Merry v. A. Sulka & Co., Ltd.

• Decision Date: 07 February 1997
• Docket Number: No. 95 C 6179.,95 C 6179.
• Citation: 953 F.Supp. 922
• Parties: Morgan MERRY, Plaintiff, v. A. SULKA & COMPANY, LTD., Defendant.
• Court: U.S. District Court — Northern District of Illinois

Page 922

953 F.Supp. 922

Morgan MERRY, Plaintiff, v. A. SULKA & COMPANY, LTD., Defendant.

No. 95 C 6179.

United States District Court, N.D.Illinois, Eastern Division.

February 7, 1997.

David A. Beck, Ronald A. Orner, Norton Wasserman and Sanja Djukic of Orner & Wasserman, Chicago, IL, for Plaintiff.

Timothy A. Nelsen, John K. Lyons and Tiffanie N. Cason of Skadden, Arps, Slate, Meagher & Flom, Chicago, IL; Julie B. Carlin-Sasaki of Skadden, Arps, Slate, Meagher & Flom, New York City, for Defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Morgan Merry ("Merry") has sued A. Sulka & Company, Ltd. ("Sulka"), asserting that Sulka violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12117,¹ by discriminating against him because of his diagnosed learning disability of dyslexia. Sulka now moves for summary judgment under Fed.R.Civ.P. ("Rule") 56. Merry and Sulka have respectively complied with this District Court's General Rule ("GR") 12(M) and 12(N),² and the motion is fully briefed and ready for decision. For the reasons stated in this memorandum opinion and order, Sulka's motion is denied.

Summary Judgment Standards

Familiar Rule 56 principles impose on Sulka the burden of establishing both the lack of a genuine issue of material fact and that it is entitled to a judgment as a matter of law (Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). Summary judgment is appropriate if the record reveals that no reasonable jury could find for Merry on his claim. For that purpose the evidence must be "construed as favorably to [Merry] as reason and the record permit" (Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 272 (7th Cir.1996)). Thus this Court will draw inferences in the light most favorable to non-movant Merry, but it is "not required to draw every conceivable inference from the record—only those inferences that are reasonable" (Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) and cases cited there).

What follows in the Background section is a factual statement drawn from the parties' submissions, with any differences between them resolved in Merry's favor. Facts that fit better into the substantive legal discussion will be included later in this opinion.

Background

Sulka is a retail establishment in the business of selling luxury men's apparel (S.12(M) ¶ 2). On August 25, 1993 Merry was hired as a sales associate for Sulka's Chicago store (S.12(M) ¶ 1). Though Merry's chief duty was the in-store sale of Sulka's products (Merry 7/19 Dep. 95³), the job requirements also included staying in contact with customers through telephone calls and letters, filling out sales slips, doing inventory, being as well-groomed and well-dressed as possible, having a positive attitude toward work, getting along with co-workers and being honest (S.12(M) ¶ 3).

Merry had been diagnosed as dyslexic before obtaining his employment with Sulka (M.12(N) Supp. ¶ 1). Merry told Joseph Barlow ("Barlow"), the General Manager of Sulka's Chicago store, of that condition when he interviewed for the Sulka job (Merry's Interrog. Ans. 2). Merry later told Daniel Nack ("Nack"), Barlow's May 1994 replacement as General Manager, about his disability on three separate occasions of his disability (id.).

Merry's dyslexia was relevant to several aspects of the sales associate position. For one, Sulka is apparently unique among men's retailers in that sales checks are filled out completely by hand. While other clothing stores might use point of sale computer terminals for customer transactions, Sulka requires its sales associates to make careful handwritten notations of the name and address of the client, the payment method (including credit card number if appropriate), the employee number, a description of the item purchased, the cost of each item and the total cost of each sale (including sub-totals and sales tax) (S.12(M) ¶¶ 25-26). Additionally, Sulka expects its sales associates to maintain customer contacts with handwritten thank-you notes (Merry 7/19 Dep. 407; Merry Aff. ¶ 14). Merry's condition often made it difficult for him to complete those tasks successfully without assistance (S.12(M) ¶ 31; Merry 7/19 Dep. 407).

Merry worked at Sulka's Chicago store for nearly two years. During that period Merry received three formal performance reviews (M.12(N) ¶¶ 6, 9, 15). With one exception— the month of December 1994—Merry never achieved his specified sales goals. Merry received no commissions or bonuses for 1993 or 1994, and he was the store's lowest performer against his goals during his final months at Sulka in 1995 (S.12(M) ¶ 16).⁴ Merry was reprimanded numerous times during his time at Sulka for incidents reflecting lack of respect for his managers, his co-workers and their property (S.12(M) ¶¶ 9, 10, 14, 15, 19, 21, 22, 23), and he was never promoted (Merry Aff. ¶ 13). After discussing Merry's situation with advisors in Sulka's New York office (Nack Dep. 37), Nack terminated Merry's employment with Sulka on May 8, 1995 (S.12(M) ¶ 24).

On June 8, 1995 Merry filed an employment discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). EEOC issued a right-to-sue letter on August 31, 1995, and this timely suit followed on October 25, 1995.

Positions of the Parties

Merry claims that Sulka violated ADA by refusing to furnish him with accommodations to which he was legally entitled and then terminating him as a result of his proper request for reasonable accommodation. Sulka sets out three grounds in support of its attempt to prevail via summary judgment:

1. It claims that Merry's dyslexia is not a "disability" as that term is defined for ADA purposes, so that Merry is not entitled to relief under ADA.

2. It also contends that in any event Merry was accommodated in numerous ways in a manner sufficient to satisfy any obligation Sulka may have had under ADA.

3. Finally it asserts that Merry was discharged for a legitimate nondiscriminatory reason, thereby negating an essential element for Merry's discrimination charge under ADA.

This opinion will consider each of these arguments in turn.

Dyslexia as a Disability Under ADA

Section 12112(a) sets out ADA's general prohibition against discrimination:

No covered entity shall discriminate 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, employee compensation, job training, and other terms, conditions, and privileges of employment.

For that purpose Reg. § 1630.2(g) defines "disability" with respect to an individual as:

(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(2) A record of such an impairment; or

(3) Being regarded as having such an impairment.

Merry lays claim to a disability under only the first of those criteria, so this opinion will consider the issue in that sense alone.

For its part, Sulka does not dispute that dyslexia is an "impairment" for ADA purposes (Sulka Mem. 9),⁵ but not every "impairment" is necessarily an ADA "disability" (Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995)). To satisfy that latter standard, Reg. § 1630.2(g)(1) requires that the impairment "substantially limits one or more ... major life activities."

Although ADA itself does not define "substantially limits" or "major life activity," the Regulations provide guidance. "Major Life Activities" include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" (Reg. § 1630.2(i)).⁶ And under Reg. § 1630.2(j)(1) "substantially limits" describes a person who is:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Finally, in any determination whether an individual is substantially limited in a major life activity, the following three factors are to be considered (Reg. § 1630.2(j)(2)):

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment; and

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

Although other federal courts have generally found dyslexia to constitute a "disability" under ADA (see, e.g., Illingworth v. Nestle U.S.A. Inc., 926 F.Supp. 482, 488 (D.N.J.1996), collecting cases), no per se rule requires such a finding. Rather the determination of whether or not a person has an ADA "disability" is to be made on an individualized case-by-case basis (Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir.1992)).⁷ Interpretive Guidance § 1630.2(j) states:

The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual. Some impairments may be disabling for particular individuals but not for others, depending on the stage of the disease or disorder, the presence of other impairments that combine to make the impairment disabling or any number of other factors.

Quite clearly that determination involves a fact-intensive inquiry. Hence summary judgment for Sulka is inappropriate unless, based on the evidence presented, reasonable jurors could conclude only that Merry was not "substantially limited" in one or more "major life activities" within ADA's meaning (Byrne, 979 F.2d at 565-66; Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir.1996)).

In light of the record...