inquiry is whether the employer honestly believed in the reason it offers. See Dvorak, 289 F.3d at
487 (‘it does not matter whether the employer was ultimately wrong or unfair in the determination,
nor whether a jury in the company’s shoes would have fired him.”)

In an attempt to demonstrate pretext, Morrisey again tries to shift blame for the September
2001 outage to Yeager. But as noted above, the mere fact that Yeager contributed to the September
2001 outage does not mean that HCSC did not honestly believe that Morrisey also contributed to it.
Morrisey offers nothing, other than his own interpretation of his job responsibilities, to demonstrate
that HCSC did not honestly believe that he was in part to blame for the September 2001 outage.
Arguing about the accuracy of the HCSC’s assessment of the culpability for the outage, however,
is a distraction “because the question is not whether the employer's reasons for the decision are ‘right
but whether the employer's description of its reasons is honest.'" Kariotis v. Navistar Int’‘s Transp.
Corp., 131 F.3d 672, 677 (7th Cir. 1997) (quoting Gustovich v. AT & T Communications, Inc., 972
F.2d 845, 848 (7th Cir. 1992)) (emphasis in original). Morrisey has offered no evidence that HCSC
did not honestly believe that he was in part to blame for the September 2001 outage. Moreover,
HCSC also pointed to Morrisey’s belligerent behavior, over the course of a two-year period.
Morrisey again suggests that this cannot be the reason for his discharge because he “successfully

completed” the probation.’ But the probation was for a limited period of time—it ended. After it

? Although Morrisey makes no such argument in his brief in response to Defendant's
motion for summary judgment, he attempts, throughout his 56.1(b)(3) statement of facts, to
blame his behavioral problems on his MS. For example, Morrisey suggests that the reason he
“exhibited dysfunctional behavior and used inappropriate language and was loud and vulgar. . .
[was because] he suffers from MS, a degenerative disease, that directly affects his nervous
system.” Pl. 56.1(b)(3) Statement of Facts § 24. But this is absurd. Symptoms of MS related to
speech involve a difficulty in articulation, not a proclivity to make mde, racist, and insulting
comments. See, e.g., Handbook of Multiple Sclerosis 627-28 (Stuart D. Cook, ed., 3d ed. 2001);
Blue Books of Practical Neurology: Multiple Sclerosis 2 331-32 (W. Ian McDonald & John H.

13


Burke also informed Morrisey that his interpersonal skills were very weak, that his behavior in
interacting with other team members was only marginally acceptable, and that he needed to improve
his communication skills.

Despite Burke’s admonition, Morrisey’s behavior worsened. In December 2000, he yelled
and swore at Robertson. Cutright-Stiff counseled Morrisey and urged him to improve his behavior
towards coworkers. Morrisey did not. On March 1, 2001, Morrisey sent Cutright-Stiff, Burke, and
Robertson an electronic mail (e-mail) with the subject heading “What puts the DIS in dysfunction.”
The e-mail consists of 19 lines, accusing his coworkers of plotting against him. It begins, “This is
a matter of corporate compliance. I am attempting to do the “RIGHT” thing by addressing it with
management first. [am finding this difficult due to my attitude toward ‘political correctness.”” Later,
Morrisey writes that “This is my version of what happened. It is of course subject to interpretation.
Iam interested in one view. Mine. Yesterday on our my [sic] way to a National Carrier meeting
Valetta and I passed Pat Ward. Pat suggested to Valetta that they go somewhere together. Valetta
indicated she was going to a meeting. Pat’s message back was poor soul. What a dreary thing with
such anerd, Valetta’s response indicated agreement. Much of the communication was non verbal
where over 80 percent of communication takes place.” As a result of the e-mail, Morrisey met with
Cutright-Stiffand Burke on March 5. At the meeting, Burke placed him on a Corrective Action Plan,
detailing areas in which Morrisey needed to improve and setting specific goals for him to meet.
HCSC uses Corrective Action Plans as a preliminary step prior to termination.

Morrisey’s behavior worsened despite the Corrective Action Plan and he continued to
antagonize his coworkers. On June 11, 2001, Robertson asked Morrisey about his availability the

following day for a meeting, and he told her to “shut up.” The following day, during the meeting,


demonstrate that the decision to terminate him was motivated by his disability and makes no
argument regarding the direct method, and so must proceed under the indirect, burden shifting
method described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973).

Under the burden-shifting method, a plaintiff first must establish a prima facie case of
discrimination by her employer, which creates a presumption of intentional discrimination.
McDonnell-Douglas Corp., 411 U.S. at 802-04; Bekker, 229 F.3d at 672. The burden of production
then shifts to the employer to offer a non-discriminatory reason for the employment action.
McDonnell-Douglas Corp., 411 U.S. at 802-04; Bekker, 229 F.3d at 672. Once the employer has
proffered a legitimate reason, the inference of discrimination disappears, and the plaintiff must prove
by a preponderance of the evidence that the employer's proffered reason was a pretext for intentional
discrimination. McDonnell-Douglas Corp., 411 U.S. at 802-04; Pugh v. City of Attica, Ind., 259
F.3d 619, 626-27 (7th Cir. 2001). To establish a prima facie case of discrimination, a plaintiff must
show that he was: 1) a qualified individual with a disability; 2) that his work met the legitimate
expectations of the defendant; 3) that he suffered an adverse employment action; and 4) that he was
treated differently than a similarly situated employee. Pugh, 259 F.3d at 626.

Morrisey cannot establish a prima facie case because he can not demonstrate that he was
meeting HCSC’s legitimate expectations or that similarly situated employees outside the protected
class were treated more favorably. Morever, even if Morrisey could establish a prima facie case, he
cannot demonstrate that HCSC’s reason for firing him was pretextual.

Morrisey failed to meet the legitimate expectations of HCSC. In the two years prior to his

termination, Morrisey repeatedly abused, berated, insulted, and demeaned his coworkers and


it failed, causing a four-hour outage for the customer. As a result of the outage, Fissinger requested
a written explanation of the events leading to the outage from everyone associated with the program.
Morrisey offered no explanation why he left'work without completing his investigation or without
informing his team leader (Robertson) or the customer that he had not yet verified his “bad files”
theory.

After the program outage, Cutright Sif » Burke, and Fissinger determined that Morrisey’s
failure to communicate with his coworkers ‘accompanied by his failure to improve his behavior

despite several warnings and two Corrective Action Plan’s warranted his termination. Burke and
Cutright-Stiff met with Morrisey on October 3, 2001, and informed him of his discharge.
IL. Standard of Review

Summary judgment is appropriate only when the record, viewed in the light most favorable
to the non-moving party shows that “there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party opposing summary judgment must go beyond the
pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250.(1986). The role of this Court is to determine “whether the
evidence presents sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.” Jd. at 251-52.

I. Analysis

Morrisey’s Complaint alleges that HCSC violated the ADA when it: 1) harassed him because

of his disability; 2) discharged him because of his disability; and 3) “constructively replaced [him]

by redistributing his duties. In its Motion for Summary Judgment, HCSC recasts Morrisey’s


Morrisey made another racially insensitive remark. A customer complained to Cutright-Stiff,
informing her that Morrisey had alluded to her dress and said “white is right” and that she was highly
insulted. Morrisey does not deny that a custamer was insulted by his comment, but suggests that she
misheard him because he stated “the lady i white is right.”

That afternoon, Morrisey met with Curighe suit and Burke yet again to discuss his behavior.
Morrisey was told that his behavior at the meeting and towards Robertson the day before was
unacceptable. Cutright-Stiff and Burke placed Morrisey on probation, and Burke wrote a second
Corrective Action Plan on June 15, 2001. This plari required Morrisey to refrain from engaging in
disruptive and inappropriate behavior and made it clear that he would be terminated if his behavior
did not improve. Morrisey met with Burke on July 13, 2001, for a performance evaluation not
related to the Corrective Action Plan. At that performance evaluation, Morrisey received marks of
“below-threshold” for his communication and team participation skills.

The final straw for HCSC occurred in September 2001. On September 19, 2001, the Blue
Chip division was preparing a customer’s business release, which was set for production on the
following day. On the aftemoon of September 19, the customer notified Robertson that it
experienced a discrepancy in the code. Robertson and the customer consulted with Morrisey
regarding the discrepancy, and he speculated that the problem might be that the program was using
the wrong files, rather than a problem with the program’s code. Robertson instructed Morrisey to
verify his speculation before he left that evening. Morrisey, however, left work without verifying
his theory and without informing anyone that he had failed to investigate the cause of the
discrepancy. As it turned out, the discrepancy was due to a data entry error (made by HCSC

employee Greg Yeager) in the source code, and when the program was launched on September 20,


a knowingly false representation of law constitutes dishonesty toward the tribunal.” Even a cursory
glance at Silk, or any other of several cases standing for the same proposition, would have informed
counsel that the position it took was incorrect. Instead, counsel for HCSC flaunted the rules of civil
procedure by misrepresenting the holding of Si/k. Pursuant to Fed. R. Civ. P. 11(c)(2) the Court
directs Counsel for HCSC to show cause within 30 days why it should not be sanctioned for
violating Fed. R. Civ. P. 11(b)(2).

The Court, however, need not decide whether hostile environment claims are cognizable
under the ADA because Morrisey abandoned this claim by failing to respond to Defendant’s
argument. Morrisey points to no evidence to demonstrate that he was harassed, intimidated,
ridiculed, or insulted because of his disability, much less that the harassment was so severe that it
created an abusive working environment. Accordingly, the Court GRANTS summary judgment in
favor of HCSC with regard to Morrisey’s hostile environment claim.

B. Discriminatory Discharge

The ADA prohibits employers from discriminating against "a qualified individual with a
disability because of the disability ... in regard to ... [the] terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). A plaintiff may overcome a defendant’s summary judgment
motion in an employment discrimination case by using either the direct method or the indirect
method. Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 670 (7th Cir. 2000). Under the direct
method, evidence that the employer discriminated against the employee based on his disability can
be shown with either direct or circumstantial evidence. Jd. Such evidence must demonstrate that
the employer was motivated by an illegal employment criterion. Jd.; Robin v. Espo Eng’g Corp.,200

F.3d 1081, 1089 (7th Cir. 2000). Morrisey offers no evidence, direct or circumstantial, to


Loe
‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Seige [Wilms Hibber [arte
CASE NUMBER 02 C 3150 DATE 01/05/2004
CASE Morrisey v. Health Care Service Corporation
TITLE

Tla the following box () indicate the party filing the motion, eg, plaintiff, defendant, 3rd parcy plaintiff, and (b) state briefly the
nature of the motion being preseated.]

MOTION:
Defendant’s Motion for Summary Judgment (Doc. # 10)
DOCKET ENTRY: .
(1) a Filed motion of [ use listing in “Motion” box above.]
@) a Brief in support of motion due___.
@) 0 Answer briefto motion due___. Reply to answer brief due__.
4 o Ruling/Hearingon set for at
if) a Status hearing [held/continued to] [set for/re-set for]on__——setfor_ at
© a Pretrial conference [held/continued to] [set for/re-set forlon____esetfor___—at_—
a) o Trial [set for/re-setfor]on____at :
(8) a [Bench/Jury trial] [Hearing] held/continued to sat.
9 a This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

OFRCP4(m) General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

(10) Wl [Other docket entry] . Enter Memorandum Opinion and Order. For the attached reasons, HCSC’s
Motion for Summary Judgment is GRANTED. In addition, counsel for HCSC is directed to show cause,
within thirty days from the date of this order, why it should not be sanctioned for violating Fed. R. Civ.

P. 11(6)(2).
|
(i) om [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.

No notices required.

umber of notices

GAN 07 2004

Notices mailed by judge's staf.
Notified counsel by telephone.

J | Docketing to mail notices.

Mail AO 450 form. 14uno3

Copy to judge/magistrate judge. gate Sia‘sn
courtroom S239 -

JHC deputy’s HY L~ npr AU

initials

e pe Bie ae snaling deputy initials



years Morrisey repeatedly failed to afford his coworkers simple courtesy and respect, and ultimately
HCSC tired of giving him second chances to improve his behavior. It was not obligated to
implement yet another Corrective Action Plan and hope to catch Morrisey misbehaving while on
probation in order to terminate him.

Morrisey explains the September 2001 outage was caused by a data-entry error by another
employee and therefore cannot demonstrate that he failed to meet HCSC’s legitimate expectations.
But Morrisey’s job description required him not only design programs, but also test them and correct
technical problems. It makes no difference that Yeager was also culpable for the September 2001
outage. Morrisey was instructed by his supervisor to test the program and determine definitively the
cause of an error. He failed to do so and instead only theorized (incorrectly) as to what the problem
was. As a result of Morrisey’s guesswork and failure to take the necessary steps to determine with
certainty the cause of the error, the program failed when it was launched. He did so despite
instructions from a supervisor to do otherwise, and thus plainly did not meet HCSC’s legitimate
expectations. Regardless of the spin Morrisey places on his job description, it is not the Court’s
business to decide whether HCSC expected too much from Morrisey. See Robin, 200 F.3d 1081,
1090. The Court only asks whether Morrisey met those expectations, and his disciplinary record and
failure to communicate with his coworkers regarding the September 2001 outage clearly demonstrate
that he did not.

Even if Morrisey could show that he was meeting the legitimate expectations of HCSC, he
cannot prove that he was treated differently than a similarly situated employee. Morrisey offers
Yeager, who made the data entry error which was the source of the September 2001 outage, as a

comparator. Morrisey argues that Yeager was not discharged, and thus was treated more favorably.

11


supervisors. When assigned tasks, he told his supervisors to “shut up.” He made racist remarks to
coworkers. Customers complained to HCSC that he made racist remarks. He sent incendiary emails
to his supervisors claiming that his coworkers were plotting against him. He refused to communicate
with his coworkers, which often led to program outages, He used loud, vulgar language in public
work spaces. Moreover, HCSC gave Morrisey multiple opportunities to correct his rude, insensitive,
and obnoxious behavior. In October 2000, Burke informed Morrisey during a performance review
that his behavior needed to improve before resorting to HCSC’s disciplinary procedure of
implementing a Corrective Action Plan. When Burke’s efforts failed to help Morrisey improve his
behavior, HCSC implemented not one but two Corrective Action Plans, detailing specific goals for
Morrisey to achieve regarding his behavior. Despite HCSC’s efforts, Morrisey’s behavior only got
worse. And in September 2001, his inability to communicate with his coworkers and supervisors
caused a four-hour outage for a customer. Morissey’s two-year history of belligerent, anti-social,
and abusive behavior more than establishes that he failed to meet HCSC’s legitimate expectations.

Morrisey states, without factual support, that despite all of his behavioral problems, that he
“was also performing his duties to the reasonable expectation of the Defendant.” According to
Morrisey, he “successfully completed” the Corrective Action Plans and therefore demonstrated he
was meeting his employer’s expectations. (P1.’s Resp. to Def.’s Mot. for Summ. J. at 6-7). But the
mere fact that Morrisey’s probationary period ended does not mean that he was meeting HCSC’s
legitimate expectations. Indeed, the contrary is ttue—Morrisey’s behavior continued to worsen after
the Corrective Action Plans ended. HCSC expected that Morrisey treat his coworkers with respect
and that he communicate with them in order to complete his job. Indeed, HCSC’s Employee Code

requires its employees to treat each other with “honesty, dignity, and respect.” But for more than two

10


confusing claims as: 1) a hostile environment claim; 2) a discriminatory discharge claim; and 3) a
failure to accommodate claim. Morrisey’s response makes it clear that he did intend to raise a failure
to accommodate claim (and not a constructive discharge claim).
A. Hostile Environment

HCSC claims it is entitled to summary judgment on Morrisey’s hostile environment claim
because “the Seventh Circuit has stated . . . that a claim for hostile environment harassment is not
cognizable under the ADA.” (Def. Mem. in Support of Summ. J. at 14). In support the HCSC
points to Silk v. City of Chicago, 194 F.3d 788 (7th Cir. 1999). But Si/k stands for no such
proposition. Instead, Silk expressly holds open the possibility that hostile environment claims are
cognizable under the ADA. Silk, 194 F.3d 804 (“We shall proceed on the assumption that a hostile
work environment claim is cognizable under the ADA.”); see also E.E.0.C. v. Sears, Roebuck &
Co., 233 F.3d 432, 440 (7th Cir. 2000) (proceeding under assumption that hostile work environment
claim is cognizable under the ADA, but not affirmatively resolving the issue); Vollmert v. Wisconsin
Department of Transportation, 197 F.3d 293, 297 (7th Cir.1999) (same). HCSC’s blatant
misrepresentation of Seventh Circuit precedent arguably runs afoul of Rule 11, which among other
things requires that “the claims, defenses, and other legal contentions [in motions submitted to the
court] are warranted by existing law or by a nonfrivolous argument for the extension, modification,
or reversal of existing law or the establishment of new law.” Fed. R. Civ. P. 11(b)(2). HCSC makes
no argument that the Court should adopt the rule that hostile environment claims are not cognizable
under the ADA. Moreover, Local Rule 83.53.3(a)(1) prohibits lawyers from making “a statement
of material fact or law to a tribunal which the lawyer knows or reasonably should know is false.”

The Committee Comment to Local Rule 83.53.3 informs attorneys that “[I]egal argument based on


outage. Another time, Morrisey made changes in a code after the customer had already approved
the original code. But Morrisey’s failure to communicate shortly became the least of his behavioral
problems. He began to engage in vulgar and disruptive behavior. Morrisey would use profanity and
other inappropriate language at work in public work areas. Morrisey also was belligerent towards
Robertson, his team leader. For example, when Robertson inquired into Morrisey’s progress on an
assignment, he responded by yelling and cutsing at her. Additionally, Robertson, who is African
American, complained that Morrisey made ahtagonizing, racially-charged remarks to her, claiming
that he informed her that “white is right.” When Burke confronted Morrisey regarding the statement,
Morrisey, rather than apologize for or deny making the remarks, instead explained that he grew up
in a town like “Mayberry, R.F.D., where he was never taught to hate.”

Throughout 2000, Burke and Cutright-Stiff repeatedly counseled Morrisey regarding his
belligerent, uncooperative, insensitive, and rude behavior and informed him that his behavior needed
to improve. Morrisey informed his supervisors during these meetings that his stress was to blame
for his unacceptable behavior. By Morrisey’s 2000 performance review (conducted in October
2000), his belligerence had infected his relationships with coworkers, management, and even
customers. Burke, Cutright-Stiff, and Fissinger discussed whether they should place Morrisey on
probation at that time, but Burke stated that he wanted to continue work with Morrisey on improving
his behavior, so they opted not to place him on probation. Instead, at the performance review, Burke
informed Morrisey that HCSC had received numerous complaints about his behavior from coworkers

and customers and warned him that unless his behavior improved he would be placed on probation.


ended, Morrisey’s behavior did not improve, and nothing in the record suggests that HCSC was
satisfied with Morrisey’s interpersonal skills at the time of his discharge. the record clearly shows
that HCSC believed the reasons it proffered for Morrisey’s termination.

Morrisey can establish neither a prima facie case of discrimination, nor prove that HCSC’s
proffered reasons for his discharge were pretextual. Accordingly, the Court GRANTS summary
judgment in favor ‘of HCSC with regards to Morrisey’s claim that he was discharged because of his
disability.

Cc. Failure to Accommodate

Monrisey’s final claim is that HCSC failed to accommodate his disability. According to
Morrisey, working more than eight hours a day, which caused him stress and exacerbated his MS.
Under the ADA an employer must make “reasonable accommodations to the known
physical...limitations of an otherwise qualified individual with a disability...” 42. U.S.C. §
12112(b)(5)(A) (2000). HCSC argues, among other things, that Morrisey is not disabled within the
meaning of the ADA and therefore it was not required to give him an accommodation. The Court,
however, need not answer this question for two reasons: (1) Morrisey never made his need for an
accommodation known to HCSC; and (2) even if Morrisey’s occasional complaints regarding his
condition could be considered as requests for accommodations, HCSC did accommodate him.

Morrisey admits that he never explicitly asked HCSC for an accommodation, even though
HCSC had a formal procedure to allow employees to make such requests. But more importantly,
Morrisey himself admits that he never felt that he needed any accommodation. In his deposition,

Morrisey admits that (1) he never felt he was limited in his ability to do his job and (2) that he never

Noseworthy eds., 2003).
14


IV. Conclusion
For the foregoing reasons, HCSC’s Motion for Summary Judgment on all its claims is
GRANTED. In addition, counsel for HCSC is directed to show cause, within thirty days, why it

should not be sanctioned for violating Fed. R. Civ. P. 11(b)(2).

IT IS SO ORDERED.
UL o/ of VG f HALE )
Dated The Honogbid William J. Hibbler

United States District Court

16


was Winona Cutright-Stiff and his senior manager was Eileen Fissinger. In October 1999, Filmore
Burke became Morrisey’s immediate supervisor and Morrisey also began working directly with
Valetta Robertson, one of two “team leaders” under Burke.

Morrisey had been diagnosed with multiple sclerosis (MS) in 1993, three years before he
began working with HCSC. Morrisey’s MS affects his ability to walk and he needs the assistance
ofa cane to walk. Morrisey’s MS also limits his ability to use his lefthand. Even though Morrisey’s
MS limits his ability to walk and use his left hand, he can still participate in sports that do not require
balance and adequately perform office tasks, such as typing, that his job requires. Despite the fact
that he had already been diagnosed with MS, Morrisey informed HCSC on his application that he
was not disabled and had no disability that would require an accommodation. Indeed, Morrisey
never informed Burke, or any of his other supervisors, that he suffered from MS. Although Burke
was aware that Morrisey used a cane to assist him in walking, Morrisey never told anyone at HCSC
that he was limited in doing his job because of his MS. Instead, he told Burke that working more
than eight hours per day was difficult for him (though he did not indicate that it was because of his
Ms).!

In late 1999, Morrisey’s behavior at HCSC became problematic. For example, Morrisey
refused to consult and communicate with coworkers. In one instance, Morrisey inserted an

unauthorized code into a program, without informing coworkers, ultimately causing a program

"In describing the limits placed upon him by his MS, Morrissey relies heavily ona
“Telephone Dictation Report” of Dr. Daniel Wynn. As HCSC notes, this evidence is
inadmissible because Morrisey has failed to authenticate the document or provide a foundation
for its admissibility. Indeed, the report is not even signed. The Court shall not rely on it for the
purposes of resolving this motion. See Bombard v. Fort Wayn Newspapers, Inc., 92 F.3d 560 ,
562 (7th Cir. 1992).


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ROBERT MORRISEY, )
)
Plaintiff, )
) No. 02 C 3150
v. )
} The Honorable William J. Hibbler
HEALTH CARE SERVICE CORPORATION ) ~
A Mutual Legal Reserve Company, ) be
) wee
Defendant, ) A 9g > may
er
MEI NDUM OPINION RDER 4

Robert Morrisey worked for Health Care Service Corporation (HCSC) as a Programmer
Analyst in the Blue Chip division. Morrisey was terminated on October 3, 2001 and then sued
HCSC, alleging that it violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111, et.
seq. when it terminated him and also when it failed to accommodate his disability. HCSC moves
for summary judgment.

I. Factual Background

HCSC is a Mutual Reserve Legal Company that writes and administers health and dental
insurance business throughout the states of Illinois and Texas. In 1996, HCSC hired Robert
Morrisey to be a Programmer Analyst and assigned him to the Eligibility area within HCSC’s Blue
Chip Division. In 1997, HCSC promoted Morrisey to the position of Senior Programmer Analyst
within the Eligibility group. As a Senior Programmer Analyst, Morrisey designed and programmed
computer systems, wrote programs, tested and debugged programs, and resolved technical problems

related to those programs. When Morrisey began at HCSC, his manger and immediate supervisor

po



But Yeager was not a similarly situated employee. To show that another employee is similarly
situated, a plaintiff must show that there is someone who is comparable to him in all material
respects, Patterson v, Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). Morrisey bad an
extensive disciplinary history consisting of numerous verbal warnings and two Corrective Action
Plans. Morrisey submits no evidence that Yeager had ever been disciplined. Employees who lack
similar disciplinary history are not similarly situated because the employer’s treatment of them can
distinguished because of that history. See Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000); see
also Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 580 (7th Cir. 2003) (similarly
situated employees must engage in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer's treatment of them). Morrisey
points to no other potential comparators and so his claim also fails because he cannot identify a
similarly situated employee outside the protected class who was treated more favorably.

Not only has Morrisey failed to establish a prima facie case of discrimination, but he also can
not demonstrate that HCSC’s reasons for discharging him were pretextual. Once HCSC has
presented a legitimate, non-discriminatory reason for firing Morrisey, he must prove by a
preponderance of the evidence that the reason for his termination was pretextual. Dvorak v.
Mostardi Platt Assocs. 289 F.3d 479, 485 (7th Cir. 2002). To prove that HCSC’s reasons were
pretextual, Morrisey would have to offer evidence sufficient to demonstrate that HCSC’s reason for
discharging him was false—that it had no basis in fact, did not actually motivate the decision, or was
insufficient to support the decision. Grayson v. O'Neill, 308 F.3d 808, 820 (7th Cir. 2002). In
determining whether an employer’s proffered reason for an employment action was pretextual, the

court is not concerned with whether the employer made a bad decision, but rather the focus of the

12


told anyone at HCSC that he was limited in his ability to do his job. (Def. L.R. 56.1(a) Statement
of Facts (Def. Statement), Ex. C (Morrisey Dep.) at 205-06). As a result, HCSC did not have notice
that Morrisey needed an accommodation. See Jovanovic v. In-Sink-Erator Div. of Emerson Elec.
Co., 201 F.3d 894, 898-99 (7th Cir. 2000). It is incumbent upon the ADA plaintiff to assert not only
a disability, but also any limitation resulting there from. Jd, Morrisey claims that on ten to twelve
occasions he requested that HCSC not require him to work more than eight hours per day or allow
him to leave work because he was in pain resulting from his MS. But isolated and sporadic requests
to go home early or work a shorter day, particularly when such requests make no mention of
Morrisey’s MS, cannot be construed to be requests for accommodations. Even if these requests
could be construed as requests for accommodations, the facts reveal that HCSC granted Morrisey’s
requests. In his deposition, Morrisey describes several instances when he approached a supervisor
because he was “just physically tired, and . . . incapable of continuing to work,” and each time his
request was granted. (Def. Statement, Ex. C (Morrisey Dep.) at 185-187). As for working no more
than eight hours per day, Morrisey identifies only one instance, in December 2000, during which he
had to work more than eight hours per day, and after he talked with Burke regarding the incident,
Morrisey points to no other incident for which he was required to work for more than eight hours.
(Def. Statement, Ex. C (Morrisey Dep.) at 155-159; 185-187). The ADA requires that employers
make reasonable accommodations to known physical limitations. To the extent that Morrisey
himself believed that he did not need any accommodation and to the extent that HCSC willingly
allowed Morrisey to leave work whenever he expressed discomfort caused by his MS, the Court
finds that his failure to accommodate claim is without merit and GRANTS summary judgment in

favor of HCSC.

15