doubt as to the material facts,” is sufficient to defeat a motion for summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
DISCUSSION

A. Count I: Failure to Accommodate

In Count I, Manning claims the Hospital discriminated against her in violation of the
ADA by delaying her return to work from January 7, 2002, the day she requested reinstatement,
to April 7, 2002, the day of her discharge. The ADA provides that “[n]Jo covered entity shall
discriminate against a qualified individual with a disability because of the disability of such
individual in regard to . . . advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 US.C. § 12112(a). The
ADA requires employers to provide “reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the accommodation would impose an
undue hardship.” 42 U.S.C. § 12112(b)(5)(A). To invoke protection under the ADA, a plaintiff
must demonstrate that (1) she is a disabled person within the meaning of the ADA, (2) she is
otherwise qualified to perform the essential functions of the job either with or without reasonable
accommodation, and (3) she has suffered an adverse employment action because of her disability.
Dvorak y. Mostardi Platt Assoc., Inc., 289 F.3d 479, 483 (7th Cir. 2002); Moore v. J.B. Hunt
Transp., Inc., 22 F.3d 944, 950 (7th Cir. 2000).

The Hospital seeks summary judgment on the ground that Manning is not “disabled” as
that term is defined under the ADA, The ADA defines “disability” as (a) a physical or mental

impairment that substantially limits one or more of the major life activities of an individual, (b) a


Evaluations establishing Manning’s poor work performance before the filing of her first
EEOC charge support the Hospital’s claim that it discharged her for this continued poor
performance when she returned to work in April 2002 and not in retaliation for the filing of
EEOC charges. A clear pattern of expressed dissatisfaction with the plaintiff over a period of
several years precludes any possibility of her establishing that she was meeting the Hospital’s
legitimate expectations. Having carefully reviewed the briefs and other supporting documents,
including Manning’s performance evaluations included in the exhibits to the Defendant’s Local
Rule 56.1 Statement of Facts, it is clear she cannot establish at trial that she was meeting the
Hospital’s legitimate employment expectations.

Second, Manning cannot establish the fourth element of a prima facie retaliation claim,
which requires that plaintiff prove other similarly situated employees who had not filed EEOC
charges were treated more favorably. The Seventh Circuit has held “({w]hen a plaintiff claims
that [she] was disciplined more harshly than a similarly situated employee based upon some
prohibited reason, a plaintiff must show that [she] is similarly situated with regard to
performance, qualifications and conduct.” Snipes v. Illinois Dep't of Corrections, 291 F.3d 460,
463 (7th Cir. 2002). To do so, the plaintiff must demonstrate that she and the alleged comparable
“engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” /d.

In this case, Manning has presented no evidence that she was disciplined more harshly
than other similarly situated employees who had not filed EEOC charges. In her opposition brief
to defendant’s summary judgment motion, she states only that she “was treated much more

harshly via her discharge than were the other OSR employees who were not discharged from

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restrictions. (/d. 22-23.) Manning’s impairments cannot be said to be a “substantial
impairment” preventing or restricting her ability to engage in activities that are of central
importance to the daily lives of most people. Toyota Motor Mjg., 534 US. at 197. “The central
inquiry must be whether the claimant is unable to perform the variety of tasks central to most
people's daily lives, not whether the claimant is unable to perform the tasks associated with her
specific job.” Mack v. Great Dane Trailers, 308 F.3d 776, 782 (7th Cir. 2002). Her discomfort
when sitting on bar-stool height chairs and difficulty walking long distances are clearly not the
sort of restrictions which constitute a substantial limitation on one’s ability to perform one’s job
or any other major life activity. See Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir.
2001) (holding that forty-five pound lifting restrictions, inability to engage in strenuous work or
drive a forklift for more than four hours per day fail to “constitute a significant restriction on
one’s capacity to work, as the term is understood within the ADA.”)

Because plaintiff's limitations cannot be said to substantially limit any of her major life
activities, she does not have a disability as defined by the ADA. The Court need not address the
other requirements of an ADA claim because without a disability Manning’s claim must fail. For
these reasons, the Court grants summary judgment on Count I.

B. Counts III and V: Retaliation under the ADA

In Count III, Manning alleges that, after she filed an EEOC charge on May 15, 2002 for
disability discrimination, the Hospital retaliated by subjecting her to less favorable treatment than
similarly situated coworkers. (Compl. § 17.) She alleges the Hospital carried out its retaliation
by “constantly scrutinizing her actions and giv[ing] her disciplinary write-ups for conduct that

was either not a proper subject for discipline or for which other similarly situated employees


record of such impairment; or (c) being regarded as having such an impairment. 42 U.S.C. §
12102(2); see Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). The Court must
interpret these terms “strictly to create a demanding standard for qualifying as disabled.” Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). It is clear that “[m]Jerely having an
impairment does not make one disabled for purposes of the ADA.” Jd. at 195. In addition, a
plaintiff must demonstrate that the impairment substantially limits one of her major life
activities. See 42 U.S.C. § 12102(2)(A). “Substantially limited” means that “an individual must
have an impairment that prevents or severely restricts the individual from doing activities that are
of central importance to most people's daily lives. The impairment’s impact must also be
permanent or long term.” Toyota Motor Mfg., 534 U.S. at 197.

If Manning’s condition does not rise to the level of a disability, then she cannot recover
under the ADA even if the Hospital terminated her employment because of her condition. “The
Act is not a general protection of medically afflicted persons . . . . If the employer discriminates
against them on account of their being (or being believed by him to be) ill, even permanently ill,
but not disabled, there is no violation.” Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051,
1053 (7th Cir. 1997) (citation omitted).

In this case, Manning’s only alleged limitation upon her return to work on January 7,
2002 was her discomfort when sitting on bar-stool height chairs and difficulty walking long
distances. (Resp. to SOF J 23.) She admits she never made a formal request nor presented a
medical opinion that an accommodation should be made related to these limitations. (/d. | 24.)
At the time she presented herself for reinstatement, she had completed cancer treatment, her

cancer was in remission, and her physician had released her for work with no medical


18.) Ina 1999 performance evaluation, her supervisors noted that her performance was well
below average and “[s]he rebuffs the idea that she needs training and even where she has
received additional training, she still performs inadequately.” (SOF, Ex. E.) In the same
evaluation, which covered the period October 1998 to October 1999, her supervisors note:

Imogene continually refuses to follow departmental procedure, for example, she eats
at the greeters desk . . . does not answer the phone in a timely manner, does not relay
important phone messages. . . . Her quality of work is inconsistent. She is moody
and argumentative. Imogene is defensive with staff and management,
temperamental, promotes unrest. Makes no effort to speak or make eye contact with
persons approaching her workstation. . . . She can be impolite and/or abrupt with
patients and coworkers. Her tone is abrasive, disinterested and disrespectful. . . . She
fails to document pertinent information and refuses to be responsible for follow up.
(Id., Pride In Performance Planning and Review Form dated 11/9/99, at 36.)

Manning received these and other below-average evaluations before she filed her first EEOC
complaint on May 15, 2002.

When she returned to work in April 2002, managers in her department reviewed her daily
work log and reported that for the period April 2002 through April 2003, she made errors on
approximately sixty percent of the patient accounts she worked. (SOF 4 47.) She admits she
received a written warning for poor performance on August 26, 2002, a three-day suspension for
poor performance on October 9, 2002, and a second three-day suspension for poor work
performance on February 3, 2003. (Resp. to SOF 4] 50-51.) On February 3, 2003, the
Department also advised her that if her performance did not improve within 60 days, her
employment at the Hospital would be terminated. (/d. 51.) Manning admits that from these
reviews she understood that her superiors were dissatisfied and her employment was in jeopardy.
(SOF 4 18.) Citing her poor work performance, the Hospital discharged her on April 9, 2003.

(id. 451.)


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

EASTERN DIVISION

IMOGENE MANNING y
)
Plaintiff, )
)

v. ) No. 03 C 5802

) Wayne R. Andersen

THE UNIVERSITY OF CHICAGO, ) District Judge
HOSPITALS, an Illinois not-for-profit )
corporation, )
)
Defendant. )

MEMORANDUM, OPINION AND ORDER

Before the Court is the defendant’s motion for summary judgment. For the reasons set

forth below, the motion is granted.
BACKGROUND

Plaintiff, Imogene Manning, was an employee of the defendant, University of Chicago
Hospitals (“Hospital”), for over thirty years spanning from August 1971 until her discharge on
April 9, 2003. (Local Rule 56.1(a) Statement of Facts “SOF” {J 16-17.) Beginning in 1996 until
her discharge, Manning worked as an outpatient service representative, performing registration
and patient inquiry functions for outpatient appointments. (Id. 7.)

On June 15, 2001, Manning took a medical leave of absence to undergo surgery and
treatment for bladder cancer. (Jd. § 20.) On December 20, 2001, while on leave, Manning
notified her supervisors in the Outpatient Services Department (“Department”) that she would be

able to return to work on January 7, 2002. (Id. | 22.) When Manning presented herself for


summary judgment only when it presents definite, competent evidence to rebut the motion.
Albiero, 246 F.3d at 933. Here, Manning has failed to present competent evidence either that she
was meeting her employer’s legitimate expectations, or that other similarly situated employees
were treated more favorably. Accordingly, she has failed to establish a prima facie case of
retaliation under the ADA.

Even assuming that Manning could establish a prima facie case of retaliation against the
Hospital, the Hospital would be entitled to summary judgment because it has proffered a
legitimate, non-discriminatory reason for terminating her employment. Manning’s continued
inadequate performance in a job requiring accuracy and efficiency and her receipt of a warning
and two three-day suspensions in one year’s time are undisputed. (SOF {{f 50-52.)

Manning offers no credible evidence that the reason the Hospital gave for discharging her
was not its real reason. Nothing in the timing or other aspects of the case suggest a retaliatory
motive. She filed her initial charge of discrimination with the EEOC on May 15, 2002 and
continued to work for eleven months thereafter. Such a gap between the protected act of filing an
EEOC claim and the adverse employment action defeats a finding of retaliation. Haywood v.
Lucent Technologies, Inc., 323 F.3d 524, 532 (7th Cir. 2003). Manning also admits that no one
from the Hospital ever made negative mention of her pending charges or otherwise indicated a
dissatisfaction with her having filed them. (SOF { 29.)

In addition, an inference of a retaliatory motive is even less warranted when the plaintiff
was in serious performance trouble even before engaging in the protected activity. Here,
Manning admits receiving negative performance reviews before she ever filed a charge or the

circumstances leading to the charge had arisen. (SOF § 18.) Plaintiff simply cannot meet her

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their jobs.” (P1.’s Mem. Opp’n Summ. J at 12.) The Seventh Circuit has explained that such
generalizations, without factual support in the record, are insufficient to defeat summary
judgment. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.2001); Slowiak v. Land
O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).

Moreover, the Hospital presents in its Local Rule 56.1 Statement of Material Facts an
internal quality assurance report showing that Manning had an error rate six times the average in
her department and more than three times greater than that of the next worst performing
employee. (SOF {| 59-60.) According to the Hospital, this report demonstrates that Manning
cannot be similarly situated to others in her department because, in terms of performance,
Manning “was plainly in a league of her own and thus incapable of showing that similarly
situated employees were treated better than she.” (Mem. in Supp. of Summ. J at 11.)

Manning’s response to this report is that she lacks knowledge sufficient to either admit
or deny this claim. (Resp. to SOF 4 59-60.) Under Local Rule 56.1(b), all material facts set
forth in the defendant’s Statement of Material Facts are deemed admitted unless controverted by
the statement of the opposing party. Here, because Manning does not controvert the Hospital’s
report, we conclude that its findings are accurate. We also agree with the Hospital’s analysis that
because a plaintiff must show she is similarly situated with regard to performance, Manning is
unable to find a coworker with whom she is similarly situated because her performance was far
worse than that of her colleagues. See Snipes, 291 F.3d at 463.

Because the primary purpose of summary judgment is to isolate and dispose of factually
unsupported claims, Manning must set forth specific facts showing there is a genuine issue for

trial. See Fed. R. Civ. P. 56; Albiero, 246 F.3d at 933. A party will be successful in opposing

il


were not given disciplinary write-ups.” (Jd. J 18.) Manning reported this alleged retaliation in a
charge she filed with the EEOC on October 7, 2002.

In Count V of the complaint, Manning alleges her discharge on April 9, 2003 was in
retaliation for the filing of her charges with the EEOC on May 15 and October 7, 2002.

To establish a prima facie case of retaliation under the ADA, Manning must demonstrate
that (1) she engaged in protected activity (e.g., filing an EEOC charge); (2) she suffered an
adverse employment action; (3) she was meeting her employer’s legitimate employment
expectations; and (4) other similarly situated employees who did not engage in protected activity
were treated more favorably. Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640,
642 (7th Cir. 2002). If she can establish a prima facie case of retaliation, the Hospital may rebut
her claim, under the McDonnell-Douglas analysis, by providing a non-invidious reason for its
actions. See Stone, 281 F.3d at 643. If an employer provides a legitimate reason for its conduct,
the burden shifts back to the employee to provide evidence that the employer’s proffered reason
is pretext. Id.

In this case, Manning cannot establish a prima case of retaliation for at least two reasons.
First, she cannot demonstrate that she was meeting her employer’s legitimate employment
expectations. An inference of retaliatory motive is less warranted when the plaintiff is in
performance trouble before she engages in protected activity. Allen v. Chicago Transit Authority,
317 F.3d 696, 701 (7th Cir. 2003) (finding plaintiff's retaliation claims “fatally undermined by
uncontroverted evidence of infractions and discipline prior to his complaints . . . .”). Before
Manning took her medical leave of absence, she admits she consistently received an overall

rating of “1” or “2” on a one to five scale, one being the lowest rating available. (Resp. to SOF {


Court. In Count I, she alleges a violation of the Americans with Disabilities Act (“ADA”) for
failure to reasonably accommodate. In Count III, she alleges the Hospital subjected her to less
favorable treatment than similarly situated employees in retaliation for having filed an EEOC
charge of discrimination on May 15, 2002. In Count V, she alleges the Hospital terminated her
employment on April 9, 2003 in retaliation for having filed previous EEOC charges. In Counts
Il, IV, and VI, Manning also alleges violations of the Illinois Human Rights Act. On September
24, 2004, however, this Court granted plaintiff's own motion to voluntarily dismiss these state
law claims. The Hospital now seeks summary judgment on the remaining Counts I, III, and V.
STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate in a
situation where “the pleadings, depositions, answers to interrogatories, and admission on file,
together with the affidavits, if any, show 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, 322-323 (1986). The Court’s function is “not to weigh the
evidence but merely to determine if ‘there is a genuine issue for trial.” Jackson v. Illinois Medi-
Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)). A genuine issue of material fact exists only if a “fair-minded jury could return
a verdict for the [non-moving party] on the evidence presented.” Anderson, 477 U.S. at 252.

In assessing whether a genuine issue of material fact exists in a case, the Court must
construe all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in favor of that party. See id. at 255. However, neither the mere existence

of some alleged factual dispute between the parties, nor the existence of “some metaphysical


After she returned to work, her performance did not improve. Approximately nine
months after her return, in January 2003, her department implemented a new method of auditing
employees’ work. The managers began reviewing employees’ daily work logs and randomly
selected approximately five accounts listed on the log. (/d. 35.) The managers then reviewed
those patient accounts and completed a quality assurance audit report. (/d. | 36.) New
employees or those having performance issues were audited using the daily work log method.
(SOF 4 37.)

Because Manning had performance problems and had been recently reinstated,
department managers began reviewing her daily work log. The managers reported that for the
period April 2002 through April 2003, she made errors on approximately sixty percent of the
patient accounts she worked. (SOF 47.) Manning admits she received a counseling
memorandum detailing her poor performance on June 17, 2002, followed by a written warning
on August 26, 2002 and a three-day suspension starting October 9, 2002 for poor work
performance. (Resp. to SOF 4 50.) On February 3, 2003, the Department issued a second three-
day suspension for poor work performance and advised her that if her performance did not
improve within 60 days, her employment would be terminated. (/d. 51.) Citing her poor work
performance, the Hospital discharged Manning on April 9, 2003. (Id.)

On June 26, 2003, Manning filed a second charge of retaliation with the EEOC (her third
EEOC charge) alleging that her discharge on April 9, 2003 was in retaliation for filing previous
charges with the EEOC. On July 8, 2003, she was issued a notice of her right to sue in federal
court.

On August 19, 2003, Manning filed a six-count complaint against the Hospital in this


reinstatement on January 7, 2002, she had completed cancer treatment, her cancer was in
remission, and her physician had released her for work with no medical restrictions. (Resp. to
SOF 4 23.) She admits her only limitations were some discomfort when sitting on bar-stool
height chairs and difficulty walking long distances. (/d.)

On January 7, 2002, Manning met with human resources personnel, who requested that
she take an assessment test to assist in identifying open and available positions throughout the
Hospital for which she was qualified. (/d. 27.) Based on advice she received from her union
representatives, Manning never took the assessment test, believing it was not required under the
union’s collective bargaining agreement. (/d. {| 27-28.)

After filing a grievance with her union, Manning was reinstated to her position on April
7, 2002. (Id. | 29.) On May 15, 2002, she filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging the Hospital’s actions in not
reinstating her on January 7, 2002 constituted disability discrimination. (/d.)

In the months following the filing of her EEOC charge on May 15, 2002, Manning alleges
she was subjected to less favorable treatment than her coworkers and was given less favorable
job assignments. Accordingly, on October 7, 2002, she filed another charge with the EEOC
alleging retaliation. She was issued a notice of her right to sue on May 23, 2003.

During the last several years of her tenure with the Hospital, Manning received negative
performance evaluations. From 1996 through June 2001, the period before Manning went on
medical leave, she received annual evaluations of her work performance. (/d. 4 18.) Manning
admits she consistently received an overall rating of “1” or “2,” which indicated she needed

improvement. (Id.)


burden of proffering any probative evidence showing that the reasons for her termination were a
pretext for retaliation. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 983-84 (7th Cir. 1999),
For these reasons, the Court grants defendant’s motion for summary judgment on Counts III and
Vv.
CONCLUSION
For the foregoing reasons, we grant defendant’s motion for summary judgment [# 19-1].

Accordingly, this case is terminated. This is a final and appealable order.

T Wayne R. Andersen
United States District Judge

It is so ordered.

Dated: ashutt 24, 200s

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