|

(2) that she was qualified for the position,

| (3) that she was subject to an adverse employment
action, and .

(4) that the circumstances surrounding the adverse
action indicate that it is more likely than not that

her disability was the reason for the action.

Although Brown has not identified through which of those
methods she would seek to meet her burden, she fails to
demonstrate a genuine issue of material fact under either
approach as to the circumstances surrounding her discharge.
Brown asserts that her supervisor Robert Doporcyk (“Doporcyk”)
repeatedly asked her to perform tasks that her doctor restricted
her from performing and modified her work environment to make it
harder for her to perform her job. More specifically, Brown
testified that Doporcyk repeatedly asked her to lift boxes that
were too heavy for her (B. Dep. 116). At the same time, though,
Brown admits that Eaton adjusted her work area in response to her
requests to make it more comfortable and efficient (B. Resp.
4923-25). Furthermore, Brown acknowledges that neither Doporcyk
nor anyone else at Eaton made her lift boxes or perform other
tasks that she was restricted from performing, nor did they
discipline her for refusing to lift boxes (B. Dep. 80; B. Resp.
qug).

But it is really unnecessary in the circumstances of this
case to address the numerous contested substantive issues

regarding Brown's disability vel non at all. That is so because

4



Conclusion

Brown has failed to demonstrate, using either the direct or
indirect method, the existence of a material issue of fact as to
whether disability played any part in the decision to terminate
her, something essential to any viable ADA claim. Relatedly,
Brown has not established a genuine issue over whether Eaton's
stated reason for terminating her was pretextual. In sum, Eaton
is entitled to a judgment as a matter of law. Its motion for

summary judgment is granted, and this action is dismissed.

a

Milton I. Shadur
Senior United States District Judge

Date: December 1, 2003



Brown's failure to demonstrate a temporal connection between
Doporcyk's claimed harassment and the discharge, she has offered
no evidence as to any inappropriate motivation on Shedor's part
when the latter made the decision to fire Brown.

All the same, summary judgment in Eaton's favor would still
be granted even if Brown had succeeded on her prima facie case
under McDonnell Douglas (as she has not), for she has also fallen
short in tending to show that Eaton's stated reason for
terminating her was pretextual (Pugh, 259 F.3d at 626). Eaton
has supplied the deposition testimony of Doporcyk, Mack and
Shedor. In response, Brown points only to her own deposition
testimony that she did not recall ever having the conversation
that Eaton says gave rise to her termination (Brown Dep. 86-87) .*

Not surprisingly, that failure of recollection does not
suffice. As Nawrot v. CPC Int'l, 277 F.3d 896, 906 (7th Cir.
2002), quoting Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.

2000), has stated the often-repeated doctrine in this area:

® Brown's counsel misleadingly labels Brown's denial that
she “slowed down work at the plant” (B. Add'l Facts 416) as a
denial that the asserted conversation with Mack took place (B.
Mem. 11). And Mem. 2 says flatly:

Plaintiff has denied under oath that any such a
conversation took place.

But that is simply not the case: Brown's Dep. 86-87 testimony
(which counsel cites for that proposition) was simply that she
did not recall having the conversation, not a denial that it took
place. In all events, though, the determinative fact is that the
matter was reported to Shedor and she believed it.

6


no reasonable factfinder could conclude that Brown was fired
because of her impairments. Brown has not testified that
Doporcyk's assertedly harassing conduct was either
contemporaneous with or causally related to her discharge (Geier
v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)). Moreover,
on the record evidence it is uncontroverted that Doporcyk was not
involved in any way in the decision to terminate Brown, which was
made by Eaton's Human Resource Supervisor Debbie Shedor
(“Shedor”) .*

In cases such as this, the relevant focus is on the
motivation of the decisionmaker--here, Shedor (Chiaramonte v.
Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997)).
Doporcyk's only involvement was to relay a complaint by Mack to
Shedor, who then heard from Mack and several other co-workers

about Brown's conduct on August 2, 2000.5 And quite apart from

* Because Shedor's affidavit does not state expressly who

in the Eaton hierarchy ultimately made such termination
decisions, but it is clear that the decision was based on her
determination that Brown had violated Guideline 17, this opinion
will speak of Shedor as the decisionmaker.

5 Brown does not argue--and nothing in the record shows--
that Doporcyk would not have reported the incident to the
Department but for his claimed animus toward Brown. Such a
showing might perhaps have been relevant to Brown's argument of
discrimination, but without it Brown's attempts to urge
Doporcyk's animus are for naught. That is particularly true
because Brown has not argued that this is a hostile work
environment case (Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998)), and this Court does not read the facts as even
arguably stating such a claim.


F.3d at 906). Here Brown: has tendered no evidence that the
Guidelines were enforced arbitrarily or inconsistently (Curry v.
Menard, Inc., 270 F.3d 473, 479-80 (7th Cir. 2001)),’ and the
circumstances are not so askew that common sense casts doubt on
Eaton's motives (Nawrot, 277 F.3d at 906-07). No judicial
second-guessing is in order, and Brown fails in the pretext area
as well.

As a last-ditch effort, Brown argues that even if Eaton's
stated reason for dismissing her is legitimate, it should still
be held liable under a mixed-motive theory. Brown contends that
under Desert Palace, Inc. v. Costa, 123 S.Ct. 2148 (2003) she
need demonstrate only, through either direct or indirect
evidence, that her disability was a motivating factor for the
adverse employment action. No court in this circuit has yet
decided whether or not the sea change that will likely follow the
Title VII decision in Desert Palace extends to ADA as well
(although some courts elsewhere have so held--for one court's
take on this issue, see Skoms v. eedw su America .L.C
267 F. Supp. 2d 995, 1000 (D. Minn. 2003)). But that question is
purely hypothetical here, because--as already stated--Brown has

fallen at the prima facie hurdle.

7 Indeed, Eaton has provided proof that it had previously
discharged the only ather employee whom it had found to have
committed a violation of the same Guideline 17--a nondisabled
employee (Shedor Aff. 47).



g
Minute Order Form (060973—

5 \o United States District Court, Northern District of Iinois
a
eeaweat fae | Milton Shaaur | Sr
CASE NUMBER 02C551 DATE 12/1/2003
CASE Florence Brown vs, Eaton Corp.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintifY, and (b) state briefly the nature
MOTION: of the motion being presented.] ,
DOCKET ENTRY: aa “
qa) o Filed motion of [ use listing in “Motion” box above] as
(2) Qa Brief in support of motion due___. a
Q) Qo Answer brief to motion due__. Reply to answer bi jefdue__
(4) oO Ruling/Hearing on setfor at
(5) o Status hearing[held/continued to] [set for/re-set for]on_.__setfor__—S_at
(©) oO Pretrial conference[held/continued to] [set for/re-set for] on_ se setfor_ at
”) oO Trial[set for/re-set for]on__—_at. oe
(8) a [Bench/Jury trial] [Hearing] held/continued to_
(9) im} This case is dismissed [with/without] prejudice and wil Sut costs[by/agreement/pursuant to]
CIFRCP4(m) CLocal Rule 41.1 COFRCP41(@)(1) “DQ FRCP41(@}Q2).
| [Other docket entry] Enter Memorandu Opinion and Order. In sum, Eaton is entitled to a

judgment as a matter of law. Its motion for sumatory judgment i is granted, and this action is dismissed.
(11-1) othe

(11) [For further detail see order attached to the original minute order.]
‘No notices required, advised in open court.

No notices required.

o | Notices mailed by judge's staff. ae

Notified counsel by telephone. ;
Docketing to mail notices. Sakti
Mail AO 450 form. tenn :
d81si0 SN
Copy to judge/magistrate judge. 4409 TERE :
courtroom DehZl WY 2-930 £0
SN deputy's
intial T T4-U bathitte received in
central Clerk's Office



But pretext requires more than a showing that the

decision was “mistaken, ill considered or foolish,

[and] so long as [the employer] honestly believed those

reasons, pretext has not been shown.”

Here Brown has offered no evidence at all to suggest that the
Department made an unreasonable decision when it fired her based
on the complaints it received, nor has she provided any evidence
even suggesting that the Department was motivated by any reason
other than the stated one.

Brown's other attempts to discredit Eaton's stated reason
for termination also miss the mark. They call for only brief
discussion.

For one thing, Brown contends that Mack's affidavit
contradicts what Mack originally told Shedor, but that is a red
herring because--quite obviously--Shedor did not have Mack's
affidavit at the time she decided to fire Brown. Instead it is
uncontroverted that Shedor had and acted upon Mack's
contemporaneous. (August 4, 2000) signed statement that confirmed
Shedor's interview of Mack that day (B. Ex. 11), and that
directly tracks Shedor's statement of the slowdown reason for
firing Brown.

As for Brown's contention that her conduct did not
constitute a violation of Eaton's Guidelines, our Court of
Appeals has repeatedly warned that courts “do not sit as a super-

personnel department that reexamines an entity's business

decision and reviews the propriety of the decision” (Nawrot, 277


t

i:
ground for termination.?
But Brown's claim is just as simple to dispatch as it was to

summarize, for she has provided no evidence that would allow a

reasonable person to conclude that Eaton fired her because of her
impairments. There were two paths that she could have followed
to that end: She could have proffered direct or circumstantial
evidence of discrimination (the “direct method”), or she could
have established her case* using the burden-shifting method (the
“indirect method”) articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) (DeLuca v. Winer Indus. Inc., 53 F.3d

793, 797 (7th Cir, 1995)). As applied to ADA, the McDonnell
Douglas test requires that a plaintiff show (Lawson v. CSX
Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001)):

(1) that she is disabled within the meaning of the
ADA,

* Conduct Guideline 17, part of the Employee Handbook
provided to Brown and all other Eaton employees, prohibited
“Deliberately slowing down operations, restricting work, or
causing/contributing to the slowing down of another employee's
work.” And the Guidelines state that the “suggested discipline’
for such a violation is “discharge.”

> In the summary judgment context, of course, Brown's
burden is only that of creating reasonable inferences, not one of
proof as such (see Anderson v. Baxter Healthcare Corp., 13 F.3d
1120, 1124 (7th Cir. 1994)). But any continued repetition of
that burden involves an awkward locution, an awkwardness
contributed to by the fact that so much of the caselaw speaks of
what a party responding to a Rule 56 motion must “establish” or
"prove" or “show.” Whenever this opinion employs such terms, it
should therefore be understood as denoting Brown's lesser burden
of creating reasonable inferences, not the actual burden of
persuasion.


Co., 282 F.3d 467, 471 (7th Cir. 2002)). And Pugh v, City of
Attica; 259 F.3d 619, 625 (7th Cir. 2001) has echoed the teaching

of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986):

A genuine issue of triable fact exists only if “the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”
As with any summary judgment motion, this Court accepts nonmovant
Brown's version of any disputed facts, but only so long as it is
supported by the evidence.

lication of ani
Because the parties are of course fully aware of the

circumstances and factual issues involved in this dispute, they

will not be set out in a separate Facts section as this Court

most frequently does. Instead they will be referred to here as
necessary in the course of the substantive discussion.

Brown's claim is simple to summarize: She was diagnosed in
1999 with degenerative disk disease, degenerative joint disease
and degenerative arthritis--and she claims those impairments were
the reason for her August 2000 firing. For its part, Eaton
claims that it discharged Brown because Brown's co-worker Phyllis
Mack (“Mack”) reported on August 2, 2000 that Brown told her that
the two of them should slow down the pace of work so as to
stretch it out to occupy the entire shift--if true, a violation

of one of Eaton's express employment Guidelines and a solid



} IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FLORENCE BROWN,

Plaintiff,

rey

{

pec - 4, 2003

)
)
)
)
v. ) No. 02 C 551
)
EATON CORPORATION, )

)

)

Defendant.

MEMORANDUM OPINION AND ORDER

Florence Brown (“Brown”) has sued her former employer Eaton
Corporation (“Eaton”), charging that Eaton violated the Americans
with Disabilities Act (“ADA,” 42 U.S.C. §§12111-12117) when it
terminated her employment. Eaton has moved for summary judgment
under Fed. R. Civ. P. (“Rule”) 56, and both sides have complied
with this District Court's LR 56.1.1 For the reasons stated in
this opinion, Eaton's motion is granted and this action is
dismissed.

Summar dgment ndards

Familiar Rule 56 principles impose on movant Eaton the
burden of establishing a lack of a genuine issue of material fact
(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For
that purpose this Court must “consider the evidentiary record in
the light most favorable to the non-moving party ... and draw all

reasonable inferences in [her] favor” (Lesch v. Crown Cork & Seal

1 This opinion cites to Brown's LR 56.1 response to Eaton's

statement as “B. Resp. q--.” \