Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994). Itis undisputed Mays, an African-American,

is a member of a protected class, she performed her job satisfactorily, and her transfer to the SPD

department was an adverse job action. VA asserts Mays cannot establish similarly situated

non-African-American nurses were treated more favorably and VA’s decision to transfer was
pretextual.

Between August and September 1998, Mays contends Westside failed to reassign three non-
African-American nurses after accusations of patient abuse. Pl. 56.1 Facts at { 16. Mays asserts
those three nurses are similarly-situated employees. “Different employment decisions, concerning
different employees made by different supervisors, are seldom sufficiently comparable to establish
a prima facie case of discrimination[.]” Radue v. Kimberly-Clark, 219 F.3d 612, 618 (7th Cir. 2000).
Mays does not advance evidence Sonya Ruiz supervised the three non-African-American nurses.
In addition, Mays does not demonstrate those nurses faced similar allegations of patient abuse. Nor
does Mays establish the nurses possessed similar qualifications. Jd. Without more, Mays cannot
demonstrate she was similarly-situated to the three non-A frican-American nurses.

Moreover, Mays does not advance persuasive evidence of pretext. VA has asserted a
legitimate, non-discrimination reason for the transfer. It is undisputed Mays was under investigation
for patient abuse. Pl. 56.1 facts at | 10. VA demonstrates Mays was transferred to the SPD
department pending the outcome ofa patient abuse investigation. /d. at ] 11. Mays can show pretext
"either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer's proffered explanation is unworthy of
credence." Burdine, 450 U.S. at 256. In response, Mays asserts Westside does not have a written

policy on the transfer of nurses facing accusations of patient abuse. However, the lack of a written


Moreover, the interactive process did not breakdown. An employer's accommodation is
reasonable if the employer has made "a good faith effort to assess the employee's needs and to
respond to them." Feliberty, 98 F.3d at 280. When Mays was offered the program support clerk
position, she expressed concern over her compensation plan. Def. 56.1 Facts at § 15. Westside
informed Mays her salary would remain the same because she was entitled to compensation for loss
wages. Id. at 1 17. Mays objected to the offer because she preferred a nursing position. Jd. at { 18.
Westside responded her disability precluded her from performing nursing duties, and allowing her
to work in patient care would endanger the health of Westside patients. Jd. Mays later accepted the
clerical position. The interactive process does not require VA to change its decision on Mays’
appropriate accommodation. McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir.
1997) (employer need only provide reasonable accommodation, not necessarily what the employee
requests). Mays fails to raise a genuine issue VA did not reasonably accommodate her disability.
Accordingly, summary judgment must be granted on Count IV

Finally, in Count V, Mays claims VA rejected her applications for the four identified vacant
nursing positions because of her disability. As noted above, Mays fails to establish she could
perform the essential functions of those positions with her disability. Accordingly, summary
judgment must be granted on Count V.

CONCLUSION

The motion for summary judgment is granted.

November 26, 2001 ENTER:

United States District Judge


a host of purported retaliatory actions: Ruiz scolded Mays occasionally; Mays was issued a letter of
reprimand; Westside withheld the results of the patient abuse investigation; and Westside failed to
engage in the interactive process to determine a reasonable accommodation. Compl. at § 28. None
of those acts rise to the level of an adverse job action. A letter of reprimand is not an adverse job
action. Krause v. City of LaCrosse, 246 F.3d 995, 1000 (7th Cir. 2001). The remaining acts did not
result in changes in the terms and conditions of Mays’ employment. Instead, those acts are mere
inconveniences and annoyances in her employment. See Flaherty v. Gas Research Institute, 31 F.3d
451, 456 (7th Cir. 1999) (no change in salary, benefits and responsibilities required a finding of no
materially adverse job action).

In addition, Mays asserts Westside reassigned her to the SPD department in retaliation for
her EEOC discrimination charge. Compl. at 28. But Mays advances no evidence of a casual link
between her transfer and the filing of her EEOC complaint. Nor does Mays offer evidence that
Westside’s acts were a pretext for retaliation. VA’s legitimate reason for the transfer — a pending
patient abuse investigation — remains unrebutted. Mays fails to raise a genuine issue for trial.
Accordingly, summary judgment must be granted on Count II.

Til. Disability Discrimination (Count IIJ-V)

Mays contends VA failed to engage in the interactive process, and neglected to provide her
with a reasonable accommodation. To establish a failure to accommodate claim under the
Rehabilitation Act, Mays must show: (1) she was a disabled person as defined by the statute; (2) VA
knew about her disability; and (3) she was a qualified individual who, with or without reasonable
accommodation, could perform the essential functions of her job. Winfrey v. City of Chicago, 259

F.3d 610, 614 (7th Cir. 2001). The burden then shifts to VA to demonstrate it provided a reasonable


policy does not suggest VA’s proffered reason is false. See Anderson, 13 F.3d at 1124. Indeed,
Westside transferred other hospital employees pending outcome of investigations between 1998 and
2000, including a white male nurse. Pl. 56.1 Facts, Ex. 3; Reply Br. at 5. Without more, Mays
cannot establish VA’s reason for her transfer is pretextual. Accordingly, Mays fails to raise a
genuine issue for trial on her race discrimination claim. Summary judgment must be granted on
Count I.
Hl. Title VII retaliation (Count I)

Mays contends she suffered retaliation after she filed an EEOC charge against VA on June
1, 1999. Under the burden-shifting approach, Mays can establish a prima facie case of retaliation
by demonstrating: (1) she engaged in statutorily protected expression; (2) she suffered an adverse
job action; and (3) there is a casual link between the protected expression and the adverse action.
Johnson v. University of Wisconsin, 70 F.3d 469, 479 (7th Cir. 1995),

An adverse action is defined broadly, but “not everything that makes an employee unhappy
is an actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). A
material adverse change in the terms and conditions of employment must be more disruptive than
amere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat’l Bank & Trust
Co., 993 F.2d 132, 136 (7th Cir. 1993).

At the outset, the court notes Mays failed to respond to VA’s motion for summary judgment
on her retaliation claim. It is not the court's function "to scour the record in search of evidence to
defeat a motion for summary judgment; we rely on the nonmoving party to identify with reasonable
particularity the evidence upon which [s]he relies." Bombard v. Fort Wayne Newspapers, Inc., 92

F.3d 560, 562 (7th Cir. 1996). Nevertheless, Mays retaliation claim fails on the merits. Mays asserts


positions. Mays bears the burden of demonstrating a vacant position existed and she was qualified
for that position. Pond v. Michelin North America, Inc.,183 F.3d 592, 596-97 (7th Cir. 1999). Mays
identifies two performance improvement nursing positions that were available in June and November
1999. PI. 56.1 Facts, Ex. 11-12. Mays points to two vacant utilization review nurse positions in
January 2000. id. at Ex. 13. However, Mays does not demonstrate she is qualified to perform those
positions with her disability. Mays was restricted to carrying less than ten pounds, working below
shoulder level, and prohibited from lifting patients. Def 56.1 Facts at § 14. Dr. Romano, Mays’
physician, restricted her to sedentary work. Def. 56.1 Facts, Ex. F. Mays does not advance evidence
of those positions’ job requirements. Mays does not offer evidence she could perform those jobs
with her training and skill. Nor does she offer evidence to establish she could perform those jobs
with her disability. Mays unsupported assertions that she could perform the nursing positions cannot
defeat summary judgment. PI. Resp. Br. at 10-11; See Haywood v. North American Van Lines, Inc.,
121 F.3d 1066, 1071 (7th Cir. 1997) (conclusory allegations and self-serving statements do not
suffice); Ozlowski v. Henderson, No. 99 C 756, 1999 WL 1212195, at *4 (N.D. Ill. Dec. 16, 1999)
(plaintiff must offer evidence to show she was qualified for a vacant position).

VA demonstrates Mays was provided a reasonable accommodation. From J: anuary 1998 to
April 1999, VA created a light-duty position to accommodate her injury. Mays was expressly
informed that position was temporary. In September 1999, VA identified twenty-one vacant
positions to accommodate Mays’ disability. Pl. 56.1 Facts, Ex. 16. VA determined Mays’ disability
allowed her to work at Westside as a program support clerk. Id; Def. 56.1 Facts at | 14. While
Mays may prefer a different position, VA “need only provide some reasonable accommodation.”

Schmidt v. Methodist Hosp., 89 F.3d 342, 244-45 (7th Cir. 1996).


4 Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
oor Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 01C 1418 DATE 11/26/2001
CASE MAXCENE MAYS vs. ANTHONY PRINCIPI
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
2) oa Brief in support of motion due __
(3) a Answer brief to motion due _- Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on ___set for at .
7) Oo Trial[set for/re-set for] on wat
(8) Oo [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) (General Rule21 [FRCP41(a)(1) 1 FRCP4i(a)(2).
ao) of [Other docket entry]  Defendant’s motion for summary judgment [24-1] is granted. ENTER
MEMORANDUM OPINION AND ORDER.
al) {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

NOV 28 20

date docketed

cisae! 11/26/2008

V | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices. ace

v Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom ui date usted notice

SB deputy’s
initials

ce

Date/time recéived in

central Clerk’s Office mailing deputy initials



accommodation. See Feliberty v. Kemper Corp., 98 F.3d 274, 280 (7th Cir. 1996).

In Count III, Mays contends VA violated the Rehabilitation Act by failing to engage in the
interactive process. Compl. at {J 30-32. "[A] plaintiff cannot base a reasonable accommodation
claim solely on the allegation that the employer failed to engage in an interactive process." Rehling
v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000). Instead, “a plaintiff must allege that the
employer's failure to engage in an interactive process resulted in a failure to identify an appropriate
accommodation for the qualified individual." /d.; Hawkins v. West, No. 98 C 2524, 2000 WL
1741889, at *3 (N.D. Il. Nov. 20, 2000). As a matter of law, Count III does not assert a violation
of the Rehabilitation Act. Accordingly, summary judgment must be granted on Count III.

InCount IV, Maysclaims VA failed to provide her reasonable accommodation. A reasonable
accommodation under the Rehabilitation Act may include reassignment to a vacant position. Gile
v. United Airlines, Inc., 95 F.3d 492, 496-98 (7th Cir. 1996). But an employer is not required to
create a new position for the disabled employee. Jd. The accommodation must not impose an "undue
hardship" on the employer. 42 U.S.C. § 12112(b)(5)(A). "An employer is not obligated to provide
an employee the accommodation [she] requests or prefers, the employer need only provide some
reasonable accommodation." Gile, 95 F.3d at 499. The parties agree Mays could not perform the
essential functions of a full-time floor nurse position with or without reasonable accommodation.
PI. 56.1 Facts at | 51; Gile, 95 F.3d at 498 (reassignment appropriate when plaintiff cannot perform
the essential functions of her currentjob). Mays concedes Westside does not have a permanent light-
duty nursing position. Gile, 95 F.3d at 497 (creation of a new position is not a reasonable
accommodation).

Instead, Mays asserts VA should have assigned her to vacant, non-patient care nursing


record as a whole and draws all reasonable inferences in the light most favorable to the nonmoving
party. Bay v. Cassens Transp., Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material
fact exists when the evidence is sufficient to support a reasonable jury verdict in favor of 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). If the moving party meets this burden, the
nonmovant must then respond by setting forth specific facts which demonstrate the existence of a
genuine issue for trial. Fed. R. Civ. P. 56(e).

Il. __ Title VII Disparate Treatment claim (Count I)

Mays claims she was reassigned to the SPD department because she is African-American.
To establish a claim for race discrimination under Title VII, Mays must offer either direct evidence
of discriminatory intent or show disparate treatment through the indirect method under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,
347 (7th Cir. 1997). Mays offers no direct proof of race discrimination, but proceeds under the
McDonnell Douglas burden-shifting method.

Under the burden-shifting approach, Mays must establish she belongs to a protected class;
she performed her job satisfactorily; she suffered an adverse job action; and VA treated
similarly-situated non-African American nurses more favorably. See Lenoir v. Roll Coater, Inc., 13
F.3d 1130, 1132 (7th Cir. 1994). Once she makes that showing, VA must articulate a legitimate,
nondiscriminatory reason for its actions. Lenoir, 13 F.3d at 1133. The burden shifts to Mays to
demonstrate VA’s proffered reason was a pretext for discrimination. Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981); Plair, 105 F.3d at 348. Mays must show a reasonable fact

finder could infer VA did not honestly believe the reason for its actions. See Anderson v. Baxter


On March 26, 1999, Dr. Julie Wehner, a physician from the Office of Workers Compensation
Program, determined Mays’ injuries were permanent. Mays continued to work in her temporary
position at Westside. On April 16, 1999, a Westside patient issued a complaint against Mays. The
patient alleged Mays was rude, and jammed a thermometer in his mouth. Shortly thereafter, Darlene
Modelski, Westside’s Associate Chief Nurse, reassigned Mays to a non-nursing position in the
supply, processing and distribution (“SPD”) department pending an investigation. On July 12, 1999,
VA determined there was insufficient evidence of patient abuse. Mays was not informed of the
investigation results.

On September 15, 1999, VA offered Maysa vacant permanent position as a program support
clerk to accommodate her injury. Dr. Anthony Romano, Mays’ physician, and Dr. Wehner
determined Mays’ limitations. Mays was restricted from carrying more than ten pounds, she could
not work above shoulder level, and she was prohibited from lifting patients. Mays initially refused
the clerical position because it was a non-nursing job. However, Westside did not have a permanent
light-duty nursing position. On November 16, 1999, Mays accepted the program support clerk job.

DISCUSSION
I. Standard of Review

Summary judgment is proper when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. National Human Res. Comm.,
218 F.3d 719, 723 (7th Cir. 2000). Once a moving party has met its burden, the non-movant must
go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.

R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The court considers the


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

EASTERN DIVISION
MAXCENE MAYS )
Plaintiff, } No. 01 C 1418
v. } Suzanne B. Conlon, Judge
ANTHONY PRINCIPI, }
SECRETARY OF VETERAN AFFAIRS )

Defendant.

DOCKETED

NOV 2 8 2001

MEMORANDUM OPINION AND ORDER

Maxcene Mays sues her employer Department of Veteran Affairs (“VA”) under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000¢ ef seq. and the Rehabilitation Act of 1973, 29
US.C. § 701 et seq, for race discrimination (Count J), retaliation (Count II), and disability
discrimination (Count IIJ-V). VA moves for summary judgment.

BACKGROUND

All facts are undisputed unless otherwise noted. Maxcene Mays, an African-American
woman, worked as a registered nurse at the Westside VA Hospital (“Westside”) from 1992 to 1999.
Mays was employed as a staff nurse in the patient care department. On December 9, 1997, Mays
injured her neck and shoulder when she helped four nurses lift an obese patient. For six weeks,
Mays was unable to return to work. She received compensation during her leave under the Federal
Workers Compensation Program. On January 26, 1998, Mays returned to Westside. Westside
created a light-duty nursing position to accommodate her injury. Mays was informed that position

was temporary.