Case Information
*1 Before K ANNE and S YKES , Circuit Judges, and E LLIS , Dis- trict Judge . [*]
E LLIS , District Judge
. Proctor Health Care, Inc. (“Proctor”) terminated Larry Hooper, M.D. in response to Hooper’s non- action after he was cleared by a psychiatrist to return to *The Honorable Sara L. Ellis, of the United States District Court for the Northern District of Illinois, sitting by designation.
work, repeatedly told that the psychiatrist had cleared him, and warned that if he did not contact Proctor by a certain date regarding his return to work, he would be fired. Hoop- er sued Proctor under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. , and the district court granted summary judgment to Proctor, finding that Hooper had not asserted a failure to accommodate claim in his com- plaint and that there was no genuine issue of fact on his dis- ability discrimination claim. Hooper appeals, arguing that the district court should have considered his failure to ac- commodate claim on the merits and that it ignored disputed facts in the evidence on his discrimination claim. But Hoop- er’s complaint failed to mention any facts to put Proctor on notice that he was pursuing a failure to accommodate claim, which fails even when considered on the merits because Hooper did not require accommodations. Additionally, the district court properly granted summary judgment on the disability discrimination claim regardless of the method un- der which the claim is examined, because Hooper failed to create an issue of fact that would raise an inference of disa- bility discrimination. Accordingly, we affirm.
I. BACKGROUND
Because this is an appeal of the district court’s summary
judgment decision, we summarize the facts in the light most
favorable to Hooper, who was the non-moving party, and
draw all reasonable inferences in his favor.
Malin v. Hospira,
Inc.
,
Hooper, a family practice physician, received a diagnosis of bipolar disorder in 2000. He must regularly see a psy- chologist to maintain his medical license in Illinois. In 2009, Proctor hired Hooper to work in its First Care outpatient clinics in Peoria, which provide urgent and primary care to walk-in patients and those with appointments.
On April 16, 2010, Hooper arranged to meet with Mandy Carballido, Proctor’s Director of Human Resources. The meeting was prompted by an incident Hooper had with a neighbor about where he had parked his car, during which Hooper made derogatory comments and yelled at the police. Because he did not want a similar incident to occur at work, Hooper thought he needed time off from work. In the meet- ing, Hooper revealed his bipolar disorder for the first time to anyone at Proctor. According to Hooper, Carballido re- marked in response that she had a contentious relationship with her bipolar mother-in-law. Hooper inquired about Proctor’s long term disability benefit, and the two discussed the possibility of a medical leave of absence.
After meeting with Hooper, Carballido informed her su- pervisor, Linda Buck, Proctor’s Vice President of Human Re- sources, of the conversation. Carballido and Buck decided to place Hooper on an immediate paid medical leave of ab- sence and to help him apply for long term disability benefits. Carballido immediately told Hooper of the decision. Hooper determined he was not eligible for long term disability, however, because his condition was a preexisting one.
On April 20, 2010, Hooper met with his psychiatrist, Dr. Karen Kyle. She agreed that Hooper should be placed on leave and wrote him a note to be off work for medical rea- sons. On May 14, 2010, Dr. Kyle determined that Hooper could return to work and wrote him another note to that end. But Proctor determined that Hooper should continue on paid leave until an independent medical examination confirmed Hooper was fit to return to work. Dr. James Cavanaugh, a psychiatrist at Rush University Medical Cen- ter, conducted that examination on August 2 and 3, 2010. Hooper left the examination believing he would not be able to return to work until Proctor received Dr. Cavanaugh’s re- port, which Hooper thought would take three or four weeks. But on August 4, Dr. Cavanaugh orally informed Carballido that Hooper could return to work, indicating that a written report would be issued by August 19. Dr. Cavanaugh com- pleted his report on August 18. Although Dr. Cavanaugh found Hooper fit to return to work without any specific re- strictions, he also suggested Proctor could make certain ac- commodations to decrease Hooper’s stress level and poten- tially improve Hooper’s performance in the workplace. These included modifying Hooper’s work hours to include more regular weekday hours so that Hooper did not feel as isolated, allowing Hooper to establish continuous contact with patients instead of only assigning him to walk-in pa- tients, establishing regular evaluation sessions to provide Hooper with feedback on his performance, allowing Hooper to take sick days as medically indicated in a way that did not make him feel ostracized, and ensuring that Hooper had a supportive supervisor.
Upon receiving Dr. Cavanaugh’s oral report that Hooper was fit to return to work, Diane Kurtz, Proctor First Care’s administrative assistant, left Hooper two messages on Au- gust 4 or 5 indicating he should return to work the following day. Kurtz left him an additional message and tried to leave a fourth message but Hooper’s voicemail box was full by that time. Proctor also tried contacting Hooper by phone the week of August 9. Hooper did not respond or report for work despite being in the Peoria area from August 4 through 13. Hooper’s mother died on August 12, and so Hooper traveled to Marquette, Michigan on August 13 to attend the funeral and to her affairs, remaining there until August 18. Hooper testified that he thought he left a message that his mother had passed away and he was out of town attending the funeral with Kurtz or Todd Baker, Proctor’s Executive Director of Ambulatory Care Services, but he acknowledged that he was not sure whether that call actually occurred. Hooper did not introduce any concrete evidence to substan- tiate this call.
On August 16, Baker sent Hooper a letter stating that Hooper had been cleared for work as of August 5, that hu- man resources had been contacting him since then but had not heard from him, and that his employment would be terminated if he did not contact Proctor by the close of busi- ness on Friday, August 20. Because Proctor had not heard from Hooper by August 20, Proctor terminated Hooper’s employment on August 23, effective August 20, and sent him a termination notice to that effect.
Despite having returned to Peoria on August 18, Hooper only retrieved Baker’s August 16 letter on August 24. He then tried to contact Baker and Kurtz. Kurtz passed Hoop- er’s message on to Proctor’s Human Resources Department. On October 7, 2010, Hooper filed a request that his termina- tion be reviewed. But that request was denied on October 12 because it was not made within seven days of his termina- tion, as required by Proctor policy.
After filing an administrative charge alleging disability discrimination and retaliation, Hooper filed suit against Proctor in the Central District of Illinois. In his complaint, Hooper claimed that the August 16, 2010 letter was pretext to terminate his employment because he was a qualified in- dividual with a disability under 42 U.S.C. § 12111(8) and the Illinois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. 5/1- 102. The district court granted summary judgment for Proc- tor, finding that Hooper’s disability discrimination claim failed, that his IHRA claim was waived, and that he had not asserted a failure to accommodate claim in his complaint. Hooper does not challenge the decision with respect to the IHRA claim.
II. ANALYSIS
We review a district court’s grant of summary judgment de novo . Taylor-Novotny v. Health All. Med. Plans, Inc. , 772 F.3d 478, 488 (7th Cir. 2014). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A. Failure to Accommodate Claim In his complaint, Hooper generally alleged disability dis- crimination under the ADA. Then, in response to Proctor’s motion for summary judgment, Hooper argued that Proctor failed to reasonably accommodate his disability, citing 42 U.S.C. § 12112(b)(5)(A). He claimed that Proctor should have discussed with him Dr. Cavanaugh’s suggestions of accom- modations that would improve Hooper’s work environment rather than terminating him. The district court found that Hooper had not raised a failure to accommodate claim in his complaint, having failed to cite to 42 U.S.C. § 12112(b)(5) or allege any facts that would give rise to such a claim. The court further stated that even if Proctor was required to make the accommodations recommended by Dr. Cavanaugh, Proctor could not because Hooper never report- ed to work after those recommendations were made. Thus, regardless of whether Hooper waived the claim, the court would have found for Proctor.
On appeal, Hooper argues that the district court erred in finding the claim waived. He contends that the complaint alleged that he was a qualified individual with a disability and therefore included a failure to accommodate claim be- cause the definition of a qualified individual is one who, “with or without reasonable accommodation , can perform the essential functions of the employment position that such in- dividual holds.” 42 U.S.C. § 12111(8) (emphasis added).
Although Hooper need not have pleaded legal theories in
his complaint, he was required to plead sufficient facts to
put Proctor on notice of his claim.
Reeves ex rel. Reeves v. Jewel
Food Stores, Inc.
,
But even a properly preserved failure to accommodate
claim would fail under the circumstances here. To establish
failure to accommodate, Hooper had to present evidence
that (1) he is a qualified individual with a disability, (2) Proc-
tor was aware of his disability, and (3) Proctor failed to rea-
sonably accommodate his disability.
Reeves
, 759 F.3d at 701.
Although a “qualified individual” is an individual who
“with or without reasonable accommodation, can perform
the essential functions of the employment position that such
individual holds or desires,” 42 U.S.C. § 12111(8), only those
individuals with “physical or mental limitations” who are
“otherwise qualified” for the job at issue are entitled to rea-
sonable accommodations. 42 U.S.C. § 12112(b)(5)(A);
Brum-
field v. City of Chicago
,
Here, Dr. Cavanaugh cleared Hooper to return to work without accommodations. See R330 (“Dr. Hooper is fit to re- turn to full-time practice without any specific medical or *9 9 psychiatric restrictions.”). Dr. Cavanaugh did recommend certain accommodations that he thought could “result in Dr. Hooper’s experiencing less stress in the workplace and an even improved level of medical practice.” Id. But these rec- ommendations cannot form the basis of a failure to accom- modate claim because Dr. Cavanaugh specifically found that Hooper was qualified for his position without accommoda- tions. See Brumfield , 735 F.3d at 633 (“A disabled employee who is capable of performing the essential functions of a job in spite of her physical or mental limitations is qualified for the job, and the ADA prevents the employer from discrimi- nating against her on the basis of her irrelevant disability. But since the employee’s limitations do not affect her ability to perform those essential functions, the employer’s duty to accommodate is not implicated.”). Hooper’s failure to ac- commodate claim thus would fail if considered on the mer- its. [1]
B. ADA Discrimination Claim
Under the ADA, Proctor was prohibited from discrimi-
nating against Hooper “on the basis of disability.” 42 U.S.C.
§ 12112(a). Hooper could proceed under either the direct or
indirect method of proof to establish his claim.
Taylor-
Novotny
,
Although we have recently questioned the continued utility of the direct and indirect methods of proof in analyz- ing discrimination claims, we have continued to separately consider them when reviewing the grant of summary judg- ment. See Simpson v. Beaver Dam Cmty. Hosps., Inc. , 780 F.3d 784, 789–90 (7th Cir. 2015). Nonetheless, the ultimate ques- tion under both methods, and that which is relevant here, is “whether a reasonable jury could find prohibited discrimina- tion.” Bass v. Joliet Pub. Sch. Dist. No. 86 , 746 F.3d 835, 840 (7th Cir. 2014).
Indeed, Hooper’s arguments do not neatly fit into either the direct or indirect method here or before the district court. Although he set forth the legal standard for each method in his brief below, he never specified under which method he was proceeding and instead generally argued that Proctor sought a reason to fire him as soon as it learned of his bipo- lar disorder. The district court analyzed his claim under the indirect method only. On appeal, Hooper does not directly address why the district court’s decision in granting sum- mary judgment based on his failure to meet the indirect method of proof was wrong. Regardless of how Hooper’s claim is analyzed, however, he has not established that a reasonable juror could find that Proctor discriminated against him on the basis of his disability.
Under the indirect method, Hooper presented no evi-
dence of similarly situated individuals. Indeed, he does not
even mention this element of the
prima facie
case on appeal.
Lack of evidence on this element is sufficient to end the in-
quiry under the indirect method, as it is Hooper’s responsi-
bility to identify and present evidence of a comparator at the
summary judgment stage.
Bunn
,
Proctor undertook numerous efforts to notify Hooper
that he was cleared to return to work and, ultimately when it
did not hear from him, told him by letter that if he did not
contact Proctor by a certain date, it would terminate his em-
ployment. Hooper has not presented any evidence to un-
dermine the fact that Proctor believed that Hooper could re-
turn to work on August 4 and that Hooper’s failure to return
to work or contact Proctor as directed justified termination.
See Lindemann v. Mobil Oil Corp.
, 141 F.3d 290, 296 (7th Cir.
1998) (absenteeism is legitimate reason to terminate employ-
ee);
Rush v. McDonald’s Corp.
, 966 F.2d 1104, 1115 (7th Cir.
1992) (employer has legitimate interest in employee’s at-
tendance and reliability). Although Hooper asks us to specu-
late about the reasons for Proctor’s actions, we do not sit as a
“super personnel department” with the ability to do so.
Millbrook v. IBP, Inc.
,
Alternatively, to the extent Hooper’s claim could be con- sidered under the direct method, it fails under that analysis as well. Hooper argues that Proctor was biased against him because of his bipolar disorder, as evidenced by Carballido’s remark in April 2010 that she had a contentious relationship with her bipolar mother-in-law and the fact that his person- nel file grew after he met with Carballido. He argues that this bias caused Proctor to seek a reason to discharge him in August 2010 and make Proctor unwilling to work with him when he inquired about his work status on August 24.
But Carballido’s comment was a stray remark and is in-
sufficient to support a discrimination claim.
See Fleishman v.
Cont’l Cas. Co.
, 698 F.3d 598, 605 (7th Cir. 2012) (“[I]solated
comments are not probative of discrimination unless they
are ‘contemporaneous with the discharge or causally related
to the discharge decision-making process.’” (quoting
Gleason
v. Mesirow Fin., Inc.
,
Further, Hooper has failed to show any type of connec-
tion between any alleged discriminatory animus by Proctor
and the termination decision.
See Good v. Univ. of Chicago
Med. Ctr.
,
Ultimately, because no reasonable juror could find pro- hibited discrimination under any circumstances in the rec- ord, we conclude that the district court properly granted summary judgment for Proctor on Hooper’s ADA discrimi- nation claim.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
[1] Although the district court did not consider this alternative ground, on appeal we can address any ground that was preserved and is supported by the record. See Hester v. Ind. State Dep’t of Health , 726 F.3d 942, 946 (7th Cir. 2013). Proctor properly raised this argument in its reply brief below, after Hooper argued for the first time in response to Proc- tor’s summary judgment motion that Proctor had failed to accommodate his bipolar disorder.
[2] We have not yet addressed whether the 2008 amendments to the ADA, which changed the statutory language from prohibiting discrimi- nation “because of” a disability to prohibiting discrimination “on the basis of” a disability, affects the standard required to prove causation. See Silk v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524 , 795 F.3d 698, 705–06 (7th Cir. 2015). The question has not been presented in this case, the answer would not affect the outcome, and so we decline to re- solve the issue here.