pleadings, but, “by affidavits or as otherwise provided in [Rule 56], must set forth
specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). A
“genuine issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue 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); Insolia
v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the
record as a whole in a light most favorable to the nonmoving party and draw all
reasonable inferences that favor the nonmoving party. Anderson, 477 U.S, at 255; B
Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). In addition pleadings filed
by pro se plaintiffs are entitled to a liberal reading and are held to a less stringent
standard than the standard that is applied to pleadings drafted by licensed attorneys.
Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999).
DISCUSSION

The ADA states that no covered employer shall “discriminate against a qualified
individual with a disability because of the disability .. ..” 42 U.S.C. § 12112(a). The
RA states that no “otherwise qualified individual with a disability” shall “be denied the

benefits of, or be subjected to discrimination under any program or activity receiving

-4.



note that the accommodations requested by Kendra would not have altered her ability
to perform the essential functions of her position. Even if she were allowed to work
at the VA hospital or allowed a set schedule for the van, she would not be able to do
the typing, filing, and other tasks necessary for her position. She also requested that
she be given light duty work as an accommodation, but that would not have allowed
her to perform the essential functions of her secretary position. Rather it would have
involved her transfer to a light duty position. Pursuant to Local Rule 56.1 Kendra
admits that Dr. Nand asked personnel whether a light duty position was available for
Kendra and was told that there was not a position available due to downsizing.
Therefore, we find that Kendra was not qualified to perform the essential functions of
her position with or without a reasonable accommodation.
II. Whether there was a Material Adverse Employment Action

For a disability discrimination claim the plaintiff must show that she suffered an
adverse employment action. Kersting, 250 F.3d at 1115. Kendra alleges that Craig
was reprimanded for writing books and teaching during work time and Kendra alleges
that Craig blamed Kendra for being caught by his superiors. According to Kendra, in
retaliation, Craig embarrassed her in front of other employees by making a scene about
data input mistakes. Craig also allegedly gave Kendra a “full successful” rating rather

than an “outstanding rating” and refused to meet with a union representative to discuss

-9-



v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999) (indicating that elements of ADA
and RA claims are extremely similar and are“distinguishable only because [the RA] is
limited to programs receiving federal financial assistance.”’); Gile v. United Airlines,
Inc., 95 F.3d 492, 496-97 (7th Cir. 1996) (indicating that RA incorporates standards
from ADA).

For an ADA or RA disparate treatment claim a plaintiff must show that: 1)she
is disabled under the ADA and RA, 2) she is “qualified to perform the essential
functions of [her] job either with or without reasonable accommodation,” and 3) her
employer took an adverse employment action against her because of her disability.
Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001); Bekker v.
Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000). But see Rehling v. City
of Chicago, 207 F.3d 1009, 1018 n.7 (7th Cir. 2000) (applying burden shifting
McDonnell Douglas method and elements to ADA disparate treatment claim).

I. Whether Kendra Can Perform the Essential Functions of Her Position

Defendants argue that, even with reasonable accommodations, Kendra could not
have performed the essential functions of her position. For an ADA or RA claim a
plaintiff must show that she is a “qualified individual with a disability.” 42 U.S.C.
§ 12112(a). To be a “qualified individual with a disability” a plaintiff must be “an

individual with a disability who, with or without reasonable accommodation, can

6-


“Federal financial assistance . . .” solely because of the individual’s disability. 29
US.C. § 794(a). Two distinct types of discrimination claims that can be brought under
the ADA and RA are: 1) failure to accommodate claims, and 2) disparate treatment
claims. See Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999)
(indicating the two types of claims for ADA cases), Lenker v. Methodist Hosp., 210
F.3d 792, 799 (7th Cir. 2000) (indicating the above types of ADA claims); Washington
v. Indiana High School Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999)
(indicating that the above mentioned types of claims are two of the three types of
claims under the RA and ADA).

In order to establish a claim for a failure to accommodate under the ADA and
RA, a plaintiff must show that: 1) she is disabled under the ADA or RA, 2) her
employer knew about the disability, and 3) she is “otherwise qualified to perform the
essential functions of the job sought, with or without reasonable accommodation.”
Winfrey v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001); McPhaul v. Board of
Comm’rs of Madison County, 226 F.3d 558, 563 (7th Cir. 2000), But see Foster, 168
F.3d at 1032 (indicating that for a failure to accommodate claim a plaintiff must also
show that she suffered an adverse employment action). See also Lenker, 210 F.3d at
799 (holding that it is not appropriate to apply the McDonnell Douglas burden shifting

method to cases brought under the reasonable accommodation part of the ADA); Silk

5.


Defendants contend that Kendra cannot perform the essential functions of her
position. Pursuant to Local Rule 56.1 Kendra admitted that because of her back injury
she could not sit at a typewriter long enough to effectively transcribe dictation and that
she could not effectively type and file correspondence, reports, bulletins, memos,
research reports, and manuscripts. She also admits that she had difficulty walking the
ten feet to answer the phone at work, walking to deliver reports in the office, and
walking the three blocks between the clinic and hospital. Pursuant to Local Rule 56.1
Kendra admits that the above mentioned duties were “primary duties listed in her job
description.” We think that admission plus the fact that she is described as a secretary
are sufficient to conclude that the above mentioned tasks, particularly using a
typewriter, transcribing dictation, and filing for long periods of time are essential
functions for the secretary position that Kendra held.

Kendra does not claim that they are not essential functions for her position.
Rather she argues that she was able to do the above mentioned activities, but only for
a short period of time. However, the position held by Kendra required her to perform
the duties for long periods of time. The duration of the activities is a part of the
position requirements. For example, if the position usually required the secretary to
type twenty letters a day and Kendra showed that she was able to sit down and type one

letter a day, she clearly could not perform the essential functions for her position. We

-8-


Minute Order Form (06/97)

wu

United States District Court, Northern District of Illinois

2
'| _ Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
~ or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C3715 DATE 5/13/2003
CASE Kendra vs. Principi
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

(10)

qa)

MOTION:

DOCKET ENTRY:

Q) a Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer briefdue____.

(4) oO Ruling/Hearingon set fora

(5) Oo Status hearing[held/continued to] [set for/re-~set for]on__——sSet for at

(6) Qa Pretrial conference[held/continued to] (set for/re-set for]on__—sset fort
(7) QO Trial[set for/re-set for]on__at

(8) a [Bench/Jury trial] [Hearing] held/continued to___at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 OO FRCP41(a)(1) OO FRCP41(a)(2).

Ms [Other docket entry) ENTER MEMORANDUM OPINION: We grand defendants’ motion (Doc

17-1) for summary judgment.

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required, number of notices

Notices mailed by judge's staff.

MAY 13 2088

Notified counsel by telephone. due dockgied

Docketing to mail notices.
Mail AO 450 form.
Copy to judgp(figisrate judge.

MAY 13 9083

dare mailed notice
|_courtroom a4

ScT deputy's
initials

Date/time received in

central Clerk’s Office ailing deputy initials



memo either orally or in writing. Therefore, Kendra has not shown that she suffered
a material adverse employment action. Kendra also complains about the fact that she
did not receive worker’s compensation benefits, but we do not have jurisdiction to
review the decisions of the Illinois worker’s compensation office.
CONCLUSION
Based on the foregoing analysis we grant Defendants’ motion for summary

judgment.

Chor Baw fF Pero

Charles P. Kocoras
Chief Judge
United States District Court

Dated: __ JAY 18 2003

-11-


Kendra without an appointment. However, none of the above actions constitute a
material adverse employment action against Kendra. See Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 466 (7th Cir. 2002) (indicating that negative evaluations are
not adverse employment actions), Drake v. Minnesota Mining & Mfg. Co., 134 F.3d
878, 885 (7" Cir. 1998) (indicating that the adverse action at issue must be material);
Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (indicating that simply
because an employment action makes an employee unhappy, does not make the action
an adverse employment action); Crady v. Liberty Nat’l Bank and Trust Co. of Ind. , 993
F.2d 132, 136 (7" Cir. 1993) (stating that an adverse employment action “must be more
disruptive than a mere inconvenience or an alteration of job responsibilities.”).
Kendra also claims that she was forced to retire by Defendants. However, this
allegation is tied to her failure to accommodate claim which does not require a material
adverse employment action. Kendra admits that as of April 8, 1997, she could no
longer work at all because of some unspecified injury to her leg and that she retired
because she could not get worker’s compensation any longer and was running out of
money. Although Kendra also claims that she was forced to retire because Defendants
refused to provide her with accommodations, she admits that in 1997, Craig sent her
a memo asking Kendra to provide him with a list of duties that she believed that she

could perform within her limitations and Kendra admits that she never responded to the

-10-


perform the essential functions of the employment position that such individual holds
or desires.” 42 U.S.C. § 12111(8); Peters v. City of Mauston, 311 F.3d 835, 842, 845
(7th Cir. 2002) (holding that RA looks to standards of ADA and holding that for RA
case plaintiff must show that she is a “qualified individual with a disability”); Dvorak
y. Mostardi Platt Assocs., \nc., 289 F.3d 479, 484 (7th Cir. 2002) (stating that ADA
does not require an employer to “modify, reduce, or relocate the essential functions of
ajob to accommodate an employee.”). See also Winfrey, 259 F.3d at 614 (dealing with
accommodation claim); Kersting, 250 F.3d at 1115 (dealing with disparate treatment
claim); Peters, 311 F.3d at 845 (holding that plaintiff could not perform essential
functions of his job and holding that an accommodation that would require another
person to perform the essential functions of plaintiff's job would be unreasonable). A
two step test is used to determine if an individual is a “qualified individual with a
disability.” Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). The first issue
considered is whether the plaintiff has the education and experience necessary for the
position. Jd. If the plaintiff does have the appropriate background then we must
determine whether the plaintiff “can perform the essential functions of the position held
or desired, with or without reasonable accommodations.” Jd. (quoting 29 C.F.R. app.

§ 1630.2(m)).


reasonable accommodations in violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973 (“RA”), 29
U.S.C. § 701 et seg. Subsequent to the filing of the motion for summary judgment by
Defendants, Defendants provided Kendra with appropriate written notice of the
purpose of a summary judgment motion and an explanation of the consequences of
failing to respond to the motion. See Local Rule 56.2; Timms v. Frank, 953 F.2d 281,
285 (7th Cir. 1992).
LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c), In seeking a grant of summary judgment the moving party must identify
“those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 US.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied
by presenting specific evidence on a particular issue or by pointing out “an absence of
evidence to support the non-moving party’s case.” Id. at 325. Once the movant has

met this burden, the non-moving party cannot simply rest on the allegations in the

-3-


but continues to become inflamed at times. In August 1996, Kendra injured her back
at work. She applied for worker’s compensation and received forty-five days off work
with pay. She claims that she still has bulging and herniated discs in her back. In
August 1996, the entire staffin Kendra’s office was relocated to the an outpatient clinic
four blocks away from the VA hospital. Kendra claims that she was forced to retire in
1998 because she did not receive accommodations for her alleged disabilities and
because she suffered another unspecified injury to her leg.

Kendra acknowledged at her deposition that the cyst and back conditions make
it difficult for her to sit at a typewriter long enough to effectively transcribe dictation
and make it difficult for her to type and file documents. In addition she claimed that
she has trouble walking and thus had difficulty answering the phones at work,
delivering documents around the office, and making the necessary trips between the
clinic and hospital. She contends that the Defendants did not offer her reasonable
accommodations for her alleged disability. Kendra requested a transfer to a light duty
position. She also asked to be allowed to work at the VA hospital or in the alternative
to have reasonable access to the VA van to allow her to travel between the clinic and
the hospital.

Kendra filed a complaint pro se alleging that she was discriminated against

because ofher alleged disability and alleging that Defendants failed to provide her with

2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BARBARA J. KENDRA, )
)
Plaintiff, )
)
vs. ) 02 C 3715
)
ANTHONY J. PRINCIPI, Secretary of the )
Department of Veterans Affairs, )
) 03
Defendant. ) war 18 a
MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter is before the court on Defendant's motion for summary judgment.
For the reasons stated below we grant the motion.

BACKGROUND

Plaintiff Barbara J. Kendra (“Kendra”) worked for the Veteran’s Administration
(“VA”) as a secretary for Dr. Robert Craig (“Craig”). Kendra claims that she has
difficultly walking because, sometime prior to 1995, Kendra had the joints in her feet
removed. In July 1995, Kendra was diagnosed with a Baker’s cyst on the back of one
ofher knees. According to Kendra, when the cyst is inflamed she cannot squat, sit for

along time, kneel, or walk for extended periods of time. The cyst was treated in 1995,

Q5