Corder v. Lucent Technologies Inc.

• Decision Date: 10 December 1998
• Docket Number: Nos. 98-2722,97-3618,s. 98-2722
• Citation: 162 F.3d 924
• Parties: 8 A.D. Cases 1611 Diane CORDER, Plaintiff-Appellant, v. LUCENT TECHNOLOGIES INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 924

162 F.3d 924

8 A.D. Cases 1611

Diane CORDER, Plaintiff-Appellant, v. LUCENT TECHNOLOGIES INC., Defendant-Appellee.

Nos. 98-2722, 97-3618.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 1998.

Decided Oct. 22, 1998.

Published Dec. 10, 1998. ^*.

John A. Dienner, III (argued), Kubasiak, Cremieux, Fylstra, Reizen & Rotunno, Chicago, IL, for Plaintiff-Appellant in Nos. 97-3618, 98-2722.

Charles C. Jackson (argued), Eric J. Gorman, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee in No. 97-3618.

Jill S. Mulderink (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee in No. 98-2722.

Before BAUER, FLAUM, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Diane Corder worked for Lucent Technologies Inc. and its predecessors, Illinois Bell and AT & T, from 1973 until she was fired in 1996. (Although her employer did not become Lucent until rather late in the story, for the sake of simplicity we refer to the company as "Lucent" throughout this opinion, with the understanding that many of the events took place while AT & T was the corporate entity concerned.) In 1990, Corder began a battle with recurrent severe depression and anxiety. After her discharge, she sued Lucent, alleging it had fired her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The district court entered summary judgment in Lucent's favor, finding that Corder was not a "qualified" individual with a disability and that, even if she were, Lucent had offered a reasonable accommodation, which Corder had rejected. Corder now appeals this ruling and certain aspects of the district court's subsequent award of costs to Lucent. ¹

I

Corder's career with what is now Lucent spanned 23 years. She worked in various of its suburban Chicago offices as an account support representative, which primarily entailed receiving telephone orders from existing customers for additional phone services or equipment and preparing service orders. For 17 years, Corder performed well in her job.

After her mother died in 1990, however, Corder began to experience recurrent bouts of severe depression and anxiety. During 1991, she applied for and received paid sick leave for this condition for a total of 43 weeks. In 1992, she took another 19 paid weeks off. For the remaining weeks of 1992 that she was not on leave, she failed to complete a single workweek. In early 1993, she received another nine paid weeks of sick leave. In the fall of that year, her position was transferred to another office, forcing her to make a longer commute. Because commuting sometimes triggered her panic attacks, Lucent allowed Corder to leave work one-half hour early, and it changed the times during which her telephone service lines were open.

But there were limits to Lucent's flexibility, and it denied her request to take the 1993 winter holiday season off. Corder nevertheless left work ill on November 18, 1993 and refused to return until January 13, 1994. During that period, Lucent scheduled Corder for an independent medical evaluation to determine her fitness for duty. Dr. John Utley, the examining physician, determined that she was "manipulative," not disabled. When Corder did return to work in January 1994, she requested Lucent's permission to leave work two hours early each day because of the stress of her commute. Lucent denied this request, but it allowed Corder to take an unpaid leave of absence until the March 1994 opening of its Vernon Hills satellite office. This office was closer to Corder's home, reducing her commute, and she transferred there.

The shorter commute did not end Corder's attendance difficulties. From her first day at the Vernon Hills office until November 11, 1994, when she left on disability for an unrelated medical problem, Corder missed fully 49% of her scheduled shifts. In October of that year, Lucent scheduled Corder for another independent medical evaluation to try to assess her ability to work. On the advice of her attorney, who apparently (and erroneously) considered such examinations illegal, Corder failed to appear. In light of her medical difficulties, Lucent waited until it received notice that Corder had been medically cleared to return to work on January 23, 1995, and rescheduled its own fitness evaluation for January 19. Again Corder failed to appear. Lucent again rescheduled, this time for January 23. When Corder, now for the third time, refused to make herself available, Lucent placed her on administrative leave with full salary and benefits until her ability to return to work could be confirmed.

Over the next few months, Lucent tried to work with Corder, her attorney, and her psychiatrist to explore Corder's needs for accommodations and to obtain a firm assurance that she could reliably return to work. In April 1995, Corder consented to another independent medical evaluation, but its results regarding her ability to attend work consistently were inconclusive. Lucent's internal Accommodation Review Panel next scheduled a teleconference with Corder for May 12, 1995, during which she presented requests to take brief, frequent breaks during the workday, permission to leave early on Friday afternoons to meet with her psychiatrist, and the ability to take an "unpredictable" amount of time off from work should her symptoms so demand.

The Review Panel felt it could not make these accommodations at the small Vernon Hills office in which Corder had been working. Only one other account service representative was stationed there, and that employee had in the past been forced to work mandatory overtime to help compensate for Corder's lengthy and unpredictable absences. Instead, Lucent offered Corder the opportunity to work in its larger West Chicago facility, where the roughly 100 account service representatives on hand could more easily absorb the burden caused by Corder's likely absences. Corder refused this offer because of the significantly lengthier commute she would have to endure, informing Lucent she would only work at the Vernon Hills office. Corder likewise refused Lucent's offer to work part-time in Vernon Hills because she wanted to retain full salary and benefits.

In June 1995, Corder's paid administrative leave expired, but she received benefits under Lucent's Sickness & Accident Disability Plan for another full year. When these benefits expired in June 1996, Corder was scheduled for another independent medical evaluation to see whether, and under what conditions (if any), she could return to work. Corder had been informed that this examination would last for two hours, but in fact it had been scheduled for three hours. She refused to stay beyond the two hours originally planned. Lucent rescheduled the third hour for Monday, July 1, 1996. That morning, Corder called to say she would not be attending because she had been ill the preceding weekend. Lucent fired her two days later, citing her failure to complete the evaluation.

II

We review the district court's grant of summary judgment de novo. Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 723 (7th Cir.1998). Whereas normally we would view the facts in the light most favorable to the non-moving party, in this case we have relied on Lucent's version of the facts because of Corder's failure to comply with Northern District of Illinois Local General Rule 12(N) in the court below. (In the end, as the district court also noted, this makes little difference, because Corder does not genuinely dispute the facts upon which our analysis rests.)

Rule 12(N) requires parties opposed to summary judgment to file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon...." It also provides that the moving party's facts will be deemed admitted unless controverted by the opposing party. Yet instead of carefully parsing the record and indicating to the court where it supported her view of the facts, as Rule 12(N) unambiguously directs, Corder simply recited her own view of the facts without reference to the record and attached a "verification," swearing that the facts were "true and correct to the best of [her] knowledge, information and belief."

The trial court concluded that this sort of verification did not satisfy Rule 12(N), noting that it could not serve as admissible evidence in the event of trial because it failed to demonstrate how Corder was competent to testify to the facts she alleged. See Fed.R.Civ.P. 56(e). We review the decision to disregard an affidavit on summary judgment just as we review other evidentiary matters, for abuse of discretion. Patterson, 150 F.3d at 723. We have squarely held that failure to satisfy Local Rule 12(N) and failure to provide admissible evidence are each permissible grounds on which to exclude supporting materials from consideration on summary judgment. Chrysler Credit Corp. v. Marino, 63 F.3d 574, 580 (7th Cir.1995). The judge here did no more than strictly enforce the local rule, as was his prerogative, and evaluate the admissibility of the proffered evidence; in neither instance did he abuse his discretion. See Erdman v. City of Fort Atkinson, 84 F.3d 960, 961 (7th Cir.1996); Tatalovich v. City of Superior, 904 F.2d 1135, 1139-40 (7th Cir.1990).

We next turn to the question of whether Corder's claim fell within the ambit of the ADA at all. The ADA protects only "qualified individual[s] with a disability," 42 U.S.C. § 12112(a), and it defines a member of this protected group as someone...