the 

Hospital upheld her suspension, but noted that Graham was asked to 

further review her accommodation to position 15. (DE #69-4 at 

35.) On July 19, 2013, Davis filed an EEOC charge against the 

Hospital asserting that it failed to accommodate her after her 

2013 FMLA leave in violation of the ADA. Davis amended the EEOC 

charge against the Hospital on November 5, 2013. 

On February 17, 2014, Davis submitted a Problem Solving 

Request Form regarding two attendance points assessed against 

Davis for absenteeism. Davis maintains that she had requested and 

received paid time off (“PTO”) from a supervisor for the days she 

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was not at work. When Davis realized that she had been assessed 

attendance points for those PTO days, she was directed by the Human 

Resources Department to ask Heard about it. When Davis asked Heard 

why she received the attendance points, Heard allegedly responded, 

“I told you to stay out of H.R. You’ve been warned. . . . You’ve 

been warned for the last time.” (DE #81-3 at ¶¶44-45; DE #69-3 at 

156.) Heard attests that he had assessed the attendance points 

without knowing that Davis had received supervisor approval for 

PTO. (DE #69-1 at 92 (Heard Aff. ¶88).) Once he realized his 

mistake, the points were removed from Davis’s record. (Id.) Heard 

denies threatening or intimidating Davis. (Id. (Heard Aff. ¶89).) 

Davis received only a 1% merit increase based her performance 

evaluation dated February 19, 2014, which referenced the two 

Corrective Actions she received in 2013, and indicated that Davis 

needed improvement in the category of “Dignity.” (DE #69-5 at 50-

54; see DE #69-1 at 85 (Heard Aff. ¶50).) Davis received a 2% 

merit increase based on her performance evaluation dated February 

16, 2015. She continues to be employed by the Hospital as an 

Officer. 

Analysis 

FMLA Claim - Interference 

Count I of the Complaint alleges that the Hospital 

discriminated against Davis for exercising her FMLA rights. To 

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prove an FMLA interference claim, a plaintiff must show that: (1) 

she was eligible for FMLA protection; (2) her employer was covered 

by the FMLA; (3) she was entitled to FMLA leave; (4) she provided 

sufficient notice of her intent to take leave; and (5) her employer 

improperly denied benefits to which she was entitled. Ryl–Kuchar 

v. Care Ctrs., Inc., 565 F.3d 1027, 1030 (7th Cir. 2009). The 

parties do not contest that Davis was an eligible employee under 

the FMLA, that the Hospital is covered by the FMLA, that Davis was 

entitled to FMLA leave, or that she provided sufficient notice of 

her intent to take leave. The only issue is whether the Hospital 

improperly denied benefits to which Davis was entitled. 

The Hospital maintains that it did not deny FMLA benefits to 

Davis because it always granted Davis’s requests for FMLA leave. 

But “the ways in which an employer may interfere with FMLA benefits 

are not limited simply to the denial of leave. Interference also 

encompasses ‘us[ing] the taking of FMLA leave as a negative factor 

in employment actions’ and ‘discouraging an employee from using 

such leave.’” Preddie v. Bartholomew Consolidated Sch. Corp., 799 

F.3d 806, 818 (7th Cir. 2015) (quoting 29 C.F.R. § 825.220(c), 

(b)). Upon returning from FMLA leave, an employee is entitled “to 

be restored by the employer to the position of employment held by 

the employee when the leave commenced” or “an equivalent position 

with equivalent employment benefits, pay, and other terms and 

conditions of employment.” 29 U.S.C. § 2614(a)(1). “An employee 

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is entitled to such reinstatement even if the employee has been 

replaced or . . . her position has been restructured to accommodate 

the employee’s absence.” 29 C.F.R. § 825.214. However, the right 

to reinstatement is not absolute; the employee must establish she 

is entitled to the benefit she claims. Kohls v. Beverly Enters. 

Wisc., Inc., 259 F.3d 799, 804 (7th Cir. 2001). Once she has done 

so, “[t]he employer may then present evidence to show that the 

employee would not have been entitled to her position even if she 

had not taken leave.” Id. 

It is undisputed that Davis was entitled to reinstatement to 

the position of Officer upon returning from her 2013 FMLA leave, 

and that the Hospital reinstated Davis as an Officer with the same 

benefits and pay. Davis argues that the Hospital violated FMLA by 

failing to assign her to the same position that she had worked as 

an Officer prior to her 2013 FMLA leave, or an equivalent position. 

Under the FMLA, an employee “is ordinarily entitled to return to 

the same shift or the same or an equivalent work schedule.” 29 

C.F.R. § 825.215(e)(2). An equivalent position “must involve the 

same or substantially similar duties and responsibilities, which 

must entail substantially equivalent skill, effort, 

responsibility, and authority.” 29 C.F.R. § 825.215(a). The 

equivalency requirement “does not extend to de minimus, 

intangible, or unmeasurable aspects of the job.” 29 C.F.R. § 

825.215(f). 

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Davis relies upon Breneisen v. Motorola, Inc., 512 F.3d 972 

(7th Cir. 2008), to assert that genuine issues of material fact 

exist as to whether the Hospital violated FMLA by failing to 

assigned Davis to her pre-FMLA leave position or an equivalent 

position. In Breneisen, the plaintiff was reassigned to a new 

position after returning from FLMA leave. The Seventh Circuit 

held that the plaintiff had provided sufficient evidence that the 

new position was not equivalent to the plaintiff’s pre-FMLA leave 

position to avoid summary judgment. Id. at 977. While both 

positions provided the same pay and benefits, they had different 

responsibilities. Id. The plaintiff’s prior position involved 

administrative functions, while his new position involved manual 

tasks and had less prestige and visibility. Id. The plaintiff 

also proffered sufficient evidence that his position would not 

have been eliminated if he had not taken leave. Id. at 978. 

It is undisputed that Davis worked mostly at position 15 

before her 2013 FMLA leave, and that she was not assigned to 

position 15 upon returning from her 2013 FMLA leave. Davis 

contends that the positions to which Davis was assigned after her 

2013 FMLA leave differed materially from position 15. As an 

Officer, Davis’s responsibilities included walking patrols of the 

interior and exterior of the Hospital; assisting in evacuating, 

lifting, and moving patients; and responding to violent 

situations. While these responsibilities apply to all Officers, 

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the evidence suggests that an Officer working in a particular 

position may be called upon to fulfill certain responsibilities 

more often. Position 15 is limited to 50% walking, and does not 

include transporting bodies to the morgue or exposure to combative 

patients and guests. Davis asserts that the Command Center 

position is “[t]he only post that is arguably equivalent in terms 

of benefits, pay, and terms and conditions of employment” to 

position 15. (DE #81 at 7.) Heard allegedly offered Davis the 

Command Center position after her 2013 FMLA leave, the position 

never materialized. Instead, Davis was assigned to position 8, 

which was a relief position that involved walking, transporting 

bodies to the morgue, and possible exposure to combative patients 

and guests. Davis contends that position 15 was so markedly 

different from other positions that the Hospital assigned Officer 

Higgins to it to accommodate his advanced age and deteriorating 

eyesight. 

The Hospital maintains that Davis had the same or 

substantially similar duties and responsibilities upon returning 

from her 2013 FMLA leave. It asserts that because Davis was not 

called upon to fulfill the particular duties required of position 

8, her duties were substantially similar in position 15 and 

position 8. Davis identifies no incidents in which she had to 

deal with a combative patient or guest, and did not recall any 

incidents in which she was asked to transport a body in 2013 or 

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2014. (DE #69-3 at 142-43.) Davis testified that if she felt 

that she should not have been pushing a wheelchair or anything 

else, she did not push it. (Id. at 144.) The Hospital notes that 

Davis was also assigned to seated positions 5, 6, and 7, which 

require less walking than position 15. Considering the evidence 

in the light most favorable to Davis, the Court finds that genuine 

issues of material fact exist as to whether the positions assigned 

to Davis after her 2013 FMLA leave were substantially similar to 

her pre-FMLA leave position. See Hunt v. Rapides Healthcare Sys., 

LLC, 277 F.3d 757, 766–67 (5th Cir. 2001) (finding questions of 

fact precluded summary judgment as to job equivalency when nurse 

who was assigned to work day shifts returned from FMLA leave and 

was offered a night shift position), abrogated on other grounds by 

Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 126 

S. Ct. 2405, 165 L. Ed. 2d 345 (2006). 

Davis maintains that the Hospital offers no evidence that it 

assigned Officer Higgins to position 15 for any reason other than 

to cover for Davis’s absence, or that it would have reassigned 

Davis to another position and assigned Officer Higgins to position 

15 even if Davis had not taken FMLA leave. The Hospital presents 

evidence that it assigns positions based on the needs of the 

Security Department and the availability of staff, and that Heard 

assigned Officer Higgins to position 15 because of his advanced 

age and diminishing eyesight. Heard attests that this decision 

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was made without regard to Davis’s medical condition or FMLA leave. 

The Hospital does not address whether it would have reassigned 

Davis to another position in order to assign Officer Higgins to 

position 15, even if Davis had not taken FLMA leave. 

Davis contends that an issue of fact exists as to whether 

Officers were assigned to new positions “absent something 

strange.” (DE #81 at 6.) The Court agrees. The Hospital does 

not deny that it had a general practice of assigning Officers to 

the same positions for years, but contends that Officers may be 

scheduled to work in any position and are not guaranteed a specific 

position. Davis does not contest that Officers have no right to 

a particular position, but maintains that Officers generally hold 

their assigned positions for years. Davis proffers her own 

experience of being assigned mostly to position 15 for five years, 

even after returning from other FMLA leaves. She also witnessed 

other Officers being assigned to the same positions for several 

years. The Court finds that genuine issues of material fact exist 

as to whether Davis was entitled to return to position 15 or an 

equivalent position after her 2013 FMLA leave. See Hunt, 277 F.3d 

at 766 (questions of fact precluded summary judgment where 

“although the Medical Center did not formally hire nurses for 

particular shifts, the routine practice was to hire nurses to work 

only on specific shifts” and plaintiff had been working as a 

designated day shift nurse for several years). A reasonable 

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inference can be drawn that Davis would not have been reassigned 

absent her taking FMLA leave, making summary judgment on this point 

inappropriate. 

FMLA Claim – Retaliation 

Count I of the Complaint also alleges that the Hospital 

retaliated against Davis in violation of the FMLA. The FMLA “makes 

it unlawful for an employer to retaliate against an employee who 

exercises his FMLA rights.” Carter v. Chicago State Univ., 778 

F.3d 651, 657 (7th Cir. 2015). A plaintiff may proceed under the 

direct or indirect methods of proof when attempting to establish 

an FMLA retaliation claim. Under the direct method, the only 

method Davis asserts, “a plaintiff must establish that 1) he 

engaged in a protected activity; 2) his employer took an adverse 

action against him; and 3) there is a causal connection between 

his protected activity and his employer’s adverse employment 

action.” Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th 

Cir. 2009). The Seventh Circuit recently explained that the legal 

standard to be applied “is simply whether the evidence would permit 

a reasonable factfinder to conclude that the plaintiff’s race . . 

. or other proscribed factor caused the discharge or other adverse 

employment action. Evidence must be considered as a whole, rather 

than asking whether any particular piece of evidence proves the 

case by itself—or whether just the ‘direct’ evidence does so, or 

the ‘indirect’ evidence.” Ortiz, 2016 WL 4411434, at *4. 

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Davis maintains that the Hospital retaliated against her by 

reassigning her from position 15 to a position that required “a 

lot of walking, transporting bodies, running errands, and walking 

to different posts to relieve other Security Officers,” i.e.,

position 8. (DE #81 at 8.) “A schedule change may constitute a 

materially adverse action when there is evidence that the defendant 

sought to exploit a ‘known vulnerability’ by altering a plaintiff’s 

work schedule upon return from FMLA leave.” Wink v. Miller 

Compressing Co., No. 14-CV-367, 2015 WL 3454220, at *7 (E.D. Wis. 

June 1, 2015) (citing Langenbach v. Wal–Mart Stores, Inc., 761 

F.3d 792, 799 (7th Cir. 2014) and Washington v. Ill. Dept. of 

Revenue, 420 F.3d 658, 662 (7th Cir. 2005)). It is undisputed 

that Heard knew that Davis was recovering from knee surgery upon 

returning from her 2013 FMLA leave. According to Davis, Heard 

exploited this “known vulnerability” by assigning her to position 

8, which required her to walk around the Hospital and caused her 

knee to swell. 

The Court finds that a genuine issues of fact exist as to 

whether Davis’s reassignment was a materially adverse action. As 

explained above, an employee is “ordinarily entitled to return to 

the same shift or the same or an equivalent work schedule.” 29 

C.F.R. § 825.215(e)(2). Prior to her 2013 FMLA leave, Davis was 

assigned mostly to position 15. Upon returning from FMLA leave, 

Davis was reassigned to relief positions 8 and B2, and several 

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seated positions in 2013. Considering the evidence in the light 

most favorable to Davis, the possibility of being reassigned to a 

different position could dissuade a reasonable employee from 

exercising her rights under the FMLA. 

Davis must also prove a causal connection between the adverse 

employment action and her FMLA leave. Davis attempts to do so by 

arguing that two Corrective Actions demonstrate that she was 

treated differently from similarly-situated Officers. She asserts 

that she received the March 2013 Corrective Action for secretly 

recording her meeting with Heard and Graham despite the fact that 

Graham subsequently told her that he had no objection to the 

recording. She infers that because Graham had no objection, she 

should not have received the Corrective Action, though she admits 

that Heard “was furious” about being recorded. (DE #81-3 at ¶20.) 

Hospital responds that this Corrective Action was clearly 

warranted. Davis admitted that she secretly recorded the meeting, 

and that she later lied by telling Graham that she had not recorded 

the meeting, in violation of Hospital policy. Davis does not offer 

evidence of any other Officer who secretly recorded a meeting, or 

lied about doing so. 

Davis also relies upon her June 2013 Corrective Action for 

being away from her post and using her laptop computer at work in 

violation of Hospital policy. Davis maintains that other Officers 

were allowed to leave their posts without repercussions. She notes 

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that Officers leave their posts to use the restroom, and that two 

Officers once left their posts when an Officer’s vehicle was being 

stolen. Davis had also allegedly received assurances from 

supervising Officer Belzinski that she should not worry about 

having her laptop computer at work, and witnessed other Officers 

using laptop computers and other electronic devices at work. 

In response, the Hospital argues that the Officers identified 

by Davis are not directly comparable to her. But more 

fundamentally, Davis must show that the comparable Officers did 

not take FMLA leave. Hull v. Stoughton Trailers, LLC, 445 F.3d 

949, 952 (7th Cir. 2006) (affirming summary judgment on FMLA 

retaliation claim where “Hull fails to present any evidence on the 

critical independent variable here: FMLA leave (i.e., which 

comparators did (or did not) take FMLA leave)”); see also 

Langenbach, 761 F.3d at 803 (the similarly-situated analysis under 

the direct method “is substantially the same as the analysis under 

the indirect method”). Davis makes no effort to establish that at 

least one of the other Officers “is directly comparable to [her] 

and did not take FMLA leave.” Hull, 445 F.3d at 952 (emphasis in 

original). Thus, although the evidence presented by Davis may 

establish that she was punished with greater severity than other 

Officers for violating Hospital policy, it does not establish a 

similarly situated comparator group. 

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Davis cites Benuzzi v. Board of Education of the City of 

Chicago, 647 F.3d 652 (7th Cir. 2011), for the proposition that a 

reasonable jury could find that these Corrective Actions have the 

power to dissuade a reasonable employee from pursuing her rights. 

In Benuzzi, the Seventh Circuit held that a “sweeping Notice of 

Disciplinary Action citing petty misdeeds that allegedly occurred 

months ago” and a memorandum restricting the plaintiff’s hours at 

work, which were given to the plaintiff the day after she gave her 

deposition, “could constitute an adverse action within the meaning 

of the direct method of proving retaliation.” 647 F.3d at 665 

(citation omitted). The court explained that a “reasonable 

employee could be deterred from filing a discrimination complaint 

or participating in a deposition if doing so would be followed by 

the (highly probable) possibility of discipline for activities he 

may have long forgotten and the limitation of his ability to be 

present at his workplace.” Id. 

The Court finds Benuzzi to be distinguishable. In Benuzzi, 

the employee received the disciplinary action for “long forgotten” 

activities immediately after the employee’s protected action. Id. 

Here, Davis received the Corrective Actions shortly after she 

violated the Hospital’s policies. The June 2013 Corrective Action 

occurred several months after Davis returned from her 2013 FMLA 

leave. The March 2013 Corrective Action was issued on March 18, 

2013, two weeks after Davis secretly recorded her meeting with 

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Graham and Heard, and three weeks after her return from FMLA leave. 

See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 221 (7th Cir. 

2015) (“temporal proximity or suspicious timing alone is rarely 

sufficient to overcome a motion for summary judgment”). The Court 

finds that the timing of the March 2013 Corrective Action is not 

sufficient to overcome summary judgment, given the undisputed 

evidence that Davis violated Hospital policy by secretly recording 

the meeting, and lying about it. 

Davis also relies upon her confrontation with Heard regarding 

his assessment of attendance points against her as evidence of the 

Hospital’s retaliation for her FMLA leave.2 Davis maintains that 

when she asked Heard why she had received attendance points for 

her PTO days, Heard responded, “I told you to stay out of HR. . . 

. You’ve been warned for the last time.” (DE #69-3 at 156.) 

Davis insists that Heard’s statements constitute an admission that 

he used write-ups like the Corrective Actions to retaliate against 

her for bringing her job issues, including her reassignment after 

her FMLA leave, to the Human Resources Department. In response, 

the Hospital ignores Heard’s alleged statements to Davis. Instead, 

the Hospital maintains that the attendance points are not an 

adverse employment action because Heard told Davis that the points 

                                                            

2 As noted above in the Court’s decision on the Hospital’s motions to strike (DE 

#91, DE #93), the Court disregards other evidence proffered by Davis that was 

not produced before the close of discovery, or is otherwise inadmissible hearsay 

or not based on personal knowledge. 

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would be removed from her record, and that they were in fact 

removed. Considering the evidence in the light most favorable to 

Davis, the Court finds that Heard’s statements creates a triable 

issue as to whether there is a causal link between Davis’s pursuit 

of her FMLA rights and her assigned positions upon return from 

FMLA leave. As a result, the Hospital’s motion for summary 

judgment on Count I is DENIED. 

ADA Failure to Accommodate Claim 

Count II of the Complaint alleges that the Hospital violated 

the ADA by reassigning Davis to a position that required walking, 

pushing, and lifting, and by denying her request to be reassigned 

to her pre-surgical position or a position where she could elevate 

her leg.3 Under the ADA, as amended by the ADA Amendments Act of 

2008, it is unlawful for an employer to “discriminate against a 

qualified individual on the basis of disability.” 42 U.S.C. § 

12112(a). Discrimination includes “not making reasonable 

accommodations to the known physical . . . limitations of an 

otherwise qualified individual with a disability” who is an 

                                                            

3 The Hospital argues that the Complaint fails to assert a failure to accommodate 

claim under the ADA, and thus, Davis has waived this claim. (DE #68 at 4-5.) 

The Court disagrees because the Complaint alleges that Davis requested 

reassignment because her assignment caused her knee to swell, and that the 

Hospital refused her request. The Hospital also maintains that the Complaint 

fails to allege a claim based on a hostile work environment. Davis appears to 

concede this point, as she fails to reply to this argument, and thereby, waives 

any hostile work environment claim. See Johnson v. Gen. Bd. of Pens. & Health 

Benefits of United Methodist Church, 733 F.3d 722, 729 (7th Cir. 2013) (holding 

that arguments not raised in opposition to a motion for summary judgment are 

waived).

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employee, unless the employer can “demonstrate that the 

accommodation would impose an undue hardship on the operation of 

the business.” 42 U.S.C. § 12112(b)(5)(A). “To establish a claim 

for failure to accommodate, a plaintiff must show that: (1) she is 

a qualified individual with a disability; (2) the employer was 

aware of her disability; and (3) the employer failed to reasonably 

accommodate the disability.” Sears, Roebuck & Co., 417 F.3d at 

797 (citation omitted). The parties do not dispute that Davis is 

a qualified individual with a disability, or that the Hospital was 

aware that Davis had a disability related to her knees. The 

parties dispute whether the Hospital reasonably accommodated 

Davis’s disability. 

“[T]he ADA requires that employer and employee engage in an 

interactive process to determine a reasonable accommodation. If 

a disabled employee shows that her disability was not reasonably 

accommodated, the employer will be liable only if it bears 

responsibility for the breakdown of the interactive process.” Id.

(internal citations and quotation marks omitted). An employee 

must clarify the extent of her medical restrictions in order to 

impose liability on the employer for its failure to provide a 

reasonable accommodation. Hoppe v. Lewis Univ., 692 F.3d 833, 840 

(7th Cir. 2012). A reasonable accommodation occurs when “the 

employer does what is necessary to allow the employee to work in 

reasonable comfort.” Id. “An employer need only provide a 

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qualified individual with a reasonable accommodation, not the 

accommodation the employee would prefer.” Id. (citation, internal 

quotation marks and brackets omitted). 

Davis admits that the Hospital initiated the interactive 

process when she returned to work on February 27, 2013, but insists 

that Heard caused problems with that process. Davis maintains 

that Heard refused to assign her to position 15, insisted that 

there were no “light duty” positions in the Security Department, 

and knowingly assigned her to positions that aggravated her stillhealing knee. The Hospital maintains that it has no “light duty” 

program in the Security Department. Davis asserts that a 

reasonable jury could conclude that position 15 and the Command 

Center position were proof that “light duty” positions existed in 

that Department. But “even if ‘light duty’ would have been 

[Davis’s] preferred accommodation, the ADA does not entitle a 

disabled employee to the accommodation of [her] choice. Rather, 

the law entitles [her] to a reasonable accommodation in view of 

[her] limitations and [her] employer’s needs.” Swanson v. Vill. 

of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015).

It is undisputed that Davis was assigned to position 8 on her 

first work day after her 2013 FMLA leave. That day, Davis 

presented a doctor’s note stating that she was sufficiently 

recovered to resume a normal workload, and a fitness for duty 

certificate providing that she could perform all functions of her 

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job. Davis attests that she worked in position 8 though her knee 

started swelling, and kept pressing to be assigned to position 15. 

Davis was assigned to relief position B2 for one day, which did 

not cause her problems. She then was assigned to a seated position 

for the first week of March 2013. At the March 6, 2013, 

accommodation meeting, Davis confirmed that she was able to return 

to work without restrictions and perform the essential functions 

of her position, and requested to be reassigned to position 15. 

After this accommodation meeting, Davis was assigned mostly to 

seated positions in March, April, May, June and July, with the 

exception of five days at relief position B2 in May and June. 

Davis worked at position 8 on July 11, which she testified was 

“not as bad” because she relieved someone at his post. 

In mid-July 2013, Davis submitted a doctor’s note to the 

Hospital stating that she needs a table and to keep her feet flat 

on the floor.4 The Hospital called an accommodation conference on 

July 25, 2013, at which time Davis indicated that she was able to 

perform all job functions, and requested a desk and chair at her 

assigned seated positons. The Hospital agreed and replaced stools 

                                                            

4 While the Complaint alleges that Davis’s disability required that she elevate 

her leg, it is undisputed that Davis never presented the Hospital with a doctor’s 

note indicating that she needed to elevate her leg. Davis does not respond to 

the Hospital’s argument regarding this alleged medical restriction. As a 

result, Davis has waived any argument that the Hospital failed to reasonably 

accommodate this particular medical restriction. See Johnson, 733 F.3d at 729 

(holding that arguments not raised in opposition to a motion for summary 

judgment are waived).

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and podiums with desks and chairs at positions 5 and 6. Davis was 

not assigned to those positions until the accommodations were in 

place. Thereafter, Davis continued to be assigned mostly to seated 

positions. Even taking these facts in the light most favorable to 

Davis, it is undisputed that the Hospital engaged in the 

interactive process with Davis regarding her known disability and 

need for reasonable accommodation. While Davis would have 

preferred to work at position 15, the Hospital need only provide 

Davis with “a reasonable accommodation, not the accommodation 

[she] would prefer.” Hoppe, 692 F.3d at 840. 

Davis relies on Heard’s alleged statements that Officers were 

not allowed to work with restrictions as evidence of the Hospital’s 

failure to reasonably accommodate her disability. A policy that 

requires “all employees to return to work without medical 

restrictions” may be referred to as a “100% healed policy.” 

Mazzacone v. Tyson Fresh Meats, Inc., No. 3:13-CV-897, 2016 WL 

3876903, at *5 (N.D. Ind. Jul. 18, 2016). A 100% healed policy 

constitutes a per se violation of the ADA because it “prevents 

individual assessment . . . [and] necessarily operates to exclude 

disabled people that are qualified to work.” Steffen v. Donahoe, 

680 F.3d 738, 748 (7th Cir. 2012) (citing Powers v. USF Holland, 

Inc., 667 F.3d 815, 819 (7th Cir. 2011)). However, Davis must 

provide evidence that the Hospital applied a 100% healed policy 

during the time period at issue. See Powers, 667 F.3d at 823 n.8 

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(“Powers presented sufficient evidence that Holland applied a 100% 

healed policy”) (emphasis added). Summary judgment is appropriate 

where a plaintiff does not proffer evidence that would permit a 

jury to conclude that the employer “eschewed an individual 

assessment in favor of a 100% healed policy.” Mazzacone, 2016 WL 

3876903, at *6. 

Davis attests that Heard told her that if she had any 

restrictions, he did not have a job for her, and proffers a 

memorandum of an EEOC onsite visit which notes that Heard stated, 

“no one can return to work with restrictions,” and “employees must 

return with no restrictions,” during an interview with the EEOC 

investigator. (DE #81-8 at 1.) But even considering this evidence 

in the light most favorable to Davis, she proffers no evidence 

from which a jury could conclude that the Hospital applied this 

type of policy to Davis and required her to be fully healed prior 

to returning to work. See Mazzacone, 2016 WL 3876903, at *5-*6. 

It is undisputed that Davis returned to work after her 2013 FMLA 

leave, and that the Hospital held accommodation meetings for Davis, 

assigned her mostly to seated positions thereafter, and made other 

reasonable accommodations to allow Davis to work in those 

positions, including replacing podiums and stools with desks and 

chairs to accommodate her disability. For these reasons, the Court 

GRANTS the Hospital’s motion for summary judgment as to Count II. 

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ADA Retaliation Claim 

Count III of the Complaint alleges that the Hospital 

retaliated against Davis in violation of the ADA. “The ADA 

prohibits employers from retaliating against employees who assert 

their right under the act to be free from discrimination.” Povey 

v. City of Jeffersonville, Ind., 697 F.3d 619, 624 (7th Cir. 2012) 

(citing 42 U.S.C. § 12203(a)). “Employers are forbidden from 

retaliating against employees who raise ADA claims regardless of 

whether the initial claims of discrimination are meritless.” Id. 

(citation omitted). A plaintiff can establish retaliation under 

the ADA through either the direct or indirect method of proof. 

Preddie, 799 F.3d at 814. As with her FMLA retaliation claim, 

Davis seeks to prove her ADA retaliation claim using the direct 

method. The direct method of proof requires Davis to show that: 

(1) she engaged in statutorily protected activity; (2) she suffered 

an adverse employment action; and (3) there is a causal connection 

between the two. Id. The parties do not dispute that Davis 

engaged in statutorily protected activity when she asked for 

reasonable accommodations and filed EEOC charges. 

The Hospital asserts that Davis fails to demonstrate that she 

was subjected to an adverse employment action. “Adverse employment 

actions are actions that would dissuade a reasonable person from 

engaging in a protected activity.” Dooley v. Abbott Labs., No. 07 

C 7249, 2009 WL 1033600, at *9 (N.D. Ill. Apr. 17, 2009) (citation 

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omitted). Davis maintains that she suffered adverse employment 

actions when she was denied assignment to position 15, and when 

received the March 2013 Corrective Action and the June 2013 

Corrective Action. She admits that write-ups may not normally be 

an adverse employment action. See, e.g., Arive v. Essilor Labs. 

of Am., Inc., No. 1:04 CV 0099 DFH WTL, 2006 WL 839467, at *6 (S.D. 

Ind. Mar. 30, 2006) (“A written reprimand generally is not 

considered an adverse employment action unless it carries with it 

some concrete effect on an employee’s position, pay, benefits, or 

prospects with the employer.”) (citations omitted). For the 

reasons provided above, there is a genuine issue of fact as to 

whether Davis’s reassignment constitutes an adverse employment 

action. See also Flanagan v. Office of Chief Judge of Circuit 

Court of Cook Cty., Ill., No. 06 C 1462, 2007 WL 2875726, at *10 

(N.D. Ill. Sept. 28, 2007) (finding it reasonable to conclude that 

reassignment to desk duty was retaliatory where plaintiff 

proffered evidence that it was a form of discipline). The June 

2013 Corrective Action resulted in a three-day suspension, and is 

undisputedly an adverse employment action. (See DE #68 at 13.) 

Davis does not demonstrate that the March 2013 Corrective Action 

resulted in a concrete effect on her position. 

Davis insists that her ADA retaliation claim is based on 

“more” than just these actions. In Bob-Maunuel v. Chipotle Mexican 

Grill, Inc., 10 F. Supp. 3d 854 (N.D. Ill. 2014), the plaintiff’s 

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managers, who were aware that the plaintiff had filed an EEOC 

Charge, increased their monitoring of the plaintiff’s performance 

and increased the frequency in which they documented his alleged 

deficiencies, which was allegedly done in an effort to terminate 

him. Id. at 886. The court held that “the pronounced increase in 

negative reviews and the careful scrutiny of plaintiff’s 

performance, coupled with testimony suggesting that management 

personnel were acutely aware of plaintiff’s EEOC charge, is 

sufficient to establish a causal link for plaintiff’s prima facie

case of retaliatory discharge.” Id. (citation omitted). The court 

found that the evidence was sufficient to establish a causal link 

between the plaintiff’s internal complaints and EEOC Charge and 

his termination. Id. 

As with her FMLA retaliation claim, Davis relies on her 

confrontation with Heard over attendance points to demonstrate a 

causal link between her requests for accommodation and her 

assignment to other positions and the Corrective Actions.5 It is 

undisputed that Heard was aware of Davis’s disability, as well as 

her requests to be accommodated by being assigned to position 15 

or an equivalent position. When Davis asked Heard why he had 

assessed her attendance points for absenteeism in February 2014, 

he told her that he had warned her for the last time about going 

                                                            

5 As explained in footnote 2, the Court disregards evidence proffered by Davis 

that has been stricken.

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to Human Resources, presumably to raise her ADA and FMLA issues. 

This evidence would permit a reasonable factfinder find a causal 

connection between Davis’s pursuit of her ADA rights and her 

reassignment and/or the June 2013 Corrective Action. Therefore, 

the Court DENIES the Hospital’s motion for summary judgment on 

Count III. 

CONCLUSION 

 For the reasons set forth above, “Defendant’s Motion for 

Summary Judgment” (DE #67) is GRANTED IN PART and DENIED IN PART,

“Defendant’s Motion to Strike Portions of Plaintiff’s Evidence, 

Statement of Genuine Disputes and Plaintiff’s Affidavit from 

Plaintiff’s Response to Defendant’s Motion for Summary Judgment” 

(DE #91) is DENIED, “Defendant’s Motion to Strike Portions of 

Plaintiff’s Evidence based upon Failure to Disclose during 

Discovery” (DE #93) is GRANTED IN PART and DENIED IN PART, and the 

“Stipulated Motion to Apply the Legal Standards Set Forth in Ortiz 

vs. Werner to the Parties’ Pending Summary Judgment Pleadings and 

Evidence” (DE #98) is GRANTED. Count II of the First Amended 

Complaint is hereby DISMISSED.

DATED: September 30, 2016 /s/ RUDY LOZANO, Judge 

 United States District Court 

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