Foster v. Arthur Andersen, LLP

• Decision Date: 23 February 1999
• Docket Number: No. 98-1246,98-1246
• Citation: 168 F.3d 1029
• Parties: 75 Empl. Prac. Dec. P 45,773, 9 A.D. Cases 126, 14 NDLR P 168 Juanita E. FOSTER, Plaintiff-Appellant, v. ARTHUR ANDERSEN, LLP, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1029

168 F.3d 1029

75 Empl. Prac. Dec. P 45,773, 9 A.D. Cases

126, 14 NDLR P 168

Juanita E. FOSTER, Plaintiff-Appellant, v. ARTHUR ANDERSEN, LLP, Defendant-Appellee.

No. 98-1246.

United States Court of Appeals Seventh Circuit.

Argued Oct. 29, 1998.

Decided Feb. 23, 1999.

Matthew J. Iverson (argued), Burditt & Radzius, Chicago, IL, for Plaintiff-Appellant.

Jeffrey J. Ward, Keck, Mahin & Cate, Chicago, IL; John A. McDonald (argued), James Y. Wu, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and WOOD, JR. and MANION, Circuit Judges.

MANION, Circuit Judge.

Juanita Foster, a black woman with carpal tunnel syndrome, sued her former employer, Arthur Andersen, LLP, alleging racial and disability discrimination. The district court granted Andersen summary judgment because Foster failed to establish a prima facie case of discrimination on both claims. We affirm.

I. Background

On January 3, 1983, Juanita Foster began working for Andersen as a word processing specialist in the Central Word Processing Department of its Chicago, Illinois office. Andersen is engaged in the business of accounting, tax consulting, and general business consulting. In 1991, Foster was promoted to "work coordinator," which entailed typing and supervising the work of seven or eight word processing specialists. When restructuring occurred in February 1994, Foster became a "senior specialist," which required her to spend 90-95% of her time typing. On March 4, 1994, Foster's supervisor--Florence Castillo--placed her on "final warning status" for one year, purportedly because of insubordination. Around this time she was also warned by an Andersen official--Andrea Leathers--that she would be terminated if her attitude and performance did not improve. On January 31 and February 1, 1995, while Foster was still on final warning status, her new supervisor--Nancy Eichenlaub--met with her to discuss continuing problems with her attitude. Foster's final warning status was renewed in September 1995, purportedly due to "overall poor performance" and her failure to improve. Around September 13, 1995, Foster was assigned a new supervisor--Virginia Jones. A few days later, on September 18, 1995, Foster met with another Andersen official--Gary Beu--who counseled her about her continued need to improve in certain areas. Foster testified at deposition that she understood she was on final warning status at this time, and that if she did not improve she would be terminated.

On September 20, 1995, two days after meeting with Beu, Foster came to work about five minutes late and with a splint on her hand. Jones inquired whether she had carpal tunnel syndrome, but Foster responded that she only had tendinitis. ¹ Notably, Foster did not request any accommodation or change in duties, although she was still typing 90-95% of her working day. On October 25, Foster was almost an hour late for work (due to a doctor's appointment scheduled for 8:20 a.m.), despite Andersen's policy regarding tardiness. ² Foster admits that she knowingly failed to abide by Andersen's requirement that tardy employees call their supervisors to inform them that they will be late within thirty minutes after their scheduled start time. She asserts, however, that she was "at most, six minutes late" in informing Andersen of the delay and that she originally did not anticipate that her 8:20 appointment would cause her to be late for work. Furthermore, while she intended to call Jones earlier, Foster explained that she was on the telephone at her doctor's office setting up an appointment for a bone scan and an MRI. When she eventually called Jones, no later than 9:06 a.m., they had an unfriendly exchange of words, resulting in Jones complaining to Foster that she "had an attitude problem."

Foster eventually arrived at work between 9:15 and 9:30 a.m. and presented a note from her physician--Dr. Samuel Chmell--recommending that she be placed on light typing duty because of her condition, which was then thought to be multiple tendinitis, but which later was diagnosed as carpal tunnel syndrome. In a meeting that day with Jones, who is black, and Eichenlaub, who is white, Foster was suspended for thirty days without pay, allegedly due to her violation of company policies. Later that same day, Jones and Eichenlaub met with the Director of Personnel Administration--Eileen Dowd--and recommended Foster's termination. ³ Dowd agreed that Foster's termination was warranted, and on the next day, October 26, 1995, Jones informed Foster that she was being discharged for failing to follow company procedures. The day following her termination, Foster filed a charge of discrimination with the Illinois Department of Human Rights and the EEOC, alleging that she was suspended and discharged because of her disability. Subsequently, on June 7, 1996, she amended her charge by complaining that her suspension and discharge were also the result of racial discrimination. Foster initiated this suit on September 17, 1996, and Andersen moved for summary judgment on June 20, 1997. On December 29, 1997, the district court granted Andersen's motion, holding that Foster failed to establish the causation prong of a prima facie case of "failure to accommodate" disability discrimination and failed to establish the satisfactory performance and disparate treatment prongs of a prima facie case of race discrimination. See Foster v. Arthur Andersen, L.L.P., No. 96 C 5961, 1997 WL 802106 (N.D.Ill. Dec. 29, 1997).

II. Discussion

A. Disability Discrimination

Foster claims that Andersen failed to reasonably accommodate her disability, carpal tunnel syndrome. ⁴ 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." 42 U.S.C. § 12112(a). Under the ADA, two distinct categories of disability discrimination claims exist: failure to accommodate and disparate treatment. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir.1997). In reasonable accommodation claims, a prima facie case mirrors the statutory elements. The statute provides that an employer discriminates against a qualified individual with a disability by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ...." 42 U.S.C. § 12112(b)(5)(A). Accordingly, to state a prima facie case of "failure to accommodate" disability discrimination, a plaintiff who has suffered an adverse employment action must show that: (1) she was or is disabled; (2) the defendant was aware of her disability; (3) she was otherwise qualified for her job, Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1284 (7th Cir.1996); Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.1996); and (4) the disability caused the adverse employment action (a factor which is implied if not stated). ⁵ See 42 U.S.C. § 12112(a) (no entity shall discriminate against a qualified individual "because of the disability"). ⁶ This fourth element is frequently left unstated because employers will concede that the disability was the reason for the job action but will argue the "otherwise qualified" or "reasonable accommodation" issues. Foster, 1997 WL 802106, at * 4 n. 5. Our prior decisions on adverse action recognize that "because of the disability" is an element of the prima facie case. Hence, an employee cannot state a cause of action for disability discrimination where his employer terminated him for reasons unrelated to (i.e., not because of) his disability. See Hedberg, 47 F.3d at 934. Accordingly, to state a prima facie case of disability discrimination for failure to accommodate the disability, a plaintiff must demonstrate all four of the elements listed above, including the claim that she was discharged because of her disability.

This last element is significant here because Andersen asserts that it discharged Foster because of her violation of company policy, not because of her disability. So we need to determine what the ADA's term "because of the disability" proscribes, and what a plaintiff must prove in order to establish that she was terminated for that reason. To help sort out the proper meaning of that phrase, we look to analogous statutes that use similar language. See United States v. Bates, 96 F.3d 964, 968 (7th Cir.1996), aff'd, 522 U.S. 23, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997). The most analogous statute is Title VII, which also uses the "because of" language. ⁷ See 42 U.S.C. § 2000e-2(a)(1). Congress gave some assistance in determining the meaning of this term in the Civil Rights Act of 1991, which states that an impermissible consideration must not be "a motivating factor" of an employment decision. Civil Rights Act of 1991 § 107(a), Pub.L. No. 102-166, 105 Stat. 1071, 1075 (1991) (codified at 42 U.S.C. § 2000e-2(m)). This statute is not, by its own terms, specifically applicable to ADA cases, as Congress omitted the ADA from the purview of Section 107 of the Civil Rights Act. Nevertheless, several circuits have adopted this language in holding that an ADA plaintiff must show that a "disability (or perception or record thereof) was a motivating factor in the decision to dismiss ...." Newberry v. East Texas State Univ., 161 F.3d 276, 279 (5th Cir.1998); accord Doane v. City of Omaha, 115 F.3d 624, 629 (8th Cir.1997); Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir.1996); Tyndall v. National Educ. Ctrs., Inc. of California, 31 F.3d 209, 214 (4th Cir.1994); cf. Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1457 n. 17 (7th Cir.1995) (noting that the plaintiff's disability was not the factor motivating the adverse action). Likewise, the "motivating factor" standard is relevant in this case.

The next question is when...