Kampmier v. Emeritus Corporation
| Decision Date | 02 January 2007 |
| Docket Number | No. 06-1788.,06-1788. |
| Citation | 472 F.3d 930 |
| Parties | Shannon KAMPMIER, Plaintiff-Appellant, v. EMERITUS CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kimberly A. Carr (argued), Best, Vanderlaan & Harrington, Joliet, IL, for Plaintiff-Appellant.
Cathryn E. Albrecht, Paul Patten (argued), Jackson Lewis, Chicago, IL, for Defendant-Appellee.
Before EASTERBROOK, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.
Emeritus Corporation ("Emeritus") employed Shannon Kampmier as a practical nurse for six months.1 Emeritus terminated Kampmier for job abandonment because she did not call or show up for three of her shifts and failed to provide Emeritus with a doctor's note. Kampmier brought a 10-count complaint against Emeritus including ADA, Title VII, and ERISA claims. Emeritus moved for summary judgment, which the district court granted. Kampmier now appeals. For the following reasons, we affirm in part and reverse in part.
Emeritus, an operator of assisted living communities, employed Kampmier as a licensed practical nurse at the Loyalton of Rockford ("the Loyalton"), in Rockford, Illinois from March 2003 until September 2003. During that period, Lynelle Lawson was Emeritus' Regional Director of Operations and Divisional Director of Operations. Lawson oversaw the operations of multiple facilities, including the Loyalton. Michelle See, the Human Resources Director, was responsible for employee relations at the Loyalton and approved the hiring decisions for executive directors and department heads. Lena Badell served as Executive Director of the Loyalton, overseeing the daily operations and the Loyalton's staff. Badell reported directly to Lawson, who hired Badell for her position. During Kampmier's employment, she reported directly to the Director of Nursing. In 2003, three different women held that position: Karen Grover, Jenni Stine, and Valerie Skinner.
Kampmier alleges that Lena Badell, who is a lesbian, made frequent offensive, sexually perverse comments to Kampmier and other women throughout Kampmier's employment. Kampmier alleges that Badell referred to herself as "queer little old me" and made numerous references to being gay. Kampmier also asserts that Badell made sexually explicit comments such as, "I can turn any woman gay," "I can eat you out," "I eat [my girlfriend] out every night," and "I make [my girlfriend] come every night within the first five minutes." Kampmier further alleges that Badell made jokes about being gay, commented to Kampmier about another female employee's "boobs," and described how she liked them. In addition to the comments, Kampmier claims that Badell grabbed her buttocks thirty times, hugged her fifty to sixty times, grabbed her around the arms, jumped in her lap ten times, kissed her on the cheek, and rubbed up against her during Kampmier's employment at the Loyalton.
Emeritus' employee handbook, which was in effect during Kampmier's employment, outlined a harassment prevention policy that advised employees to report harassment or discrimination to their immediate supervisors, the executive director, the business office director, or any member of Emeritus' management team. Under the policy, if a complaint was reported to management, Emeritus was required to perform an investigation and subsequently inform the aggrieved employee of the outcome of the investigation. Kampmier contends that she complained about Badell's behavior to Badell, Grover, and Stine. Grover says that she reported Kampmier's claims to Lawson, but Lawson denies ever receiving them. Emeritus did not discipline Badell while at the Loyalton.
Kampmier suffers from endometriosis, a condition where tissue similar to the lining of the uterus (the endometrial stroma and glands, which should only be located inside the uterus) is found elsewhere in the body. She was diagnosed when she was 16 years old and has had an average of one to two surgeries a year since that time, including fifteen laparoscopic surgeries and cervical scrapings. As a result of the endometriosis, Kampmier had pregnancy complications with both of her children. She also had an ectopic pregnancy in 2000. Kampmier's endometriosis flares up a week or two before and after her menstrual cycle, during painful periods, and for a month and a half after surgery. For two weeks after her surgery in 2003, Kampmier had difficulty walking, cleaning her house, caring for her child, engaging in sexual intercourse or driving (she was on Vicodin). When Emeritus hired her, Kampmier did not indicate that she required accommodation for any physical impairment and did not inform Emeritus of her condition. Kampmier did not take off any time from work for illness between March and late-August 2003.
In 2003, Kampmier was scheduled to work on Friday, August 29 and Monday, September 1, which was Labor Day weekend. On Thursday, August 28, 2003, Kampmier went to her physician, Dr. Higgins, because she was in pain. He recommended that Kampmier have a hysterectomy to correct her endometriosis. Dr. Higgins informed Kampmier that he would have someone contact her on Monday, September 1, or Tuesday, September 2, to set up the hysterectomy. In the interim, he instructed her to take off work.
After speaking with Dr. Higgins, Kampmier called Badell at home to cancel her Friday and Monday shifts. Kampmier told Badell that she might need a hysterectomy and that it would be scheduled as soon as possible. Badell said that was fine and that Badell had recently undergone a hysterectomy and knew exactly what Kampmier was going through.
On Friday, August 29, Badell contacted Kampmier and requested a doctor's note.2 Kampmier called Dr. Higgin's office and spoke with his office nurse who told Kampmier that the doctor was out of the office. Kampmier asked the nurse to call Badell; however, Badell never received a phone call or a note and Kampmier never followed up with the doctor, Badell, or the nurse.
On September 2, Kampmier called Badell and informed her that surgery was scheduled and she would need some time off, indicating that it might be two weeks, three weeks, or eight weeks depending on whether she had a hysterectomy or laparoscopic surgery.
Later that day, Badell and Skinner called Kampmier's home. Kampmier's mother answered and told Badell and Skinner that Kampmier was sleeping. Badell and Skinner asked Kampmier's mother to tell Kampmier that she needed to send a doctor's note to the Loyalton. Badell testified that she made the phone call because another nurse claimed to have seen Kampmier at a Labor Day parade. Kampmier's mother promised that Kampmier would call the Loyalton as soon as Kampmier woke up. Kampmier did not return Badell's phone call.
On September 5, several hours after the beginning of Kampmier's scheduled shift, Kampmier called Badell and told Badell she was having surgery that evening. She told Badell that she would be back at work in two weeks. Kampmier did not come to work or call in for her shifts on September 6-8. Badell and Skinner contacted Kampmier's doctor's office and asked that the office fax a note, but they never received one. Badell and Skinner then contacted Lawson and informed her of the situation. Lawson told them to speak with the human resources director, Michelle See, to discuss the process to follow.
Skinner told See that Kampmier was not showing up for her scheduled shifts and had failed to provide Emeritus with a doctor's note. Together, See, Skinner, and Badell reviewed the facts, the schedule, and Emeritus' attendance policy, which provides, "If an employee is unable to report to work[,] they are required to contact their supervisor a minimum of two hours prior to the start of their shift." The attendance policy also states in bold capital letters, "A no-call, no-show is grounds for immediate termination." On September 8, 2003, Badell spoke separately by telephone with See and Lawson, and the three agreed to terminate Kampmier for job abandonment because she did not report or call in for her scheduled shifts and because she failed to provide Emeritus with a doctor's note.
Kampmier received a letter, dated September 8, 2003, stating that Emeritus interpreted her failure to call or show up for work as voluntary resignation. Kampmier complained about her termination to both See and Lawson, neither of whom would reinstate her. In her phone call with See, Kampmier complained that Badell had sexually harassed her. After speaking to Kampmier, See informed both Lawson and Badell about the allegations, which Badell denied.
On September 23, 2004, Kampmier filed a ten-count complaint against Emeritus in the Northern District of Illinois. Kampmier brought disparate treatment (Count I), reasonable accommodation (Count II), and retaliation claims (Count III) under the ADA; disparate treatment (Count IV), sexual harassment (Count V), and retaliation claims (Count VI) under Title VII; an ERISA claim; and state law claims for negligent hiring, negligent training and supervision, and intentional infliction of emotional distress.
On August 8, 2005, Emeritus filed a motion for summary judgment. On February 15, 2006, the district court granted the motion on counts I-VII of Kampmier's complaint. The district court also declined to assert jurisdiction over the remaining state law claims.
This Court reviews a district court's entry of summary judgment de novo. Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 782 (7th Cir.2004). Summary judgment is inappropriate if there is a genuine issue of material fact. See McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir.2003). To survive summary judgment, the nonmoving party must make a sufficient showing of evidence for each essential element of its case on...
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