McPhaul v. BD of Commissioners Madison Cnty et al

• Decision Date: 16 August 2000
• Docket Number: No. 99-1092,99-1092
• Citation: 226 F.3d 558
• Parties: (7th Cir. 2000) 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
• Court: U.S. Court of Appeals — Seventh Circuit

Page 558

226 F.3d 558 (7th Cir. 2000)

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

In the United States Court of Appeals For the Seventh Circuit

Argued February 18, 2000

Decided August 16, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97 C 97--Sarah Evans Barker, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Bauer, Posner, and Manion, Circuit Judges.

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 42 U.S.C. sec. 1983, against her former supervisor, Arleen Horine, alleging that Horine discriminated against her because of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment. The defendants moved for summary judgment. The district court granted the motion, concluding that McPhaul failed to establish a prima facie case for her ADA and section 1983 claims. McPhaul appeals, and we affirm.

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 heights and weights of clients, and that she was having trouble remembering shot schedules for infants and children and how to certify clients. Although McPhaul was retrained after her initial evaluation, she fared no better on her second evaluation in November 1995. According to Horine's notes, McPhaul's performance was still "Below Average" because she continued to make "gross errors" in plotting the heights and weights of clients, and was still unable to understand the certification process. In January 1996, Horine completed McPhaul's third (and last) performance review, in which McPhaul received the lowest possible rating of "Unsatisfactory." Horine stated that McPhaul was making "numerous errors" in the routine tasks of the job, and that she was still failing to accurately record the heights, weights, and even the ages of clients. Horine recommended to the WIC administrator that McPhaul should be discharged. The administrator and the Health Officer approved Horine's recommendation, and McPhaul was terminated on January 22, 1996.

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 environment claims under section 1983. The district court granted the motion, concluding that McPhaul's ADA claim failed because she did not present sufficient evidence that she was disabled; that her disparate treatment claim failed because she presented no evidence that Horine was motivated by discriminatory intent; and that her hostile environment claim failed because she produced no evidence that her work environment was objectively hostile, or that Horine knew or consented to Shock's conduct.

"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." Fed. R. Civ. P. 56(c). McPhaul cannot merely allege the existence of a factual dispute to defeat summary judgment. Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7th Cir. 1998). She must supply evidence sufficient to allow a jury to render a verdict in her favor. Ross v. Indiana State Teacher's Association, 159 F.3d 1001, 1012 (7th Cir. 1998).

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." 42 U.S.C. sec. 12112(a). The Act also 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. sec. 12112(b)(5)(A). To establish a prima facie case for failure to accommodate under the ADA, McPhaul must show that:(1) she was disabled; (2) the Board was aware of her disability; and (3) she was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of the employment position. Feldman v. American Memorial Life Ins. Co., 196 F.3d 783, 789 (7th Cir. 1999). Although the district court held that McPhaul failed to establish that she was disabled, we reserve opinion on that determination because we find it dispositive that McPhaul has failed to present sufficient evidence to show that she was a "qualified individual" under the ADA. See id.

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." 42 U.S.C. sec. 12111(8). McPhaul has the burden of proof on this issue, as she must show that she could perform the essential functions of the nutritionist and intake clerk jobs either...