OPINION AND ORDER
Plaintiff Judith Hizer is suing her former employer, the South Bend Tribune, for failing to accommodate her disability in violation of the Americans with Disabilities Act (ADA). She also alleges that the Defendant termihated her employment because of her disability and in retaliation for asserting her rights under the ADA and
STANDARD OF REVIEW
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of • law.” Fed.R.Civ.P. 56(a). Summary judgment is the moment in litigation where the non-moving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in her favor. Goodman v. Nat’l Sec. Agency, Inc.,
STATEMENT OF FACTS
The Plaintiff began working for the Defendant newspaper in July 2005 as a part-time editorial coordinator. The Plaintiff worked in the Flagship Publications Department, which consisted of a group of niche publications that the Defendant created, managed, produced, and published. These publications included magazines like Inside Granger and InMichiana.
. In July 2009, the Plaintiff reported to her supervisor, Mike Pozzi, that she was inadvertently sprayed by an automatic air freshener in a workplace restroom and was having an allergic reaction. Pozzi permitted the Plaintiff to go home where she showered and worked at home for the remainder of the work day. Following this incident, the Plaintiff asked the other employees who worked in her department to wear products with less scent and to avoid spraying it while they were at work. The Plaintiff also asked the employees to clean their desks with a natural cleaning product she had provided. The Plaintiffs co-workers complied with these requests. The Plaintiffs desk was also moved near a window that she could open. The Plaintiff began working with the Human Resources Director, Raquel Harris, and the Facilities Manager, Bill Morey, to obtain a restroom facility free from perfumes or other scented sprays, as this continued to be an area where she experienced problems.
In response to this letter, the Defendant designated the second floor library ladies’ restroom as a chemical free restroom and notified its employees not to use the restroom if they were wearing perfumes. On September 29, 2009, the Plaintiff sent an email to Morey and Harris requesting that the aerosol air freshener in the chemical free restroom be removed. On September 30, 2009, Morey responded to Hizer with an apology and stated that the aerosol air freshener had been removed from the chemical free restroom. The Defendant implemented the cleaning agents the Plaintiff requested.
On November 23, 2009, the Plaintiff emailed Harris and Morey and reported that someone had sprayed a chemical air freshener in the restroom that was designated as chemical free. She further reported that it was not yet a huge issue because she was using the restroom behind Human Resources when needed. However, she advised that this would become problematic if she had a fibromyalgia flare-up because stairs would then become an issue. She asked that a notice be placed on the door of the restroom door reminding others that it was designated as chemical free.
On December 14, 2009, the Plaintiff emailed Morey to complain that she was “smelling/feeling something other than the natural air freshener” in the chemical free restroom and she was temporarily using the mezzanine restroom. She stated that she could continue to do so unless she got a fibromyalgia flare-up. (Ex. H, ECF No. 23-9.) Morey responded on December 16, 2009, advising that he had spoken to all of the Tribune managers on December 15 and requested that they “make it clear” to their employees that the designated restroom was to be free of chemicals and perfumes, and that anyone using perfumes should go to a different restroom. He further stated that he was getting a frame for the sign so that it could be mounting on the door outside the restroom so that everyone could see it before entering the restroom. (Id.)
The Plaintiff did not immediately report any further problems with the restroom, but two months later, on February 12, 2010, she became ill after an employee from another department came into her department wearing perfume. The Plaintiff was permitted to go home.
The Plaintiff then met with Harris and the Vice President of Administration, Ed Henry, on February 22, 2010. The Plaintiff presented a note from Dr. Smith written on a prescription pad indicating that the Plaintiff was “allergic to perfumes and some chemicals” and needed washroom facilities that yrere “free of them and not used by people wearing perfume.” (Ex. C, ECF No. 23-4 at 14.) The Plaintiff requested that her entire department be made “perfume-free,” that she be permitted to telecommute, and that she be given a private restroom with a lock and key. According to the Plaintiff, at some point in the meeting, Henry said “something along
In March 2010, the Defendant relocated the Plaintiff away from the rest of her department to a different area of the building, which she shared with Karen Rallo, another employee who suffered from allergies and asthma. Rallo posted a handwritten sign outside the office stating it was an allergy free space, which the Defendant later replaced with a professional sign. Shortly thereafter, the Plaintiff complained about an issue with the designated restroom and the Defendant addressed her complaint with a communication to all employees about the restroom being designated as chemical free.
In January 2011, ten months after being moved to the new office, the Plaintiff missed work after being exposed to fragrances in the workplace. Harris inquired where the Plaintiff had been affected. The Plaintiff responded that people disregarded the signs on the doors to her office and the restroom, and entered wearing fragrances. She requested a restroom with a lock and key and that she obtain her own private workspace. The Defendant first attempted to handle the issues with further, specific instructions to employees about the restricted areas. In April 2011, the Defendant relocated the Plaintiff to a private office. On April 21, the Defendant informed the Plaintiff that the chemical free restroom would be locked and she would be given a key for it. On April 26, the Defendant told the Plaintiff that it was purchasing a High-Efficiency Particular Air (HEPA) Purifier for her.
On May 23, the Plaintiff filed a Charge of Discrimination with the EEOC, alleging that the Defendant violated the ADA, and that it retaliated against her for filing an Equal Pay Act suit in June 2010. One month later, on June 21, 2011, the Plaintiffs department was eliminated and she was laid off. On June 30, the Plaintiff filed a second Charge of Discrimination with the EEOC alleging that she was discharged in retaliation for her 2010 Equal Pay Act lawsuit and for her May 2011 EEOC filing. On December 27, 2011, the Plaintiff filed this lawsuit, alleging that the Defendant failed to reasonably accommodate her disability and laid her off because of her disability and in retaliation for her EEOC filing and her previous lawsuit.
ANALYSIS
A. ADA Failure to Accommodate Claim
To prevail on a failure to accommodate claim, a plaintiff must show not only that (1) she is a “qualified individual with a disability,” but also that (2) the defendant was aware of her disability, and that (3) the defendant failed to reasonably accommodate the disability. EEOC v. Sears, Roebuck & Co.,
Although the Defendant maintains that the Plaintiff did not suffer from asthma and has not established that she is
According to the Plaintiff, the Defendant violated her rights under the ADA when it did not grant her the accommodations she requested during the meeting with Harris and Henry on February 22, 2010. Instead, it was not until April 2011 when she received her own office and a private, locked restroom. The Plaintiff alleges that this delay is evidence that the Defendant did not act reasonably to accommodate her disability. The Defendant counters that the Plaintiff engaged in activities that belied her assertions that she required her own restroom and created confusion regarding the precise contours of her restrictions. For example, she used other restrooms within the building that had not been designated as chemical free and where aerosol air fresheners had not been removed. The Defendant also claims that it readily responded to the Plaintiffs complaints whenever she had a concern about chemicals in the workplace and that it continued to engage in an interactive process to identify an appropriate accommodation.
Drawing on the Seventh Circuit’s decision in Cloe v. City of Indianapolis,
Upon receiving an accommodation request, an employer is not required to provide the exact accommodation requested. Sears,417 F.3d at 802 . Instead, “the ADA obligates the employer to engage with the employee in an interactive process to determine the appropriate accommodation under the circumstances.” Id. at 805 (internal quotation marks omitted). This process brings the. employee and employer together in cooperation to “identify the employee’s precise limitations and discuss accommodation which might enable the employee to continue working.” Gile v. UnitedAirlines, Inc., 213 F.3d 365 , 373 (7th Cir.2000). “If this process fails to lead to reasonable accommodation of the disabled employee’s limitations, responsibility will lie with the party that caused the breakdown.” Sears,417 F.3d at 805 . We do not think that the interactive process broke down here. After being informed of Cloe’s needs, the City provided her with parking at a lot closer to the building. When that did not work out, it gave her a visitor’s pass allowing her to park under the building and another pass allowing her to park on the nearby streets. And when that also did not work out, the City gave her a permanent underground parking spot once one opened up. This is exactly the sort of “interactive process,” id. at 805, that the ADA calls for. In retrospect, of course, it clearly would have been easier to give Cloe a permanent underground pass at the outset. But that is only clear in retrospect. The City had no way of knowing that its other seemingly reasonable accommodations — a different lot, visitor parking, street parking— would be insufficient. And, more importantly, once the City found out that its proposed accommodations were insufficient, it acted with reasonable speed to come up with new ones. We do not think a reasonable jury could find these efforts unreasonable. As a result, summary judgment was proper on this claim.
The Plaintiff began working for the Defendant in 2005. She first mentioned a problem with the fragrances in her environment in July 2009, after she was inadvertently sprayed with an automatic room freshener. She reported to her supervisor that she was having an allergic reaction to the spray, and she was permitted to go home for the remainder of the work day. The Plaintiffs desk was moved near a window that she could open, and co-workers began using a natural cleanser, despite the Plaintiff not having provided the Defendant with any evidence that these changed were necessary to accommodate a known limitation. See, e.g., Cloe,
The accommodation process began, for purposes of the ADA, several months later on September 24, 2009, when the Plaintiff produced a letter from Dr. Smith requesting a restroom accommodation. The Defendant responded by designating a chemical free restroom and notifying its employees not to use the restroom if they were wearing perfumes. A few days later, the aerosol air freshener in the chemical free restroom was removed. The Defendant did not report any issues with the accommodation until two months later, when she complained that someone was using a chemical spray in the chemical-free restroom. However, the Plaintiff also advised that she was not using the designated restroom, but had access to a different restroom. She stated that the alternative restroom would only be problematic if she had a fibromyalgia flare up. There is no evidence in the record that she had any such flare or that she had ever experienced one during her employment with the Defendant. When the Plaintiff made the same complaint a few weeks later— again with the caveat that another restroom was meeting her needs for the time being — the Defendant reminded all man
In February 2010, an employee from a different department came into the Plaintiffs department wearing a fragrance, and she was permitted to work from home for the remainder of her shift. Members of management then met with the Plaintiff to attempt to find- a solution. The Plaintiff provided a letter from Dr. Smith dated February 22, which noted the Plaintiffs sensitivities to fragrances and chemicals, and stated that the Plaintiff needed a washroom facility and workplace that was “free of them and not used by people wearing perfume.” In response, the Defendant relocated the Plaintiffs office to the second floor and posted a sign indicating the workspace was an allergy-free space. She shared this space with another employee who suffered from allergies and asthma. When this accommodation did not work, the Plaintiff was given a private office, a restroom with a lock and key, and an air filter. The Plaintiff complains that the Defendant should have provided her with her own private office and restroom in February 2010 when she initially made the request, not in April 2011. However, an employer is not required to provide the particular accommodation that an employee requests or prefers. The Plaintiff does not identify any reason that the Defendant should have known that providing the designated allergy free office on the second floor along with another employee with allergies was inadequate to provide a workplace “free” from people wearing perfumes and fragrances. The doctor’s note indicated that the Plaintiff should have a washroom and workplace free from perfumes, and the Defendant’s response appears to be a reasonable attempt to provide such a space. The circumstances did not suggest that an immediate modification of the accommodation was necessary to permit the Plaintiff to perform the essential functions of her position.
The Plaintiff complains that she “continued to have problems with” the office space arrangement (Pl.’s Mem. 14), but she does not present evidence that shows she alerted the Defendant to the nature of her problems or their frequency. As far as the Court can discern, the Plaintiff complained in May 2010 about someone using perfume in the restroom, not her office, and the company addressed her concern with a company wide email.
The Plaintiff cites the language from Sears, that an “employer cannot sit behind a closed door and reject the employee’s requests for accommodation without explaining why the requests have been rejected or offering alternatives,”
What became clear only in retrospect is not the standard to which the Defendant is held. The Plaintiffs evidence does not create triable issues of fact whether she was denied a reasonable accommodation in violation of the ADA.
B. Discrimination and Retaliation Claims
The Plaintiff asserts a separate claim of discrimination under the ADA. She complains that her termination from employment on June 21, 2011, was the result of her disability and, more specifically, her requests for an accommodation. Additionally, the Plaintiff advances claims that her termination was in retaliation for filing an EEOC Charge and a lawsuit. A plaintiff may proceed under either the “direct” or “indirect” method of proof to establish these claims. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522,
1. Direct Method of Proof
The Plaintiff first attempts to proceed under the direct method. Accordingly, she must present either direct or circumstantial evidence that her employer’s actions were based on prohibited animus related to her disability. See Dickerson, 657 F.3d
There is no direct evidence that discriminatory or retaliatory animus caused the Defendant to terminate the Plaintiffs employment. See Bray,
The Plaintiffs circumstantial evidence of causation for her discrimination claim is the fact that her requested accommodations were not immediately granted in February 2010, and the Defendant later questioned why the Plaintiff was using restrooms other than the designated chemical free restroom. These interactions with her employer provide no dis-cernable connection to the termination of her employment. In fact, the Plaintiff had already received a private office and a private, locked restroom by the time her employer eliminated her position. No reasonable jury could infer a causal link between the interactive process, which had been ongoing since 2009, and the Plaintiffs termination in June 2011 when her department within the organization was eliminated.
The Plaintiffs retaliation claim suffers from the same lack of evidence. Apart from mere speculation, she offers nothing to show that her position was eliminated because o/her previous lawsuit, her EEOC Complaint, or her requests for accommodations. For example, she speculates that because her termination followed protected activity, her termination was the result of that activity. “‘The mere fact that one event preceded another does nothing to prove that the first event caused the second.... [Ojther circumstances must also be present which reasonably suggest that the two events are somehow related to one another.’ ” Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C.,
The Plaintiff first requested an accommodation for her medical condition in 2009. This was around the same time that she filed a charge of discrimination alleging a violation of the Equal Pay Act. She filed a lawsuit related to this charge in June 2010. Her employment was not terminated until June 2011, so there is no temporal proximity to these events. Although the termination was closer in time to her EEOC filing alleging an ADA violation, there is nothing the Plaintiff can point to that reasonably suggests that the Defendant’s actions were motivated by anything other than business judgment. At the time the Defendant terminated the Plaintiffs employment, her department was continuing to lose money and the magazines the Plaintiff edited ceased publication altogether. Pozzi, the Plaintiffs supervisor, was the only employee in the Flagship Division who did not lose his job before the Plaintiff did — he was laid off a short time later. The Plaintiff complains that the Defendant should have transferred her to another department or advised her that she could apply for other positions, but does not designate any evidence in support of these assertions. Henry stated that for a reduction in force, all employees were encouraged to apply for other jobs that might be open. (Dep. of Ed Henry 61, EOF No. 37-1.) Regardless of whether the Plaintiff was encouraged to apply for another job, she has made no effort to identify whether another position was open when her magazines were shut down, whether she would have been qualified for the position, or if she would have actually applied for the position. Because she does not present evidence that would suggest she was entitled to another position, the fact that she was not transferred does not create an inference that retaliatory motive was at play.
The Plaintiff also thinks it suspicious that Harris commented during the Plaintiffs last office move that it would only be temporary. This vague statement, even if it permits an inference that Harris knew that layoffs were imminent and that the Plaintiff would be losing her job, does not speak to the reason for the layoff and certainly does not reveal a retaliatory or discriminatory motive. When there is “no hint of disability discrimination in the content or context” of the statement, no rational jury could consider it to be evidence of discriminatory animus. See Bunn v. Khoury Enters., Inc.,
It would strain the limits of inference to find that the Plaintiff has presented sufficient evidence under the direct method of proof to present her retaliation and discrimination claims to a jury. The Plaintiffs designated evidence does not show that her protected activity was a motivating factor in the Defendant’s decision to terminate her employment.
2. Indirect Method of Proof
The Plaintiff also attempts to prove her claims through the indirect method of proof. Under this method of proof, a plaintiff must first establish a prima facie case of discrimination by showing that (1) she is disabled under the ADA; (2) she was meeting her employer’s legitimate employment expectations; (3) she suffered an adverse employment action;
In support of her prima facie case, the Plaintiff argues that two similarly situated non-disabled individuals in her department, Tim Stonecipher and Joe Hektor, were offered positions in other departments and were not laid off when the Flagship Division was eliminated. When a plaintiff is relying on the evidentiary boost that a prima facie case provides to infer that discriminatory animus prompted the employment decision, the similarly situated employee she compares herself to must be “directly comparable to the plaintiff in all material respects.” Coleman v. Donahoe,
The Plaintiff was a part-time editorial coordinator. Stonecipher was a full-time graphic designer in the Flagship Division and transferred to a position of graphic artist in the News and Editorial Department on July 12, 2010, eleven months before the Flagship Division was eliminated: Hektor was employed full-time by the Tribune as an Advertising Production Designer in the Advertising Department, not the Flagship Division. He transferred to the Ad Services Department in June 2010, a full year before the Flagship Division was eliminated. Hektor changed positions again in February 2011 when he became a Graphic Designer/Team Leader on the night shift. The Plaintiffs argument regarding these individuals appears to be that they were offered other positions before the elimination of the Flagship Division so they would not be laid off. This is beside the point. Even if true, the differing treatment would not create a prima facie case of discrimination unless Stonecipher and Hektor were appropriate comparators. But the Plaintiff makes no attempt to explain how the identified individuals, full-time employees with different jobs, were similarly situated to her. The Plaintiffs argument — or more precisely her lack of argument — suggests that she believes that by simply identifying any employee who avoided being laid off with the elimination of the Flagship Division, she has created an inference of impermissible motive. Even using a flexible approach to the similarly situated requirement, this showing does not provide “enough common factors ... to allow for a meaningful comparison in order to divine whether discrimination was at play.” Barricks v. Eli Lilly & Co.,
Even if the Court looked past the prima facie requirements, the Plaintiff would still have to present evidence that the Defendant’s stated reason for terminating her employment was a pretext for illegal action. The Defendant’s designated evidence shows that publications in the Flagship Department cost more to produce than its advertising revenues could support. Despite efforts to reduce expenses, the gap between revenues and expenses continued to get larger. The entire Department .was eliminated, and the magazines the Plaintiff worked on as editorial coordinator were no longer produced or published.
“Pretext means a dishonest explanation, a lie rather than an oddity or an error. Pretext is more than a mistake on th.e part of the employer; it is a phony excuse. Showing pretext requires proof that the defendant’s explanation is unworthy of credence.” Faas v. Sears, Roebuck & Co.,
The Plaintiff has not presented circumstances from which intentional discrimination or retaliation can be inferred under the indirect, burden shifting method of proof.
C. Hostile Work Environment
The Plaintiffs two-count Complaint does not contain any claim that she was subjected to a hostile work environment. Hostile work environment claims are different from disparate treatment claims because the issue is not whether particular acts constitute employment discrimination or retaliation, but whether the overall environment in which a plaintiff worked was illegally hostile. Cf. Sitar v. Ind. Dep’t of Transp.,
Even if the Court looks past these problems, the Plaintiffs claim would fail on its merits. The Seventh Circuit has not yet decided whether a claim for hostile work environment is cognizable under the ADA. See Mannie v. Potter,
The Plaintiff presents a litany of complaints that she says show that her “disability was not respected or appreciated by at least some of her fellow employees, including Ed Henry, a vice president, who on several occasions came into her office wearing cologne.” (Pl.’s Mem. 24, ECF No. 35). She cites a date in September 2010 when Henry used her office as a shortcut to visit another employee, and at least two other times when she believes this happened. The Plaintiff maintains that on numerous occasions for the first few months after she was moved to the chemical free office, employees from another department would enter the office to speak to another employee, whose office was inside her area. On several of these occasions, she had to leave the office for an extended period of time. Employees would use the copier in her area until she placed a sign on it asking them to use a different copier. A younger employee retrieved items from a printer in the area on numerous occasions, outside venders used the area as a shortcut, and employees used the freight elevator by the secondary door and sometimes congregated to talk. The Plaintiff does not indicate that these individuals were wearing fragrances or that their actions caused her problems. She states that other people wearing fragrances would meet outside the ladies’ restroom and the vending areas near her office door. She maintains that these “situations often made me ill, and caused the need to ... complain repeatedly about things over a period of about 19 months.” (Id. (citing Interrogatory Responses).)
In the instances cited above, there is no suggestion that the Plaintiffs coworkers acted out of an animus for her
In addition to the above conduct, the Plaintiff alleges behavior that could potentially be construed as displaying an animus based on her disability. She claims that, three times, a scented product was “poured” on the hallway carpet outside her door, and that the scent made her ill. The Plaintiff appears to assume that the person who did this was targeting her. However, she does not explicitly make this claim, and the product could have just as readily been unintentionally left by the outside cleaning crew or others due to carelessness. Thus, the Court is left with only speculation regarding the motive behind the scented product on the carpet, which is meaningless because “[i]f the subjective beliefs of plaintiffs in employment discrimination cases could, by themselves, create genuine issues of material fact, then ■> virtually all defense motions for summary judgment in such cases would be doomed.” Mlynczak v. Bodman,
The Plaintiff has not put forth facts upon which a reasonable jury could find the Defendant liable to the Plaintiff because she was subjected to a hostile work environment on the basis of her disability.
CONCLUSION
For the reasons stated above, the Court GRANTS the Defendant’s Motion for
Notes
. The Plaintiff maintains that her doctor sent the Defendant a note on March 31, 2010, asking that a survey be completed identifying all the chemicals being used in the building because the Plaintiff was still struggling with asthma due to chemicals and perfumes outside of her "safe” room. (PL’s Mem. 2, ECF No. 35.) The Plaintiff's designated evidence does not support her position that the Defendant received this correspondence. The Plaintiff cites to the deposition of Henry, but he testified he was not sure if there was a form, did not recall talking to Harris about it, and thus did not know if the survey had been completed. (Henry Dep. 45-47, ECF No. 35-3 at 6.)