Opinion
Cause No. IP 99-519 C-M/S
April 6, 2000
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on the motion of defendant, Sweetwater Sound, Inc. ("Sweetwater"), seeking judgment in its favor as a matter of law on all of the claims presented in the complaint filed by Brian Whitney ("Whitney") on March 12, 1999. Whitney brought this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Whitney contends that he suffered discrimination when he was terminated from his position with Sweetwater because he is an insulin-dependent diabetic and he has a brain cyst as well as a leg impairment. Am. Compl. ¶¶ 3, 16. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the defendant's motion for summary judgment.
FACTUAL PROCEDURAL BACKGROUND
Sweetwater Sound, Inc. is a company which supplies musical instruments and professional sound recording systems to businesses and individuals. Surak Aff. ¶ 9. Whitney's first contact with Sweetwater was in June of 1997 when he sent his resume to inquire about job openings within the company. Haas Aff. ¶ 3. Several weeks later, Kristine Haas ("Haas"), Director of Human Resources, John Hopkins ("Hopkins"), Vice-President, and Chuck Surack ("Surack"), President of Sweetwater, interviewed Whitney for a marketing director position. Haas Aff. ¶ 4, Surack Aff. ¶ 3. The company then sent Whitney a rejection letter. Whitney Dep. at 38.
After receiving the rejection letter, Whitney requested that he be reconsidered for a management position. Id. Sweetwater reconsidered Whitney's application and hired him on August 4, 1997 as the Creative Marketing Director. Whitney Dep. at 42. Prior to his employment in this position, Whitney had no marketing experience. Surak Aff. ¶ 8. Before coming to Sweetwater, Whitney was employed as a senior producer with Incredible Universe, a sales manager with Circuit City and a manager with Sears Roebuck Co. Whitney Dep. at 10-12, 14. However, at the time Whitney was hired, Surak believed that his managerial experience in the retail field would enable him to perform his duties as the Creative Marketing Director satisfactorily. Surak Aff. ¶ 8.
As the Creative Marketing Director, Whitney's primary responsibility was to manage the Marketing Department which consisted of a desktop publisher, a website designer and a graphic designer. Id. at ¶ 3. Whitney was also in charge of making contacts with publications in which Sweetwater advertised and overseeing the publication of "Sweet Notes," the company newsletter. Id. at ¶ 4. In addition to these duties, Whitney was responsible for coordinating the publication of a newly created product directory as well as creating a budget for his department. Id. at ¶¶ 6, 7.
As a new employee, Whitney was placed on probation for ninety days. Whitney Dep. at 47. At the end of his probationary period, Whitney completed an insurance enrollment form. Id. When he did not receive an insurance card promptly, Whitney contacted Haas who then called the insurance company. Haas Aff. ¶ 8. Haas was told that Whitney's application was in underwriting because he had indicated that he had a partial permanent disability rating for his right leg due to an accident injury. Id. Whitney told Haas that he was concerned about the delay in receiving his card because he is a diabetic and he needed insulin supplies. Id. Whitney was instructed to go ahead and get his supplies and he would reimbursed as soon as his application was approved. Id.
Up until the problem with his insurance arose, Whitney had not discussed either of these conditions with another Sweetwater employee. Whitney Dep. at 50. At the time he was hired, Whitney did not have any permanent complications from his leg or his diabetic condition. With regard to his leg, Whitney had trouble walking on occasion and could not stand on his feet for long periods of time. Id. at 32. As a result of the injury, he received a twenty-five percent impairment rating. Id. at 31. Similarly, regarding his diabetes, Whitney regulated his condition with insulin but his eyes checked out fine and he had no circulatory problems. Id. at 30, 35. Whitney ordinarily took his insulin in the morning when he ate breakfast and in the evening when he ate dinner. Id. at 36. In describing the effect that his diabetic condition had on his daily activities at Sweetwater, Whitney stated: "It was just a matter of normal upkeep, which is eating and having meals and taking insulin and things on a normal schedule." Id. at 36. However, he alleges that his health made it difficult for him to attend various late-night dinners in which Surak would take employees out to eat in order to discuss work. Id. at 50. On one particular evening, Whitney explained to Surak that he could not go to dinner because he had to go home to take his insulin. Id. at 51. Whitney asserts that Surak then held everyone up and waited on him to return so he could meet them for dinner. Id. at 52. Eventually, Whitney missed dinner on several occasions. Id. at 53.
In November of 1997, Whitney began to experience minor ear problems. Id. at 66. Initially, Whitney did not seek treatment and used only over-the-counter medication. Id. at 67. However, the pain progressively worsened throughout the rest of the year. Id. On January 12, 1998, Whitney called in sick for the first time since the beginning of his employment with Sweetwater. Id. at 72, 80. He spoke to Haas and told her that he was having ear problems and that the pain was getting severe. Id. at 71. The next day, Whitney went to see Dr. Shawn Brennan. Id. at 73. Dr. Brennan was unable to diagnose the source of Whitney's pain and referred him to a specialist. Id. at 75. Whitney called Sweetwater after his appointment and told her that he would not be coming into work. Id. at 78. He saw an ear, nose and throat specialist the following day. Id. at 76. After an examination and some tests, the specialist told Whitney that he needed a MRI because it was possible that he had a brain growth. Id. at 76. A MRI was scheduled for later that week. Id. at 77.
On January 15, 1998 Whitney told Haas the information that he had been given by Dr. Brennan and the specialist. Id. at 79. Later that morning, Surack asked Whitney to come into his office. Id. at 82. Surack told him that he was sorry to hear that he was having medical problems. Id. He then said that he knew the timing seemed weird but Sweetwater did not feel like the employment relationship was working out. Id. Whitney pressed Surack for a more specific reason for the company's decision. Id. He then asked Surack why he was not informed earlier of any dissatisfaction with his performance. Id. Surack responded that the company had thought Whitney would figure it out on his own. Id. at 83.
Sweetwater contends that Haas and Surack actually made the decision to terminate Whitney on January 9th, several days prior to Whitney's absences due to his ear condition. Surack Aff. ¶ 22. However, they were unable to notify Whitney of their decision until January 15th because this was the first day that Whitney returned to work. Id.
In terminating Whitney, Surack indicated that Sweetwater had considered other possible positions for him within the company. Id. In fact, before notifying Whitney that he was fired, Surack, Haas and Hopkins discussed moving him into a sales position. Radke Aff. ¶ 3. They even discussed the possibility of this transfer with Jeff Radke, Vice-President of Sales. Id. However, Radke stated that he did not believe that Whitney had the appropriate skills, knowledge or demeanor to sell for Sweetwater. Id. at ¶ 4. Thus, Surack told Whitney that the company was unable to come up with an alternative position for him. Whitney Dep. at 83. In addition, he told Whitney that he could keep working at Sweetwater while he was looking for another job because everyone liked him and he was a really nice person. Id. When Whitney asked how long he had to look for another job, Surack responded that it should not take him more than a couple months. Id. at 93. He also stated that he would give Whitney a letter of recommendation to help him find another job. Id. at 85. During the course of these discussions, there was no mention of Whitney's health condition, his diabetes or his leg. Id. at 87.
After the meeting, Whitney went back to work. Id. at 94. Haas called shortly thereafter and suggested that he take the rest of the day off in order to prepare for his MRI the next day. Id. The MRI later revealed that Whitney had a tennis-ball sized growth in his head. Id. at 103. Sometime in February, Dr. Brennan prescribed medication for Whitney which completely eliminated his head and ear pain. Id. at 112. During the balance of his remaining time at Sweetwater, Whitney had no further health problems. Id. at 114. He has had no treatment for his condition since February of 1998. Id.
Whitney continued to go into work at Sweetwater for several weeks until he was instructed by Haas and Hopkins not to come until he spoke with Surack. Id. at 115. When Surack did not call, Whitney sent him an email to which Surack did not respond. Id. at 117-18. The last date on which Whitney completed any work for Sweetwater was February 17, 1998. Id. at 124. He was paid through February 27, 1998. Id. at 125.
On March 12, 1999, Whitney filed this action in the Hamilton County Superior Court. Prior to bringing suit, he filed a discrimination charge with the Equal Employment Opportunity Commission and a right to sue letter was issued. Am. Compl. ¶ 18. On March 22, 1999, Sweetwater filed a notice of removal to the United States District Court for the Northern District of Indiana. The case was then transferred to this Court pursuant to 28 U.S.C. § 1406(a) on April 15, 1999.
Whitney's complaint also stated several state law claims including violation of his civil rights under Indiana Code Section 22-9-1-1 et seq, intentional infliction of emotional distress and defamation.
At present, this case is before the Court on the motion for summary judgment filed by Sweetwater on December 27, 1999. Sweetwater asserts that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 12117 and 28 U.S.C. § 1331. Having reviewed the factual background, the Court now turns to a brief overview of the standards governing its decision.
II. STANDARDS A. SUMMARY JUDGMENT
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions 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). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable factfinder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., 975 F.2d at 1294.
The summary judgment standard is applied with added rigor in employment discrimination cases because of the crucial role played by motive, intent and credibility in resolving such cases. Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). However, even when discriminatory intent is at issue, the evidence must not only address the issue of intent, but also relate to the specific employment decision in question. Cowan v. Glenbrook Security Serv., Inc., 123 F.3d 438, 443 (7th Cir. 1997). Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of Sch. Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. ADA STANDARDS
The ADA prohibits discrimination against, and requires an employer to make reasonable accommodations for the known limitations of, an otherwise qualified employee with a disability. 42 U.S.C. § 12112(a), (b). Specifically, the statute provides that no covered entity "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). Unlawful discrimination against an otherwise qualified employee includes both discriminatory discharge and failure to make a reasonable accommodation. Bombard v. Fort Wayne Newspapers, 92 F.3d 560, 563 (7th Cir. 1996).
The ADA proscribes discrimination against only "qualified individual[s] with a disability." Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996). Therefore, for an individual to bring a claim under the statute, he must show: (1) there is a disability, and (2) he is a "qualified individual." To establish the existence of a disability, a plaintiff may show: (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such impairment, or (3) being regarded as having such impairment. Duda v. Franklin Park Pub. School Dist. 84, 133 F.3d 1054, 1058 (7th Cir. 1998).
To be "qualified," a plaintiff must show that he is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment condition that such individual holds or desires." 29 C.F.R. § 12111(8). A two step process is involved in determining whether a plaintiff meets that definition. Bombard, 92 F.3d at 563 (citing 29 C.F.R. app. § 1630.2(m)). First, the court evaluates whether the person satisfies the prerequisites for the position, such as education, experience, and licensing. Id. Second, the court must determine if the person can perform the essential functions of the job with or without reasonable accommodation. Id. These determinations are both made as of the time of the employment decision. Id. It should not be based on speculation that the employee may become unable in the future. Duda, 133 F.3d at 1059.
III. DISCUSSION
To satisfy the threshold requirement of demonstrating that he is a qualified individual with a disability under the ADA, Whitney contends that he is actually disabled because of his diabetes, leg impairment and brain cyst and that Sweetwater "regarded him" as disabled because of these conditions. In response, Sweetwater asserts that Whitney has not put forth sufficient evidence to show that he is disabled under either definition and that Whitney was terminated purely as a result of his incompetence. The Court will address each argument in turn.
A. ACTUAL DISABILITY
To show that an individual has an actual disability under the ADA, he must demonstrate that he (1) has an "impairment" that (2) "substantially limits one or more of the major life activities." 42 U.S.C. § 12102 (2)(A). An impairment is "any physiological disorder, cosmetic disfigurement or anatomical loss affecting one of the body's systems." Harrington v. Rice Lake Weighing Sys., Inc., 122 F.3d 456, 459 (7th Cir. 1997). To be "substantially limited" means that "the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998). To make this determination, the Court may consider the individual's ability to perform major life activities "notwithstanding the use of a corrective device." Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2149 (1999). Stated differently, if an impaired individual uses measures such as medication or a prosthetic device to mitigate the effects of that impairment, he must be evaluated taking into account the effects of the measures on his ability to perform a major life activity. Krocka v. City of Chicago, 203 F.3d 507, 513 (7th Cir. 2000).
In this case, Whitney contends that his diabetes, leg impairment and brain cyst substantially limit his ability to perform the major life activity of working. In order to show a substantial limitation on his ability to work, an individual must demonstrate that his impairment significantly restricts "the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i); Krocka, 200 F.3d at 513. Whitney admits that his diabetic condition, leg impairment and brain cyst do not individually amount to a disability under the statute. Pl.'s Resp. Brief at 10. However, he argues that "collectively and synergistically" these impairments amount to a disability under the statute. Id. (citing Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959, 962 (7th Cir. 1996)).
Whitney's theory of a collective disability is unavailing for the simple reason that he wholly fails to set forth any evidence from which the Court can conclude that his diabetes, leg impairment and brain cyst substantially, or even moderately, limit his ability to work. To the contrary, Whitney's own deposition testimony suggests that Whitney was able to perform his duties as the Creative Marketing Director with minimal restriction from his health conditions. Regarding his diabetes, Whitney testified that during the course of his employment with Sweetwater his daily activities "didn't change" as a result of his condition. Whitney Dep. at 36. Rather, "it was just a matter of normal upkeep, which is eating and having meals and taking insulin and things on a regular schedule." Id. Indeed, the only problem to which Whitney alluded was his ability to attend late-night dinner functions with Surack. On evenings when Whitney was asked to go to dinner, he stated he would respond that he needed to go home and take his medication. He could recall only two instances in which Surack allegedly questioned whether it was in fact necessary for him to go home and on one of those occasions he waited for Whitney to return before taking the group to a restaurant. In addition, Whitney stated that eventually he simply told Surak that he would be unable to attend. Without more, these facts do not establish that Whitney's failure to attend Surak's dinner meetings impacted his ability to fulfill his job responsibilities to such a degree that a reasonable factfinder could conclude that his diabetic condition substantially impaired his major life activity of working.
Similarly, with respect to Whitney's leg impairment, the undisputed facts in this case show that the injury posed virtually no restriction on his ability to work. Whitney testified at his deposition that he was not undergoing any treatment for his leg during the course of his employment with Sweetwater. He further stated that while he had difficulty walking or problems with his leg swelling, this happened only on occasion and the only restriction prescribed by his doctor was that he should work at a desk job whenever possible. Whitney has put forth no facts suggesting that his position with Sweetwater required him to perform tasks outside this limitation.
Finally, in regards to his brain cyst, Whitney testified that he was prescribed medicine which completely eliminated any ear pain or headaches that he was experiencing and he has had no treatment or health complications since February of 1998. In addition, he admitted that the ear and headache pain that he once suffered never caused him to miss work with the exception of a few days. Whether the Court assesses each of Whitney's conditions individually or as a collective unit, these facts do not support a reasonable conclusion that he is actually disabled within the meaning of the ADA.
B. "REGARDED AS" DISABLED
The "regarded as" prong of the ADA's disability definition is intended to provide a remedy for discrimination based on misperceptions about the abilities of an impaired person. Krocka, 203 F.3d at 513. Thus, the Supreme Court has noted that in order to make out a claim under the "regarded as" prong, "it is necessary that a covered entity entertain misperceptions about the individual." Sutton, 119 S.Ct. at 2150. There are two ways in which individuals may fall within this definition of a disability: (1) a covered entity mistakenly believes that a person has an impairment that substantially limits a major life activity, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits a major life activity. Id. at 2149-50.
In this case, it is undisputed that Whitney had a physical impairment. Whitney contends only that Sweetwater mistakenly believed that his impairments substantially limited him in the major life activity of working. To support his claim, Whitney asserts that he told Surack and Haas about his brain cyst just prior to when their decision to terminate his employment was made. Thus, a jury could reasonably conclude that Sweetwater unlawfully terminated his employment based on its misperception about people with physical limitations.
This evidence is insufficient to permit an inference that Sweetwater regarded Whitney as disabled for several reasons. First, it is undisputed that during the course of his employment with Sweetwater Whitney was an insulin-dependent diabetic and that he experienced an impairment rating in one of his legs. According to Whitney's deposition testimony, Sweetwater became aware of these conditions when he filled out the paperwork for his medical insurance plan. Yet, the company treated him like other employees and expected him to fulfill his responsibilities as the Creative Marketing Director which sometimes included long hours and occasional dinners. While Whitney stated that eventually he started missing the dinner functions, he admitted that Surack did not adopt a negative attitude towards him simply because he did not attend the gatherings.
Second, Sweetwater allowed Whitney to remain employed with the company until he gained other employment. This fact suggests that Sweetwater did not regard Whitney as disabled but instead believed he would find another position within a short period of time. Third, Surack offered to give Whitney a letter of recommendation to assist in his job search. He also told Whitney that he thought he should be able to find a new job within a couple of months and that he had tried to locate an alternate position for Whitney within the company but was unable to do so. Finally, Whitney's own deposition testimony reveals that once he was notified of Sweetwater's decision to terminate his employment he continued to "clean up" and "finish up" the last minute details for publication of the company's equipment directory. Again, this fact is evidence of ability, not disability.
In sum, Whitney has failed to present specific facts demonstrating that he is actually disabled by his health conditions or that Sweetwater regarded him as such. At most, the evidence offered supports a conclusion that Whitney did not agree with the company's determination that he was not a "good fit" for the business. Because Whitney has not shown that he is an individual with a disability who can bring a claim under the ADA, Sweetwater is entitled to judgment as a matter of law.
IV. CONCLUSION
Whitney has failed to present sufficient evidence from which the Court could find a genuine issue of material fact for trial in this matter. Therefore, the motion for summary judgment filed by Sweetwater is GRANTED. Having granted summary judgment on Whitney's federal ADA claim, the Court declines to exercise supplemental jurisdiction over Whitney's state law claims for violation of Indiana Code Section 22-9-1-1, intentional infliction of emotional distress or defamation because Whitney has failed to present argument on any of these matters in his brief. These matters are hereby REMANDED to the Hamilton County Superior Court.