B. Filar’s Substantive Claims

i. The ADA

The ADA forbids employers to discriminate against any “qualified individual with a
disability because of the disability.” 42 U.S.C. § 12112(a); see Buie v. Quad/Graphics, Inc., 366
F.3d 496, 503 (7th Cir. 2004). The term “qualified individual with a disability” is defined as “an
individual with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” 42 U.S.C.
§ 12111(8); sce also Byrne v. Avon Products, Inc., 328 F.3d 379, 380 (7th Cir. 2003). The
plaintiff bears the burden of proof on the issue of whether he is a “qualified individual” under the

ADA, See E.E.O.C. v. Yellow Freight System, Inc., 253 F.3d 943, 948 (7th Cir. 2001); Nowak

v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998); see also Arbaugh v. Y&H Corp., 126
S$. Ct, 1235, 1244 (U.S. 2006).

Under the McDonnell Douglas method, a female plaintiff who alleges age discrimination
must establish four elements: (1) that she is a member of a protected class; (2) that she is
performing her job satisfactorily; (3) that she suffered an adverse employment action; and (4) that
she was treated less favorably than at least one male colleague. Farrell v. Butler Univ,, 421 F.3d
609, 613 (7th Cir. 2005) (citing Lim v. Trus. of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002)).

Once the plaintiff has established a prima facie case, the burden shifts to the defendant to
provide a Icgitimatc, non discriminatory reason for the decision. Id. If the defendant satisfies its
burden, the burden shifts back to the plaintiff to show that the defendant’s explanation was
pretextual. Id. ‘To establish pretext, the plaintiff may show that the reasons given by the

employer are factually baseless, were not the actual motivation for the decision, or were


by individuals with disabilities.” E.E.O.C. v. Sears Rocbuck & Co., 417 F.3d 789, 803 (7th Cir.

2005); § 12112(b)(5)(A). It is up to the cmployer to “choose a reasonable accommodation; an
employer is not required to provide the particular accommodation that an employee requests.”
Jd. (quoting Jay v. Intermet Wagner, Inc., 233 F.3d 1014, 1017 (7th Cir, 2000)). At minimum,
“the employer is obliged to provide an accommodation that effectively accommodates the

disabled employee’s limitations.” Id.

In order for Filar to establish a claim for failure to accommodate, she 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. Id. With respect to the third
clement, “the ‘ADA requires that employer and employee engage in an interactive process to

determine a reasonable accommodation.” Id.

Here, Tilar requested that she be assigned to a school with a minimum walking distance
{o public transportation. However, the ADA does not require that an employer furnish an
employee with means of transportation to and from work, nor place an employee at a job location
near public transportation. “With respect to the major life activity of working, the term
substantially limits means significantly restricting the ability to perform either a class of jobs or a
broad range of jobs... .” 29 C.F.R, § 1630,2(0)(1)(ii).. Therefore, activities that fall outside the
scope of employment, such as commuting to and from a job location is outside the responsibility

of an employer under the ADA.

The court “ordinarily looks first to whether there is a genuine issue of material fact

regarding the availability of a reasonable accommodation, and if it is clear that no reasonable

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provided the employer considered these latter factors in making the personnel decision.’” Bio,
424 F.3d at 596 (quoting Ajayi v. Aramark Bus. Sorvs., Inc., 336 F.3d 520, 532 (7th Cir. 2003)).

The Seventh Circuit indicates that two employees are similarly situated if “they are directly

comparable to [each other] in all material respects.” Walker, 410 F.3d al 396 (quoting Patterson,

281 F.3d at 680).

Viewing all of these factors together, Filar cannot establish that any of her co-workers are
similarly situated to her for purposes of the ADA, and therefore her case is doomed. See Stewart,

207 F.3d at 376; scc also Racicot v. Wal-Mat Stores, Inc., 414 T.3d 675, 678 (7th Cir, 2005).

Filar compares herself’ to other teachers who were not classified as FI'Bs. Specifically,
Filar claims that Piotr Monaco (“Monaco”), Tadeusz Krason (“Krason”), Helena Danielska
(“Danielska”) and Czeslawa Kolak (“Kolak”) were similarly situated to herself, yet did not
receive any adverse employment action. However, according to the Board rules, “appointed
teachers do not compete with FTBs in terms of seniorily.” Def.’s Stmt. of Mat. Facts, {[ 9; Ex. D.
An appointed teacher who has been with the school for one day has priority over an FTB who has
been teaching for any number of years. Therefore, appointed teachers are not “directly
comparable to the plaintiff in all material aspects” to FTBs such as Filar. See Bio, 424 F.3d at

596. Asa result, Filar cannot satisfy the similarly situated prong of her prima facie casc.
6. Legitimate, Non-Discriminatory Reason for Filar’s Displacement

Even though Filar cannot satisfy the similarly situated prong of her prima facie case, with
an abundance of caution, the court will proceed with the remainder of the indirect burden shifting

analysis. See Gore, 416 F.3d at 592; Ballance, 424 F.3d at 617. “An employer need only


insufficient to motivate the decision. Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir, 2000).
The failure to establish any one of the initial four elements defeats a plaintiff's discrimination
claim. Id. With these principles in mind, we turn to the Board’s Motion for Summary Judgment.
2, Filar’s ADA Claims
Filar produces no direct evidence that the Board discriminated against her on the basis of
her age, by removing her from the F'TB list of teachers. Filar even admits in her deposition that
Garvey, nor any Board member made comments to her in regards to hear age. See Filar Dep., at

101. As aresult, Filar must proceed under the indirect method of proof.

The Board concedes that Filar belongs to a protected class, performed her job
satisfactorily, and was subject to an adverse employment action as a result of her removal from
an FB teacher to a day-to-day substitute in the cadre. See Def.'s Mem. in Support of Summ. J.,
at 7,n.4. Therefore, the only issuc remaining is whcther Filar can cstablish that similarly situated

employees were treated more favorably than herself.
a. Similarly Situated Employees

A similarly situated employee “is onc who is ‘directly comparable to the plaintiff in all
matcrial aspects.’” Bio, 424 F.3d ai 596 (quoting Patterson v. Avery Dennison Corp., 281 F.3d

676, 680 (7th Cir. 2002)); see Walker, 410 F.3d at 396 (quoting Raduc v. Kimberly-Clark Corp.,

219 F.3d 612, 617-18 (7th Cir. 2000)). To determine whether two employees are similarly
situated, the court must “look at all relevant factors, including whether the employees “(i) held
the same job description, (ii) were subject to the same standards, (iii) were subordinate to the

same supervisor, and (iv) had comparable expericnce, education, and other qualifications—



Dist. No. 1, 147 F.3d 535, 541 (7th Cir. 1998). Pretext does not mean simply a mistake, but
instead a lie, “specifically a phony reason for some action.” Id. (quoting Johnson v. City of Fort

Wayne, 91 F.3d 922, 931 (7th Cir. 1996)). The only concern is whether the legitimate reason

provided by the employer is in fact an honest one. See Stewart, 207 F.3d at 378.

Filar submits no evidence to suggest that the Board’s proffered reasons for her
termination was phoney, dishonest, or a lie. See Crim, 147 F.3d al 541. The Board has provided
evidence, in the form of depositions and numbers of declining student enrollment, to justify its
decision to displace Filar from an F'TB to the cadre of day-to-day substitute teachers. Filar
merely relies on her own personal belief that the Board removed her from the FTB list due to her
age. However, the court finds this argument unpersuasive, as Danielska was 59 at the time Filar
was terminated, and Alksnin was 61, while Filar was 69 years old at the time the suit was filed.
Moreover, the oldest teacher on stalf, Richard Lysakowski (“Lyskowski”) was seven years older
than Filar, yet was not displaced. In all, Filar is unable to demonstrate that the Board’s

legitimate, non-discriminatory reason for her displacement was based on her age, and as a result,

her ADA claim must fail.
3. Filar’s Accommodation Claim

The ADA provides that employers must make “reasonable accommodations” for a
disabled employee’s limitations, unless the employer can demonstrate that such an
accommodation would impose an “unduc hardship.” 42 U.S.C. § 12112(b)(5)(A); Timmons v.
General Motors Corp., 419 F.3d 1122, 1125 (7th Cir. 2006). A reasonable accommodation under

the ADA includes “making existing facilities used by employees readily accessible to and usable


TN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VALERIE T. FILAR,

Plaintiff,

v. Case No. 04 C 4679

CHICAGO SCHOOL REFORM BOARD HONORABLE CHARLES R, NORGLE
OF TRUSTEES,

Defendant.
OPINION AND ORDER

CHARLES R. NORGLE, District Judge

Before the court is Defendant’s Motion for Summary Judgment brought pursuant to
Federal Rule of Civil Procedure 56(c). For the following reasons, Defendant’s Motion for
Summary Judgment is granted.

J, BACKGROUND’

A. Facts

‘This case arises out of Plaintiff Valcric Filar’s termination from her position as a
substitute teacher at Foreman High School, in Chicago, Illinois. In 1992, Valerie Filar (“Filar”)
began working as a full-time basis substitute teacher (“FB”) at Foreman High School, in
Chicago, Illinois. An FTB is a teacher who is assigned to one school to teach full time. FT'Bs do

not have tenure track, and do not have any scniority rights over other appointed teachers.

| The court takes the undisputed facts from the parties’ Local Rule 56.1 Statements, and
notes disputed facts within the text.



If the defendant presents evidence of a legitimate, non-discriminatory reason for the

adverse employment action, then the defendant is entitled to summary judgment. Stone v. City
of Indianapolis, 281 F.3d 640, 644 (7th Cir. 2002). A claim of retaliation under the ADA is
assessed “in the same manner that we would evaluate a claim of retaliation under other

employment statute, such as Title VII.” Buie, 366 F.3d at 503,

Ilis undisputed that Filar engaged in protected conduct, had performed her job
satisfactorily, and that she was subjected to an adverse employment action. However, just as in
her substantive ADA claim, Filar is unable to establish that similarly situated employees were
treated more favorably than herself. It has been estublished that Filar cannot point to any other
FTB teachers who are directly comparable to her in every respective way, nor can she show that
any similarly situated teacher was treated more favorably than herself. As a result, Filar cannot

establish a prima facie of retaliation under the indirect, burden-shifting method.

Ilowever, with an abundance of caution, the court will analyze the remainder of Filar’s
retaliation claim, Assuming, arguendo, that Filar has established a prima facie casc, the burden
now shifts to the Board to articulate a legitimate, non-discriminatory reason for the termination.
See Moser, 406 F.3d at 904. The Board has stated that it fired Filar as a result of decline in
students at Foreman, and Filar’s lack of certification lo teach in other areas. Filar, on the other
hand, offers no evidence to create a genuine issue of material fact as to this claim, See Supra,

Sec. B(1).

Lastly, the burden shifts back to Filar to demonstrate that the Board’s explanation is

pretextual. See Dunn, 260 F.3d at 784. However, ilar is unable to proffer any evidence that

12


accommodation was available, we stop there.” E.E.O.C., 417 F.3d at 805 (citing Ozlowski v.
Henderson, 237 F.3d 837, 840 (7th Cir. 2001)). Here, Filar specifically requested that she be
placed at a school close to public transportation because of her hip condition. Nowhere in her
complaint does she allege that this hip condition substantially prohibits her from conducting her
job as a teacher. Filar therefore, cannot be classified as a “qualified individual” who, “with or
without reasonable accommodation, can perform the essential functions of the employment
position.” § 1211(8). Filar’s proximity to public transportation does not effect the way in which
she teaches Polish in her capacity as a substitute teacher. As a result, no genuine issue of
material fact exists “regarding the availability of an accommodation” for Filar. See E.E.O.C.,

417 at 797.
4, Filar’s Retaliation Claim

Lastly, Filar claims that the Board retaliated against her after Filar filed her grievance

with the School Board. In order to establish a prima facie case, for retaliatory discharge, the

plaintiff must show that: (1) she engaged in protected conduct; (2) was subject to adverse

employment action; (3) she was performing her job satisfactorily; and (4) no similarly situated
employce who did not engage in the protected activity was subject to an adverse employment
action, Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004) (quoting Rogers v, City
of Chi., 320 F.3d 748, 754-55 (7th Cir. 2003)); see Iudson v. Chi. Transit Auth., 375 F.3d 552,
560 (7th Cir. 2004) (quoting Stone, 281 F.3d at 644); sce also McDonnell Douglas Corp., 411
U.S. at 802. Failure to satisfy any one element of the prima facie case is fatal (o an employee’s
retaliation claim. Hudson, 375 F.3d at 560 (citing Hilt-Dyson v. City of Chic., 282 F.3d 456, 465

(7th Cir. 20029).



produce admissible evidence which would allow the trier of fact rationally to conclude that the

employment decision had not been motivated by discriminatory animus.” Rudin v. Lincoln Land
Comm. Coll., 420 F.3d 712, 725 (7th Cir. 2005) (quoting Stockett vy. Muncic Indiana Transit

Sys., 221 I.3d 997, 1001 (7th Cir. 2000)).

Here, the Board has stated that Filar was displaced from an FTB to a day-to-day substitute
in the cadre due to the decline in enrollment of students in the Polish program for the 1999-2000
school year. Garvey siated thai in order to reach his decision as to which teacher to displace, he
reviewed each teacher’s performance record, and consulted with the human resources department
whether such a displacement would be proper. As a result, the Board’s reason for Filar’s
displacement as an 1’'B and transfer to the cadre was duc to the decline in enrollment, and
because she lacked seniority and proper certification for the open positions at the other Chicago

Public Schools.
¢. Pretext Argument

Lastly, after the Board has established its legitimate reason for its action, Filar is required
to show that the proffered reason is pretextual. Sce Stewart, 207 I'.3d at 376; Herron v.
DaimlerChrysler Corp., 388 I.3d 293, 301 (7th Cir. 2004). “The focus of a pretext inquiry is
whether the employer's stated reason was honest, not whether it was accurate, wise, or well-

considered.” Stewart, 207 F.3d at 378 (quoting Jackson v. E.J. Brach Corp., 176 F.3d 971, 983

(7th Cir. 1999)). The court will not “sit as a supcrpersonnel department that reexamines an
entity’s business decision and reviews the propriety of the decision.” Id. Moreover, it is not

sufficient to prove that the reason was doubtful or mistaken. Crim v. Bd. of Educ. of Cairo Sch.


Newton School, 278 F.3d 693, 699 (7th Cir, 2002).

In deciding a motion for summary judgment, the court can only consider evidence that
would be admissible at trial under the Federal Rules of Evidence. Scc Stinnett v. Iron Works
Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). The court views the record
and all reasonable inferences drawn therefrom in the light most favorable to the non-moving

party. See Fep. R. Civ. P. 56(c); see also Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d

1104, 1108 (7th Cir. 2004). “In the light most favorable” simply means thai summary judgment

is not appropriate if the court must make “a choice of inferences.” See United States v. Diebold,

Inc,, 369 U.S. 654, 655 (1962); see also First Nat’l Bank of Ariz. v. Cilies Service Co., 391 U.S.

253, 280 (1968); Spiegla v. Hall, 371 F.3d 928, 935 (7th Cir. 2004). The choice between

reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477

USS. 242, 255 (1986).

When a party moves for summary judgment, the court must view the record and all
inferences in a light most favorable to the non-moving party. Amcritech Benefit Plan Comm. v.
Communication Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences
construed in the non-moving party’s favor must be drawn from specific facts identified in the

record that support that party’s position. Sec Szymanski v. Rite-Way Lawn Maintenance Co.,

231 F.3d 360, 364 (7th Cir. 2000). Under this standard, “|clonclusory allegations alone cannot
defeat a motion for summary judgment.” Thomas v. Christ Hospital and Medical Center, 328
F.3d, 890, 892-93 (7th Cir. 2003) (citing Lujan v. Natl Wildlife Federation, 497 U.S. 871, 888-

89 (1990).



at whichever school the Board assigned them to on a daily basis. The substitute center told Filar
that Foreman would no longer accept her to teach on a substitute basis, and that she would be
assigned to a different school, Garvey stated that he did not accept Filar as a cadre substitute
teacher at Foreman after her displacement from the FTB list because he believed she was upset at
being displaced, and that it might cause conflict for Filar to work at Foreman where she would
work with people who were still on staff, or had not been displaced.
B. Procedural History

On November 12, 1999, Filar filed a grievance with the School Board alleging that she
was improperly displaced. On January 14, 2000, the Board denied Filar’s grievance. Then, on
July 16, 2004, Filar filed her Complaint in the United States District Court for the Northern
District of Illinois, alleging substantive and retaliatory violations of Title VII, and violations of
the Americans with Disabilities Act (“ADA”). On July 15, 2005, Filar filed her Amended
Complaint. Then, on July 27, 2006, the Board filed its Motion for Summary Judgment. Filar
filed her Response on September 22, 2006, and the Board Replied on October 13, 2006. The
Board’s Motion for Summary Judgment is fully briefed and before the court.

TI. DISCUSSION

A. Standard of Review

Summary judgment is permissible when “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). The
nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Heft v.
Moore, 351 F.3d 278, 283 (7th Cir. 2003), that raise more than a mere scintilla of evidence to

show a genuine triable issue of material fact, See Vukadinovich v. Bd. of Sch. Tr.’s of North



According to Defendant Chicago School Board (the “Board”), an “appointed teacher” is a

certified teacher appointed to a position who begins the process of acquiring tenure. Appointed
teachers do not compete with !'TBs for teaching positions.

In 1995, Filar began to experience hip problems and was later diagnosed with severe
osteoarthritis. This ailment prevent Filar from walking long distances; however, she did not
require the use of a cane or other walking device.

During the 1998-1999 school year, enrollment of Polish-bilingual students at Foreman
decreased, and as a result, one teaching position would be eliminated for the upcoming academic
year. The Board alleges that instead of closing one of the teaching positions, a principal could
choose to remove the Polish-bilingual designation from one of the FTB designated teachers.
Principal Garvey, of Foreman High School, stated that based on his observations of the FTB
teachers, he felt that Filar should be removed from the program. Principal Garvey necded the
approval for this decision from a member of the Human Resources (“HR”) staff. Stephen Heller
(“Heller”), an HR specialist, reviewed Garvey’s decision and analyzed whether Filar’s removal
complied with Board policy. Heller reviewed Filar’s certifications and endorsements to scc if
she had seniority over other FTBs. According to Heller, at the time of Vilar’s transfer, she did
not have seniority over any other I’ TBs in the areas in which she was eligible to teach, which
included Polish.

On September 27, 1999, the Board notified Filar that she was displaced from the FTB
teaching pool. Filar returned to Foreman as a cadre substitute teacher for two weeks. The Board
states that the “cadre” was a group of teachers who where displaced from schools through the

Chicago Public Schools (“CPS”) system, and who performed day-to-day substitute teaching work


creates a genuine issue of material fact as to whether the Board’s reason was “an honest one.”

See Stewarl, 207 F.3d at 378. Absent any such evidence, Filar cannot satisfy this part of the

indirect burden-shifting analysis, and summary judgment is proper as to the Board on Filar’s

retaliation claim.

II. CONCLUSION
For the foregoing reasons, the court grants Defendant's Motion for Summary Judgment.
IT IS SO ORDERED.
ENTER:

Molo K foal)

CHARLES RONALD NORGLE, lyfe
United States District Court

DATED: 50

13