Tomasello v. Delta Air Lines, Inc.

• Decision Date: 24 June 1998
• Docket Number: No. 96 C 7289.,96 C 7289.
• Citation: 8 F.Supp.2d 1090
• Parties: Debra TOMASELLO, Plaintiff, v. DELTA AIR LINES, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

8 F.Supp.2d 1090

Debra TOMASELLO, Plaintiff, v. DELTA AIR LINES, INC., Defendant.

No. 96 C 7289.

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

June 24, 1998.

Lawrence Gordon and Paul Armstrong of Gordon & Gordon, Ltd., Chicago, IL, for Plaintiff.

Max G. Brittain, Jr. and Wendy Nutt of Brittain Sledz Morris & Slovak, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Debra Tomasello ("Tomasello") has sued her ex-employer Delta Air Lines, Inc. ("Delta"), asserting that Delta violated the Americans with Disabilities Act ("ADA," 42 U.S.C. §§ 12101-12117¹) by discriminating against her because of her diagnosed medical condition of reflex sympathetic dystrophy. Delta has filed a Fed.R.Civ.P. ("Rule") 56 summary judgment motion, both sides have 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, Delta's motion is granted and this action is dismissed.

Summary Judgment Standards

Familiar Rule 56 principles impose on Delta the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For that purpose this Court must "read[ ] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" (St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir.1997)). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" (McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 370-71 (7th Cir.1992)), that does not negate the potential for summary judgment in cases where a movant plainly satisfies the Rule 56 standards (Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). In those terms summary judgment is appropriate if the record reveals that no reasonable jury could conclude that Tomasello was treated in a statutorily prohibited discriminatory fashion (see Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1402 (7th Cir.1996) and cases cited there). And as the ensuing discussion demonstrates, that standard dooms Tomasello's claims.

As with every summary judgment motion, this Court accepts nonmovant Tomasello's version of any disputed facts.³ What follows in the Facts section (and to some extent later) is culled from the parties' submissions, with any differences between them resolved in Tomasello's favor.

Facts

On September 27, 1993 Tomasello began working as a Temporary Reservations Sales Agent ("Agent")⁴ in Delta's Schaumburg, Illinois Reservations Sales Office (D.12(M) ¶ 1). In that capacity she was responsible for handling telephone calls, answering questions concerning flight schedules and airfares and booking reservations (id. ¶ 2), all of which required her to spend the bulk of her day typing on a computer keyboard (T. 12(N) ¶ 4; Tomasello Dep. 68). Because typing is an essential function of the job, Delta required its Agents to be able to type 30 words per minute (T. 12(N) ¶ 6). But Tomasello testified that Delta did not enforce that requirement and in fact employed other unidentified persons who could not meet that number (id.).

On October 16, 1994 Tomasello was involved in a car accident in which she sustained multiple injuries to her face, back, breast, knee, nose and (of particular importance to this lawsuit — she is left-handed) her left arm (D.12(M) ¶ 8). As a result of that accident Tomasello was forced to take an extended leave of absence (id. ¶ 9). According to Delta's Director of Equal Opportunity Richard Ealey, any temporary employee is entitled to a 90-day leave of absence, after which (without exception, and irrespective of the reason for the absence) he or she must either return to the job or be terminated (Ealey Aff. ¶ 8).⁵

On January 13, 1995 — the 90th day after her leave of absence began — Tomasello returned to the Schaumburg office and gave her supervisor Sharon Pendergast ("Pendergast") this January 12 doctor's diagnostic note (Tomasello Dep. Ex. 10):

This patient has reflex sympathetic dystrophy of her L [left] hand & a fractured R [right] index finger⁶ & is unable to type until further notice.

Tomasello testified that she told Pendergast that "she could type `with the other arm' or `take on any other position'" (D.12(m) ¶ 14, quoting Tomasello Dep. 157), but Pendergast responded that there were no other vacancies at the Schaumburg office (id.). Following that conversation Tomasello was terminated (D.12(M) ¶ 15). Six months later Delta closed its Schaumburg facility (T. 12(N) ¶ 15).

On November 9, 1995 Tomasello filed a charge of disability discrimination with Equal Employment Opportunity Commission ("EEOC"). On August 6, 1996 EEOC dismissed that charge and issued Tomasello a right-to-sue letter (AC ¶ 7 Ex. A), after which Tomasello timely filed her Complaint here.

Positions of the Parties

Tomasello claims that Delta violated ADA by refusing to furnish her with accommodations to which she was legally entitled and then terminating her as a result of her proper request for reasonable accommodation. For its part Delta advances four contentions in support of its Rule 56 motion:

1. Tomasello's reflex sympathetic dystrophy is not a "disability" as defined for ADA purposes, so she is not entitled to relief under ADA.

2. In any event Tomasello is not a "qualified individual with a disability" and is thus not a member of ADA's protected class.

3. Tomasello was discharged for a legitimate nondiscriminatory reason, negating an element essential to her ADA discrimination claim.

4. There was no reasonable accommodation available to enable Tomasello to continue her employment.

Because the second and third of those arguments (either singly or together) defeat Tomasello's claim, this opinion will focus on those matters (though it will speak briefly to the first — the "disability" question — as well).

Statutory Overview

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

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.

ADA case law separates such disability discrimination claims into two categories:

1. claims alleging "discrimination under the specific terms of the statute" (Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1011 (7th Cir. 1997)) by failing to make reasonable accommodations for known disabilities⁷; and

2. claims charging disparate treatment as between disabled and nondisabled employees(Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir.1997)).

ADA plaintiffs must be clear about the nature of the claims they assert, for as Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997) (internal citations and quotation marks omitted) teaches:

Disparate treatment claims are analyzed somewhat differently than failure to accommodate claims. In disparate treatment claims, the McDonnell Douglas burden-shifting framework commonly employed in Title VII and ADEA actions is generally appropriate, whereas in failure to accommodate claims the McDonnell Douglas framework is unnecessary and inappropriate.

Because Tomasello is not complaining that Delta treated her differently from or less favorably than non-disabled employees, she has not stated a disparate treatment claim. Instead her AC seeks to advance a direct case under the Section 12112(b)(5) definition of "discriminate" — a claim of Delta's failure to provide reasonable accommodation. So there will be no need for a McDonnell-Douglas ping-pong match today in any event (id.; Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1283-84 (7th Cir.1996)).

Failure-To-Accommodate Claims

Best v. Shell Oil Co., 107 F.3d 544, 547-48 (7th Cir.1997) prescribes that to prevail ultimately on her claim, Tomasello must establish that (1) she had a "disability" within the meaning of ADA, (2) Delta was aware of that disability and (3) she was qualified for the position in question, with or without reasonable accommodations.⁸ That first requirement could present a threshold question, for if a person is not "disabled" there is no need to proceed further with the inquiry (see Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995)). Even though the third requirement ultimately proves dispositive here, it is therefore worth spending a moment or two on the "disability" question (if only as a matter of background).

Reflex Sympathetic Dystrophy as a Disability

Reg. § 1630.2(g) defines "disability" 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.

In turn Reg. § 1630.2(h)(1) defines "physical or mental impairment" to include:

Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine....

Tomasello seeks to invoke only the first of the Reg. § 1630.2(g) alternatives.

Although Delta does not dispute that reflex sympathetic dystrophy is an "impairment" for ADA purposes (Delta Mem. 7), it makes the valid point that not every physical impairment necessarily rises to the level of an ADA "disability" (Roth, 57 F.3d at 1454). As the regulatory definition states, the impairment must "substantially limit[ ] one or more of the major life activities."

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