Cheryl K. McPHAUL, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF MADISON COUNTY, Indiana, Arleen Horine, in her official and individual capacity, and Madison County Board of Health, Defendants-Appellees.
No. 99-1092.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 18, 2000. Decided Aug. 16, 2000.
226 F.3d 558
Before BAUER, POSNER, and MANION, Circuit Judges.
Karen S. Horseman (argued), Nelson Nettles, Norris, Choplin & Schroeder, Indianapolis, IN, for Defendants-Appellees.
MANION, Circuit Judge.
Cheryl McPhaul sued her former employer, the Madison County Board of Commissioners, alleging that the County failed to accommodate her disability in violation of the Americans with Disabilities Act (ADA). She also brought an individual capacity suit, under
I.
Cheryl McPhaul is a black woman who worked as a registered nurse for the Women, Infants and Children (WIC) program in Madison County, Indiana. WIC is a federally-funded program that provides health care and nutrition assistance for pregnant women, infants and children. McPhaul’s supervisor was Arleen Horine, a registered nurse who coordinates the WIC program in Madison County.
McPhaul began working for WIC as a nurse nutritionist in April of 1994, where her responsibilities included counseling WIC clients about nutrition and certifying them for program benefits like food supplements. In May 1995, Horine concluded that McPhaul’s performance as a nutritionist was deficient because she was writing the same information on the charts of WIC clients regardless of their varying situations, including the infants, a practice that Horine described as “totally inappropriate.” Thus, Horine transferred McPhaul to the position of intake clerk in May 1995. Intake clerks certify clients for the WIC program in order to secure federal funding. They record the heights and weights of clients so that the nurse nutritionists can properly advise clients about their diets. As an intake clerk, McPhaul continued to receive the same benefits and pay that she received as a nutritionist.
In September 1995, McPhaul received her first performance evaluation as an intake clerk, in which Horine rated her performance “Below Average,” the second lowest rating on a scale of five. Horine’s evaluation states that McPhaul was having “great difficulty in doing her job,” that she was making “gross errors” in charting the
After her termination, McPhaul sued the Board of Commissioners, alleging that she was disabled and that the Board failed to accommodate her disability, in violation of the ADA. She also sued Horine in her individual capacity, under section 1983, alleging that Horine discriminated against her because of her race, thus affecting the terms and conditions of her employment. McPhaul also claimed that Horine failed to protect her from an alleged campaign of racial harassment by her white co-worker, Marcia Shock.
Concerning her ADA action, McPhaul claims that she had been suffering from fibromyalgia since February 1995 (before Horine transferred her from the nutritionist position to the intake clerk position in May 1995). Fibromyalgia is a disease that is similar to chronic fatigue syndrome; its cause is unknown, there is no cure, and the symptoms are entirely subjective and usually involve chronic pain and fatigue. McPhaul’s fibromyalgia symptoms included fatigue, insomnia, shortness of breath and muscle pain, including sore hands and joints. She claims that her condition made it difficult for her to concentrate, bathe, walk, write and work, and that in September 1995 she requested Horine to accommodate her alleged disability by allowing her to arrive at work one hour later or to leave one hour earlier, or both. According to McPhaul, her request was denied. Horine claims that McPhaul never made the request.
On January 11, 1996, McPhaul saw Dr. Van Dellen at the Mayo Clinic. He concluded that it was “possible” that McPhaul had fibromyalgia, and he gave her a card that instructed her to participate in an education program about the disease. McPhaul allegedly presented the card to Horine, but Horine asserts that she was never informed of McPhaul’s disease. McPhaul was not diagnosed with fibromyalgia until February 1, 1996, several days after she was terminated.
McPhaul’s disparate treatment claim under section 1983 is based on several allegations that Horine discriminated against her because of her race by demoting her to the intake clerk position, terminating her from that position, and by treating her differently in regards to other terms and conditions of her employment. Horine disputes these allegations.
In support of her hostile environment claim under section 1983, McPhaul alleges that she was harassed by Shock’s discussion of racially sensitive subjects and her repeated use of the word “nigger” in McPhaul’s presence. McPhaul also alleges that Horine knew about and tolerated Shock’s conduct, and is thus liable in her individual capacity. Horine disputes these allegations as well.
The defendants moved for summary judgment, arguing that McPhaul failed to establish a prima facie case to support her claim under the ADA, or to support her disparate treatment and hostile environ-
“We review the district court’s entry of summary judgment de novo,” Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), and we will view all of the facts and draw all reasonable inferences in favor of the nonmoving party. See id. Summary judgment is proper if the evidence shows 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.”
II.
A. The ADA Claim
McPhaul’s first argument on appeal is that the district court erred in concluding that her reasonable accommodation claim fails because she was not disabled under the ADA. The ADA proscribes discrimination “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, . . . and other terms, conditions and privileges of employment.”
A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
The evidence clearly demonstrates that McPhaul was not able to perform the essential functions of the nutritionist and intake clerk positions. Horine concluded that McPhaul’s performance as a nutritionist was deficient because she was recording the same information on the charts of all of her patients, regardless of the various facts each presented, including the infants. For obvious reasons, Horine described this practice as “totally inappropriate.” McPhaul does not dispute Horine’s conclusion. Moreover, McPhaul does not dispute Horine’s three evaluations that
McPhaul responds by claiming that she would have been able to perform the essential functions of the nutritionist and intake clerk jobs if Horine accommodated her request to arrive at work one hour later, or to leave one hour earlier, or both. Aside from the fact that Horine claims that McPhaul never requested reduced hours, McPhaul provides no medical evidence to support her claim that her requested accommodation would have improved her performance, as none of her physicians ever recommended any work restrictions or accommodations due to her condition.2 All that McPhaul can present in support of her reasonable accommodation claim is her own self-serving testimony, and in this case, that is just not sufficient for a reasonable jury to find that she is a qualified individual with a disability under the ADA. See Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993) (“Self-serving affidavits without factual support in the record will not defeat a motion for summary judgment.“). Therefore, McPhaul’s ADA claim fails.
B. The Section 1983 Claims
McPhaul also argues that Horine is personally liable for discriminating against her because of her race, in violation of the Equal Protection Clause of the
To state a prima facie case under the Equal Protection Clause of the
1. Disparate treatment.
McPhaul first contends that Horine discriminated against her because of her race by treating her differently in regards to the terms and conditions of her employment by: (1) transferring her to the intake clerk position; (2) terminating her from that position; (3) neglecting to train her for the intake clerk position while Shock, a white intake clerk, received more sufficient training; (4) denying her request to work reduced hours while granting Shock’s request for the same accommodation; (5) requiring her to see more clients than Shock; and (6) prohibiting her from wear-
McPhaul’s claims regarding her transfer and termination clearly fail because she does not establish the second and fifth elements of a prima facie case. She does not establish the second element—that she was otherwise similarly situated to other nutritionists or intake clerks who are members of an unprotected class—because she does not identify any co-worker with a similar “Below Average” or “Unsatisfactory” performance rating.3 See O‘Connor v. Chicago Transit Authority, 985 F.2d 1362, 1371 (7th Cir. 1993) (“To make a prima facie case, O’Connor would have to show that another grossly insubordinate worker was treated better than him.“) (citation omitted). And because McPhaul presents no evidence to indicate that Horine’s transfer and termination decisions were motivated by any reason other than McPhaul’s performance deficiencies (which are undisputed), she clearly fails to show that Horine’s decisions were motivated by racial animus. Nabozny, 92 F.3d at 453.
On her inadequate training claim, McPhaul essentially argues that Horine set her up for failure by neglecting to prepare her for the intake clerk position while Horine ensured that Shock was well prepared before she started the job. Horine disputes McPhaul’s claim, and the record contains no evidence that Shock received better (or more timely) preparation for the position. See Slowiak, 987 F.2d at 1295. Moreover, McPhaul does not dispute Horine’s notes that McPhaul was “retrained fully for the job” after her first evaluation, but her performance still deteriorated to the “Unsatisfactory” level. Because the record discredits McPhaul’s argument, and she presents no evidence that Horine acted with racial animus, this claim fails.
McPhaul’s next contention is that Horine discriminated against her when she allegedly denied her request to work a reduced schedule, but granted Shock’s request for the same accommodation. According to McPhaul, Horine’s reason for denying her request was that she already reduced hours for Shock and could not grant the same favor to McPhaul.4 But McPhaul’s actual testimony was that Shock’s time away from work “varied,” and not that she was regularly allowed to work a reduced schedule, which corroborates Horine’s testimony that Shock never requested a reduced schedule, but occasionally took sick leave and vacation days. McPhaul presents no evidence to dispute that Shock used her accrued sick or vacation time when Horine allowed her to take a portion of a day off. And the record demonstrates that by January 1996, McPhaul had used all of her vacation and sick time. Nevertheless, Horine’s decision to allow Shock to take accrued leave, and not to allow McPhaul to take leave that had not been accrued, does not evince that Horine was motivated by a “nefarious discriminatory purpose,” and this claim fails.5
McPhaul’s last claimed instance of disparate treatment is that Horine prohibited her from wearing a nursing uniform while she allowed Shock to wear one. According to McPhaul, Horine told her not to wear a uniform because WIC clients feel more comfortable when WIC staff are dressed in casual clothes. McPhaul does not indicate that she requested to wear a uniform, or that she was ever punished for wearing a uniform, or that she ever asked why Shock was apparently allowed to wear a uniform. The uniform was not a factor in her transfer or her termination, and there is no evidence that the uniform was an important issue at WIC. McPhaul just does not show that Horine’s policy on uniforms was an adverse employment action. See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997) (“Not every negative employment decision or event is an adverse employment action that can give rise to a discrimination or retaliation cause of action under section 1983.“); see also Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999). McPhaul also provides no evidence that Horine’s policy was motivated by racial animus.
We conclude that McPhaul’s claimed instances of discrimination (considered individually and collectively) do not constitute sufficient evidence for a reasonable jury to conclude that Horine discriminated against her because of her race. Thus, McPhaul’s disparate treatment claim fails.
2. Hostile environment.
McPhaul also contends that Horine is personally liable for failing to act to stop Shock’s alleged campaign of racial harassment. McPhaul does not allege any harassment by Horine, but that Shock, her co-worker, harassed her by making racially sensitive and derogatory remarks in her presence while Horine failed to intervene to rectify the situation.
To establish an individual capacity claim under section 1983 against a supervisory official, there must be a showing that the official was directly responsible for the improper conduct, Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983), and “knowingly, willfully, or at least recklessly caused the alleged deprivation by [her] action or failure to act.” Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). However:
[A] defendant’s direct participation in the deprivation is not required. An official satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent.
Id. (quoting Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)). The plaintiff must also show that the supervisor acted (or failed to act) because of the plaintiff’s race. See Nabozny, 92 F.3d at 453.
To prevail on a hostile environment racial harassment claim, the plaintiff must also show that her work environment was both subjectively and objectively hostile.6 See Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (citing
An objectively hostile environment is one that a reasonable person would find hostile or abusive. [Harris, 510 U.S. at 21, 114 S. Ct. at 370]. In determining whether a plaintiff has met this standard, courts must consider all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [Id. at 23, 114 S. Ct. 367].
Adusumilli, 164 F.3d at 361. We shall evaluate McPhaul’s claims according to these standards.
McPhaul alleges that Shock harassed her by discussing racially sensitive subjects and by repeatedly using the racial epithet “nigger” in McPhaul’s presence. Although McPhaul alleges that Shock’s comments occurred on a weekly basis, she presents three specific instances on appeal. In the first instance, Shock repeated to McPhaul a comment (made to Shock by a WIC client) that Horine looked like “a little nigger lady.” The second instance involved Shock calling McPhaul’s attention to the fact that a client was a darkskinned mother who had a lighter-skinned baby. And lastly, Shock told McPhaul that Shock’s family was once harassed by the Ku Klux Klan. According to McPhaul, she complained to Horine about Shock’s derogatory and racially insensitive remarks, and that Horine advised her to “ignore it.” But McPhaul also admitted that Horine later separated her from Shock by moving her to her own office. Horine testified that McPhaul never complained to her about Shock’s alleged harassment, and that she never witnessed Shock using the word “nigger.”
We first consider whether Shock’s remarks created an objectively hostile environment for McPhaul. Shock allegedly used the word “nigger” when she repeated a comment made by a WIC client about Horine,7 and thus Shock did not direct that epithet at McPhaul or anyone else. When such harassment is directed at someone other than the plaintiff, the “impact of [such] ‘second hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff.” Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1144 (7th Cir. 1997). Although McPhaul also alleges that Shock used the word “nigger” on a weekly basis, she never claims that Shock directed it at McPhaul or anyone else, which indicates that Shock tended to repeat the epithet out of her own immaturity and insensitivity, rather than racial animus. Moreover, McPhaul stated twice in her deposition that she considered Shock’s remarks (especially her use of the word “nigger“) to be “offensive,” but she never claimed that they interfered with her work performance, or were physically threatening or humiliating. Thus, the “mere utterance of an . . . epithet which engenders offensive feelings in an employee” is not sufficient to establish a hostile working environment. Harris, 510 U.S. at 21, 114 S. Ct. 367 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)).
Shock’s comment about the child’s skin color was understandably offensive to McPhaul, but it was not about McPhaul, and merely demonstrates Shock’s ignorance of the probable consequences of her careless chatter rather than racial hostility. And Shock’s claim that the Ku Klux Klan once harassed her family does not implicate any hostile intent. We conclude, therefore, that McPhaul fails to present sufficient evidence to support a reasonable inference that Shock’s remarks created an objectively hostile working environment. See Adusumilli, 164 F.3d at 361.
Moreover, there is insufficient evidence to indicate that Horine deliberately or recklessly intended or allowed Shock’s al-
We conclude that McPhaul has failed to establish a prima facie case under the ADA because she is not a qualified individual with a disability. She has also failed to establish a prima facie case under section 1983 because she has not made a sufficient showing that Horine discriminated against her because of her race. Accordingly, We AFFIRM the district court.