Opinion
CAUSE NO. IP 01-1535-C H/K.
June 18, 2003.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Sandra K. Skiles worked for defendant Eli Lilly and Company for 18 years before Lilly fired her in April 2000. Skiles suffers from depression and anxiety, and Lilly terminated her employment after she took a three month medical leave of absence. Skiles has sued Lilly for violating her rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and for firing her in retaliation for exercising her rights under the ADA, and for violating her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the Employment Retirement Income and Security Act (ERISA), 29 U.S.C. § 1140 et seq. Skiles contends that Lilly unlawfully based its decision to fire her on her impairments, her medical leave, and her use of FMLA benefits. Lilly contends that it fired Skiles because of numerous discrepancies and flaws in work for which she was responsible. Lilly moved for summary judgment on all claims. As explained below, that motion is granted because the undisputed evidence shows that Lilly accommodated each one of Skiles' many requests for reasonable accommodation and that Lilly eventually fired Skiles for a perfectly lawful reason: very poor performance in a critical area for a drug manufacturer — quality control.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Internet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The existence of" some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to them. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to Skiles, the non-moving party, and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
Undisputed Facts
The parties' submissions pursuant to Local Rule 56.1 helpfully spell out a very detailed account of the relevant facts about Skiles and her employment at Lilly and are treated as undisputed for purposes of the summary judgment motion.
I. Skiles' Depression and Anxiety
Skiles has battled major depression, anxiety, and panic attacks for several years and has been diagnosed as suffering from these conditions since 1996. Her depression and anxiety have been treated through medication, counseling, and periods of in-patient hospitalization that required her to take a leave of absence from work.
Skiles' husband William testified that these conditions significantly affected her home life since 1996. W. Skiles Aff. ¶¶ 4-5. More specifically, Skiles alleges that her depression affected her social life and relationships with her family and colleagues at work. S. Skiles Dep. at 46. When her depression was at its worst, Skiles testified, she did not want to do anything or be around her family members. Id. She had difficulty concentrating at work and lost all interest in things she used to enjoy, such as reading. Id. at 46, 48. William Skiles testified that in 1998 and 1999, she was unable to converse and socialize with her family and friends in a normal manner and had severe difficulty sleeping. W. Skiles Aff. ¶¶ 7, 12. In addition, he testified that he was concerned that she would take her own life because she had expressed suicidal thoughts. Id., ¶ 13.
Skiles testified that even when her depression was at its worst, however, she was still able to do daily activities such as driving, cooking, cleaning, and gardening, though she forced herself to do these activities at times. S. Skiles Dep. at 47. Her anxiety made it difficult to perform her job, but not impossible. Id. at 58.
William Skiles testified that although his wife performed household chores, she did not do so on a regular basis. W. Skiles Aff. ¶ 8.
In its statement of material facts, defendant Lilly has cited to page 58 of Skiles' deposition for the proposition that her condition did not preclude her from performing her job, rather it made it more difficult. Page 58 does not support this proposition. Although page 58 contains the question "Do you think it was impossible for you to perform your job or just difficult?" it does not contain a substantive response, and page 59 is not in the record. Skiles has not raised an objection to Lilly's proposition, but has noted that it was impossible for Skiles to perform her job during her two medical leaves. See Def. Br. at 3, citing Skiles Dep. at 58; Pl. Br. at 3. After consideration of plaintiff's clarification and other evidence in the record, the court treats this proposition as undisputed.
Skiles testified that she did not believe she suffered at the time of her deposition from any conditions that affected her ability to perform daily activities but was continuing treatment for anxiety, stress, and depression. S. Skiles Dep. at 20, 44; attached corrections, errata sheet 1. William Skiles testified that she takes extra medications when confronted with stressful situations, such as calls from her attorney and testifying. W. Skiles Aff. ¶¶ 30-32.
II. Skiles' Work with Lilly
During Skiles' 18-year career with Lilly, she worked in many different positions, including work in housekeeping, on the loading dock, in production as a machine operator, in the fermentation lab, in the computer room, on the insulin production line, and in the quality control department. S. Skiles Dep. at 29, 30, 31, 32, 35, 79. She also worked as a security guard. Id. at 30.
Skiles worked in so many different capacities, in part, because Lilly honored all of the many medical restrictions that Skiles' physicians had imposed. S. Skiles Dep. at 38. Skiles' first medical restriction came after she had a minor operation in 1985. She informed Lilly that her doctor recommended that she avoid heavy lifting and pulling. Id. at 29, 30. Upon receiving notice of this restriction, Lilly transferred Skiles from the dock to production, where she worked as a machine operator. Id. at 30. Skiles later took a position with security. When security went to a twelve-hour shift, Skiles transferred to a fermentation laboratory. Id. at 31. She eventually left this position because she found the job to be too stressful. Id. Lilly helped Skiles move to a different job, this time in the computer room. Id. at 32. There, Skiles rotated between printing, loading tapes into drives, and doing desk work. When she began suffering from tendinitis in her elbow, Lilly adjusted her work to avoid tasks that would aggravate her symptoms. Id. at 40-41. Skiles then began working on an insulin production line. Id. at 35. During her work there she took her first leave of absence in October 1996. Id. at 16, 17, 35-36. Lilly granted her leave pursuant to the FMLA. Although the FMLA requires only unpaid leave, Lilly paid Skiles her full salary during her four-week leave. Id. at 17.
When Skiles returned to work, she notified Lilly that she could not work overtime. S. Skiles Dep. at 42; Dep. Ex. 5. Lilly honored that restriction. S. Skiles Dep. at 42. About a month later, Skiles' physician restricted her from working on or around machinery. S. Skiles Dep. at 39; Dep. Ex. 3. Lilly also honored that restriction. S. Skiles Dep. at 39. A month later in December 1996, Skiles' physician advised that her recovery would be maximized by a move to a different position. S. Skiles Dep. at 36; Dep. Ex. 4. Lilly implemented this advice by moving Skiles to a temporary position and permitting her to "post" for a new job. S. Skiles Dep. at 37. Skiles found a job as an assistant in the quality control department, and began working in that position in October 1997. Id. at 79.
In recent years, Lilly has filled open positions below the department head level by using a posting system. Dupee Aff. ¶ 17. Positions are posted electronically on the company intranet, and interested Lilly employees can apply for the positions. Id., ¶¶ 18-19. Management then selects a candidate from those who have applied. An employee who has held a position for less than two years is not eligible to apply for a posted position without the permission of his or her direct supervisor. Id., ¶ 21. Lilly permitted Skiles to apply for a new position in 1996 even though she had not held her then present position for the requisite two years. S. Skiles Dep. at 36-37.
Quality control assistants play a crucial role in Lilly's quality control process. They review the accuracy and completeness of documents to determine whether production has met quality control standards. Dupee Aff. ¶¶ 4, 5. Quality control representatives then check the work of quality control assistants. S. Skiles Dep. at 101. The accuracy of the documentation is of particular importance because Lilly must maintain it for possible inspection by the FDA. Skiles testified that she was aware that the product could be jeopardized if she did not catch errors in the documents. Id. at 101-02.
Skiles received training for this position from Linda Lawrence, another quality control assistant. Lawrence trained her for a seven month period. That training was in addition to the training Skiles received from studying written procedures, classroom training, and computer-based learning. S. Skiles Dep. at 83-86. Skiles testified that Lawrence did a "very good" job of training her, though Skiles believed she needed a couple of years of training for the position. Id. at 89, 92-93. Skiles' direct supervisor, Deb Dupee, testified that Skiles received more training than most quality control assistants receive. Dupee Aff. ¶ 7.
Skiles testified that she "should have been put in each and every job in that building and learned that job so I knew more of what I was doing when I checked their paperwork." S. Skiles Dep. at 89.
As a quality control assistant, Skiles worked with the documentation of Building 105 — a problem area for Lilly. There was a high rate of errors associated with Building 105. W. Skiles Aff. Exs. 1-A, 1-B, 1-C; S. Skiles Dep. at 60-61. In fact, a year after Skiles was terminated, Lilly received a warning letter from the FDA following an inspection of Building 105. W. Skiles Aff. Ex. 1-B.
Skiles testified that working as a quality control assistant was stressful for her because she believed she had not been properly trained, and because the facility her department monitored was having problems. S. Skiles Dep. at 60-61. Skiles also felt that more responsibility was falling onto the quality control assistants in her area because of a staff shortage. Id. at 60, 93. She testified that she "felt like I was being pushed to do more than I could handle" and that "at the end I was doing a lot." Id. at 93. She did not ask her physician for a restriction, however, because she liked the job and wanted to give it a try. Id. at 73. In late summer of 1999, Skiles discussed these issues with John Masengale, who gave her permission to post for a different position. Id. at 61, 62. Skiles was unable to find another job. Id. at 62. Skiles also discussed her stress with Dupee. Dupee told Skiles that "no one could be more stressed than anyone else," and she arranged for Dr. Cindy Allen to speak with the group about managing stress. Id. at 134-35. Skiles felt very uncomfortable by the discussion Dr. Allen had with the quality control assistants because she felt like she was being taunted by her colleagues during the discussion. Id.
Skiles testified that she received feedback about the number of errors she was making during her last year of employment with Lilly. S. Skiles Dep. at 92. For instance, in her 1999 performance evaluation, Skiles was warned to reduce her documentation errors. S. Skiles Dep. Ex. 11. Skiles agreed with the feedback, and believed these errors were caused by the increasing work load she was being given. S. Skiles Dep. at 92. She also was under the impression that everyone was making a lot of mistakes. Id. Dupee testified, however, that in 1999 and 2000, Skiles made far more errors than any of the other employees who reported to her. Dupee Aff. ¶ 8.
Dupee discussed these errors with Skiles during her interim review in 1999. Skiles testified that she and Dupee discussed errors in "dose control" and that dose control had been a problem for her. She stated that she never had understood it and believed that she needed additional training in the area. S. Skiles Dep. at 98. The discussion between Dupee and Skiles became heated; the review was resumed later when an additional supervisor was present. Id. Skiles agreed that she needed to reduce the number of mistakes she was making and contacted the quality control representatives for help. Skiles requested that the representatives make copies of any mistakes she made in the future so she could study her mistakes and learn from them. Id. at 100. When Skiles did not receive further feedback or correspondence from the representatives, she assumed she was performing her job correctly. Id. at 110.
On January 17, 2000 during a meeting with Dupee and Patty Novlen, Skiles received a six-month formal warning regarding her performance. S. Skiles Dep. at 102; S. Skiles Dep. Ex. 13. The written warning identified specific problems with Skiles' work, including mistakes she had made. The warning also listed Lilly's specific expectations for Skiles, which Skiles agreed were legitimate. S. Skiles Dep. at 105; Dep Ex. 13. Dupee told Skiles that if she did not improve her performance, she could be terminated from the company. S. Skiles Dep. at 103; Dep. Ex. 13. Skiles refused to sign the warning because she wanted to see the actual documents in which she allegedly had made the mistakes. Id. Skiles found the meeting to be upsetting, and her therapist requested stress leave for her. S. Skiles Dep. at 106. Lilly approved the leave under the FMLA and paid Skiles her full salary. Id. at 18. During her medical leave, Skiles required inpatient treatment for four weeks at St. Vincent's Stress Center. Id. at 108. She never returned to Lilly.
While Skiles was on leave, Lilly discovered numerous additional errors that she had made. Dupee Aff. ¶ 9. As a result of the errors, Lilly was forced to audit an entire category of documents for which Skiles had been responsible. Id., ¶ 10. Lilly temporarily reassigned another employee to this task, who spent more than two full weeks conducting the audit. Id., ¶ 11. Ultimately, Lilly discovered errors and significant omissions in every EMT (extra materials tickets) that Skiles had completed. Id., ¶ 12. Due to the number and magnitude of the errors, Skiles' supervisors questioned whether Skiles had falsified documents by signing as having reviewed the documentation when she had not actually done so. Id., ¶ 13. Skiles' supervisors concluded that at the very least, she had been grossly incompetent in performing her duties. Id., ¶ 14. As a result, her supervisors no longer had confidence in her ability to perform as a quality control assistant and concluded that allowing Skiles to continue in such a capacity could jeopardize Lilly's product. Id., ¶¶ 15-16.
Sharon Hartsock (one of Skiles' supervisors) and David Jones (a human resources representative) met with Skiles to discuss the situation. S. Skiles Dep. at 109; Jones Aff. ¶ 5. They arranged to meet with her at St. Vincent's Stress Center. Skiles' husband and therapist were present for the meeting for support. S. Skiles Dep. at 109. At the meeting, Hartsock told Skiles about the mistakes Lilly had found during her absence. Id. at 109-12. In response, Skiles told Hartsock and Jones that she did not believe her training had been adequate. Id. at 112.
When Skiles was released to return to work, Jones instructed her to stay at home while Lilly made a decision regarding her employment. S. Skiles Dep. at 122. Lilly continued to pay Skiles her full salary during this time. Id. Jones spoke with several people, including Lawrence, regarding Skiles' claim that she had not been trained properly. Jones Aff. ¶ 8. Following the investigation, Jones determined that Skiles had, in fact, been properly trained. Id., ¶ 9. Jones met with members of line management to discuss Skiles' situation. Id., ¶ 10. Jones testified that the group decided to terminate Skiles' employment due to her "gross failure to perform her duties" as a quality control assistant. Id., ¶ 11. Jones testified that Skiles' medical leave, medical conditions, and prior claims for benefits were not factors in this decision. Id., ¶ 12. Hartsock and Jones met with Skiles on April 17, 2000. Hartsock told her that Lilly was terminating her employment due to the documentation errors. S. Skiles Dep. at 123. Skiles testified that she believed Hartsock was being truthful with her in conveying Lilly's reason for its decision. Skiles understood why Lilly fired her but believes that Lilly should have fired her supervisor as well for not making sure she had performed her job properly. Id. at 124.
Skiles currently works for Skiles Country Auto Parts, a business that is owned by her husband and her brother-in-law. S. Skiles Dep. at 20; W. Skiles Aff. ¶ 25. There, she is responsible for answering phone calls, ordering supplies, filing, and running errands. Id., ¶ 26. William Skiles testified that she is able to perform these functions and is an asset to his business. Id., ¶ 27. Auto Parts accommodates Skiles' depression and anxiety by allowing her to take time off when her illness is more symptomatic. Id., ¶ 28. William Skiles testified that he does not believe his wife could perform a job that required mental concentration or acuity, a job that involved the stress of meeting deadlines or quotas, or a job that required regular interaction with people other than that at a superficial level. Id., ¶¶ 33-37.
Skiles has attempted to supplement Lilly's statement of material facts on the accommodation issue. See Pl. Br. ¶¶ 138-43, 163. However, these asserted facts are based on portions of Skiles' deposition testimony that neither party has submitted to the court. Because these statements lack factual support in the record, the court has not considered them in ruling on Lilly's motion for summary judgment.
Discussion
I. Reasonable Accommodation ClaimAn employer violates the ADA by failing to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . ., unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A).
Skiles asserts that Lilly violated the ADA in not accommodating her stress. Specifically, Skiles argues that Lilly did not provide additional training, feedback on her errors, or transfer her to a housekeeping position. In support of its motion, Lilly contends that it granted every request for accommodation that Skiles made. According to Lilly, however, the court need not reach that issue is because Skiles is not disabled under the ADA.
To establish a reasonable accommodation claim under the ADA, Skiles first must show: (1) she was disabled; (2) her employer was aware of her disability; and (3) she was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of her position. Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). The employee must then show that the employer failed to provide a reasonable accommodation that she needed to perform the essential functions of her position.
The threshold issue in this case is whether Skiles met the disability definition at the time she sought an accommodation. The ADA defines a disability to include "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). "Merely having an impairment does not make one disabled for purposes of the ADA." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). Rather, a claimant must demonstrate that the impairment poses a permanent or long-term limitation on a major life activity, meaning that the impairment "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Id. at 198.
Skiles contends that her depression and anxiety substantially limit her ability to walk, talk, work, and think. Cplt. ¶ 12. The factual submissions demonstrate that Skiles has suffered from depression and anxiety. The Seventh Circuit has taught that major depression can constitute a disability under the ADA. See, e.g., Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763, 767-68 (7th Cir. 2002); Krocka v. City of Chicago, 203 F.3d 507, 512 (7th Cir. 2000); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1061 (7th Cir. 2000).
Lilly contends instead that these impairments have been only temporary and have not prevented or severely restricted Skiles' major life activities. On this point, the court finds Lilly's arguments persuasive. The evidence, even when viewed in a light most favorable to Skiles, does not demonstrate that her depression and anxiety severely restricted her ability to perform major life activities, nor would the evidence support a finding that any severe restriction she might have is long-term.
With respect to her ability to work, the evidence shows that her depression and anxiety made it more difficult to perform her job but not impossible. This is significant. To demonstrate a substantial limitation on the major life activity of working, an individual must show she is restricted from an entire class of jobs or a broad range of jobs in various classes. 29 C.F.R. § 1630.2(j)(3)(i); Krocka, 203 F.3d at 513 (employee suffering from depression, who acknowledged that he could perform his job adequately with medication, was not disabled despite the fact that depression affected his interactions with others). Of course, it was impossible for Skiles to perform her job during her two medical leaves, which together add up to about four months over a three and a half year period. These medical leaves were temporary limits on Skiles' ability to work, however, as evidenced by the release she received to return to work, by her current employment, and by her testimony that she currently does not suffer from any conditions that affect her daily activities. Skiles Dep. at 20, 44. The medical leaves do not evidence the type of permanent or long-term limitation required to meet the ADA's definition of disability. See Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763, 767-68 (7th Cir. 2002) (depression was not a severe limitation on plaintiff's ability to work when plaintiff testified that he could work prior to his eight-week medical leave and there was no evidence that he could not work afterwards).
To support her claim that her depression affected her ability to think, Skiles has submitted portions of the EEOC guidelines that define when an impairment substantially limits a person's ability to concentrate and think. Pl. Br. at 22-23, citing "EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities," 8 FEP Manual (BNA) 405:7461 (1997). The excerpted portion cites as an example a person with an anxiety disorder who makes repeated mistakes at work because his mind wanders or who is distracted by irrelevant thoughts. Skiles' own testimony distinguishes herself from the employee in the EEOC guidelines. She testified that while she knew she was making errors in her work, she thought others were making just as many errors. Skiles also attributed her mistakes to the department being short-staffed, to the larger epidemic of problems in production at Building 105, and to her lack of understanding of dose control. Skiles' testimony does not support a reasonable finding that her inability to concentrate was the reason she was making mistakes or that she felt an accommodation related to her depression would improve her performance.
Further, the record does not support Skiles' claims that her depression substantially limited her ability to walk and talk. Skiles testified that during the worst point of her depression and anxiety, with some difficulty, she was still able to perform daily activities such as driving, cooking, cleaning, and gardening — activities that implicitly involve walking. The fact that Skiles had difficulty with these tasks or forced herself to perform them does not show a substantial limitation on her ability to walk. Niese v. General Elec. Appliances, 2000 WL 1617774, *5 (S.D. Ind. 2000) ("The inability to perform activities with `ordinary ease' does not mean that an individual is significantly restricted in performing such activities.").
With respect to communication, Skiles testified that at her worst point, her depression affected her relationship with her husband and family because she "didn't want to do anything" or "be around them." S. Skiles Dep. at 46. When asked if her depression affected her in other ways, she answered "No." Id. Skiles never mentioned any difficulty conversing with others. The only support for this claim comes from her husband's affidavit, which states that Skiles "would return home from work unable to converse and socialize with her family and friends in a normal manner." W. Skiles Aff. ¶ 7. William Skiles' affidavit is internally inconsistent on this point. Though he stated that his wife was unable to communicate with family and friends after work, he later stated that his wife was "obsessed in conversation" with her supervisor's treatment of her. Id., ¶ 18. The latter statement indicates that Skiles did indeed communicate with her family and was able to convey her sentiments to them. In any case, the fact that Skiles might have had difficulty conversing and socializing with her family and friends after work falls well short of a finding that her depression and anxiety had a substantial and long-term effect on her ability to communicate.
William Skiles' affidavit conflicts with Skiles' own deposition testimony about the effect her depression had on her major life activities, in an effort to create a factual dispute on this issue. For instance, Skiles testified that, with some difficulty, when her depression was at its worst, she was still able to cook, clean, drive, and garden. S. Skiles Dep. at 47. Her husband testified that she did not perform these activities with any regularity. W. Skiles Aff. ¶ 8. Similarly, Skiles never even mentioned difficulty communicating or sleeping when asked how her depression affected her. Her husband, however, testified that it did.
In considering summary judgment motions, courts look skeptically at a party's efforts to "patch up" her own deposition with a later affidavit because nearly "all affidavits submitted in litigation are drafted by the lawyers rather than the affiants." Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995). Moreover, if a party were permitted "to create a genuine issue of material fact by changing his prior testimony: the very purpose of the summary judgment motion — to weed out unfounded claims, specious denials, and sham defenses — would be severely undercut." United States v. Torres, 142 F.3d 962, 968 (7th Cir. 1998). Thus, the Seventh Circuit has taught that when a deposition and affidavit conflict, the affidavit is disregarded unless it is shown that the deposition testimony was mistaken, the question was confusing, or there is a plausible excuse for the discrepancy. E.g., Piscione v. Ernest Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir. 1999). Lilly argues that this rule should apply here, but it applies normally to situations involving a party's deposition and her own subsequent affidavit. Particularly where a party's mental condition is at issue, the court is not convinced that the rule should apply to Skiles' husband's affidavit. Nonetheless, William Skiles' statements, even when taken at face value, fall short of demonstrating that his wife's depression had a substantial and long term effect on her ability to work, walk, communicate, and think.
Even if Skiles were found to be disabled within the meaning of the ADA, her claim would still fail because the undisputed evidence shows that Lilly reasonably accommodated all of her requests. Skiles herself testified to this fact. Skiles Dep. at 38. In her brief, Skiles now argues that her request for a supervisor other than Dupee and her request for a transfer to housekeeping were not accommodated. However, there is no evidence in the record that Skiles made these requests or that she would have had trouble asking for them, especially since she had requested accommodations in the past. Compare Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000) ("Although there will be exceptions . . . the standard rule is that a plaintiff must normally request an accommodation before liability under the ADA attaches."), with Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996) (where an employee has mental impairments and needs an accommodation but cannot ask for one, the employer must act in good faith and meet the employee halfway and do what it can to help).
Even if there were evidence that Skiles made these requests, the result would not change. The ADA defines reasonable accommodations to include "reassignment to a vacant position." 42 U.S.C. § 12111(9)(B). An employer is not required to "bump" other employees to different positions to create a vacancy or to create a new position for a disabled employee. Weiler v. Household Finance Corp., 101 F.3d 519, 526 (7th Cir. 1996). Skiles has not come forward with any evidence that there were vacancies in housekeeping. The ADA also does not empower a disabled employee to establish his or her own conditions of employment, such as determining who will supervise him or her. Id. (employer not required to assign different supervisor to disabled employee under the ADA), citing Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) ("Indeed, nothing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons."). Thus, even if Skiles did request a different supervisor, Lilly was not required to accommodate that request under the ADA.
Similarly, Skiles' arguments that Lilly failed to accommodate her request for feedback or additional training are not convincing. First, the "accommodation" for feedback to which she refers was an e-mail that she sent to quality control representatives for copies of her mistakes. Second, the record does not support the assertion that she requested either additional feedback or additional training as an accommodation for her depression and anxiety.
Because Skiles cannot establish a prima facie case of discrimination on the basis of disability, Lilly is entitled to summary judgment on that claim.
II. Retaliation Claims
Skiles alleges that Lilly fired her in retaliation for exercising her rights under the FMLA, ADA, and ERISA. Cplt. ¶¶ 41, 44-45, 49-50. More specifically, Skiles alleges that Lilly fired her because of her impairments, her medical leave, and her use of benefits. Lilly maintains that it terminated Skiles' employment because of mistakes in her work that it had discovered.
While the FMLA, ADA, and ERISA provide substantive protections, they also afford an employee protection in the event that the employee is discriminated against for exercising those rights. King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999) (in addition to 12 work weeks of unpaid leave for qualified employees the FMLA "affords employees protection in the event they are discriminated against for exercising their rights under the Act."), citing 29 U.S.C. § 2615(a) and 29 C.F.R. § 825.220(c); 42 U.S.C. § 12203(a) (ADA provision prohibiting retaliation); 29 U.S.C. § 1140 (ERISA provision prohibiting retaliation). The question is whether Skiles has come forward with evidence that would allow a reasonable jury to find that Lilly's decision to fire her was motivated by an impermissible retaliatory or discriminatory animus.
Since Skiles has not provided the court with any direct evidence of discrimination, the court applies the McDonnell Douglas burden-shifting framework to her claim that Lilly fired her because she exercised her rights guaranteed by the FMLA, ADA, and ERISA. King, 166 F.3d at 891. To establish a prima facie case of retaliatory discharge under all three statutes, Skiles must come forward with evidence tending to show that after exercising her rights she, unlike any similarly situated employee who did not exercise his or her rights, was subjected to an adverse employment action even though she was performing her job in a satisfactory manner. See Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002) (adopting "new rule for the adjudication of retaliation cases" on summary judgment); see also Rogers v. City of Chicago, 320 F.3d 748, 754-55 (7th Cir. 2003) (in Stone "we enunciated a new rule for proving retaliation under the indirect method in this circuit"). There is an additional element for an ERISA retaliation claim: Skiles must prove that Lilly had the "specific intent to violate the statute and to interfere with [her] ERISA rights." Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 892 (7th Cir. 2001). A "failure to satisfy any element of the prima facie case proves fatal to the employee's retaliation claim." Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002).
Some Seventh Circuit decisions after Stone appear to have adhered to the older standard that required a "causal link" between the protected activity and the adverse employment action. See, e.g., Franzoni v. Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002) (ADEA retaliation case applying standard from Horwitz v. Board of Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 616 (7th Cir. 2001), an FMLA case). Skiles' claims would fail also under the older standard because she has not come forward with evidence that would support a finding of a causal link between her leave and her termination.
Skiles cannot establish a prima facie of retaliation for two reasons. First, the overwhelming and undisputed evidence shows that Skiles was not performing to Lilly's legitimate expectations. Skiles testified herself that she knew she was committing errors, and that these errors could jeopardize the integrity of Lilly's product. As the factual record also indicates, these errors involved Building 105 — an area that was of great concern to Lilly. Further, Skiles received a warning letter the day before she took her second medical leave, warning her that a failure to improve her performance could result in termination. This warning was issued prior to Lilly's discovery that Skiles had made mistakes in virtually every document in an entire class of documents for which she was responsible. Despite Skiles' impression that her colleagues were making just as many mistakes, Skiles' supervisor testified that she made far more mistakes than the other employees in the department. Skiles' "impressions" on this point are not evidence. Skiles has not raised a genuine issue of fact as to whether she was performing her job to meet Lilly's legitimate expectations.
In limited circumstances, however, an employee alleging discriminatory disciplinary action need not demonstrate that she was meeting her employer's legitimate expectations. Such analysis is appropriate "in cases where the reason for the employee's termination was alleged to be a sham designed to hide the employer's discriminatory purpose." Brummett v. Lee Enterprises, Inc., 284 F.3d 742,745 (7th Cir. 2002), citing Vakharia v. Swedish Covenant Hospital 190 F.3d 799, 807 (7th Cir. 1999). By the same reasoning, a plaintiff may also be excused from showing that she met the legitimate expectations of her employer where she alleges that other employees also were not meeting the employer's expectations but either were not disciplined or were not disciplined as harshly. See Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001) ("where the issue is whether the plaintiff was singled out for discipline based on a prohibited factor, it `makes little sense . . . to discuss whether she was meeting her employer's reasonable expectations'"). When a plaintiff's case falls within this narrow exception, where the plaintiff alleges discrimination in the application of what would otherwise be legitimate discipline, the second element depends not on full satisfactory performance, but on comparisons between the plaintiff and other similarly situated employees.
Skiles has not set forth evidence establishing such comparisons, however. While she has made vague references to a high error rate throughout her department, she has not identified a similarly situated employee who did not exercise his or her rights and was treated more favorably. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939-40 (7th Cir. 2003) (plaintiff failed to establish prima facie case of discriminatory discipline because she did not demonstrate or identify another employee who had the same supervisor, was subject to the same rules, and engaged in conduct of comparable seriousness, but "nonetheless received disparate treatment for no apparent legitimate reason").
Even if Skiles were able to meet the requirements of a prima facie case, including the specific intent required for her ERISA claim, she has not offered any evidence from which a reasonable jury could infer that Lilly's stated reasons for terminating her were pretextual. Skiles has not challenged the veracity of her performance evaluations. To the contrary, Skiles testified that she agreed with the evaluations of her work. Skiles also testified that she believed Hartsock was being truthful with her in explaining why Lilly was terminating her employment. Thus, the only evidence in the record concerning Skiles' discharge demonstrates that she was making errors in her work that were costly for Lilly. See, e.g., Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763, 768 (7th Cir. 2002) ("employers may fire employees for poor performance if they would have fired them for their performance regardless of their having taken" FMLA leave).
Skiles has failed to come forward with evidence that would establish a prima facie case or support a finding that Lilly's reasons for terminating her employment were pretextual or unworthy of credence. Accordingly, Lilly is entitled to summary judgment on Skiles' claim of retaliation in violation of the ADA, FMLA, and ERISA.
Conclusion
For the foregoing reasons, defendant's motion for summary judgement is granted on all claims. Final judgment shall be entered accordingly.
So ordered.