Weigel v. Target Stores

• Decision Date: 26 August 1997
• Docket Number: No. 96-3719,96-3719
• Citation: 122 F.3d 461
• Parties: 7 A.D. Cases 358, 24 A.D.D. 156, 10 NDLR P 286 Shirley WEIGEL, Plaintiff-Appellant, v. TARGET STORES, a Division of Dayton Hudson Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 461

122 F.3d 461

7 A.D. Cases 358, 24 A.D.D. 156, 10

NDLR P 286

Shirley WEIGEL, Plaintiff-Appellant, v. TARGET STORES, a Division of Dayton Hudson Corporation,

Defendant-Appellee.

No. 96-3719.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1997.

Decided Aug. 26, 1997.

Cassandra B. Westgate, Virginia Leigh Erdman (argued), Terwilliger, Wakeen, Piehler & Conway, Wausau, WI, for Plaintiff-Appellant.

John M. Loomis (argued), Katherine L. Williams, Beck, Chaet, Loomis, Molony & Bamberger, Milwaukee, WI, for Defendant-Appellee.

Before CUMMINGS, KANNE, and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Shirley Weigel contends that Target Stores denied her benefits and terminated her employment because of her depression disability, allegedly in violation of the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq. ¹ Ruling on the parties' cross-motions for summary judgment, the district court granted summary judgment in favor of Target. Weigel appeals and we affirm.

BACKGROUND

Weigel was hired by Target in 1989 and worked as a cashier supervisor. On August 30, 1993, she was hospitalized for major depression for approximately 2 1/2 weeks, and On January 3, 1994, Store Team Leader Tim D'Amato wrote to Weigel and informed her that her short term disability would end February 6, 1994. He further informed her that at the end of her short term disability leave period, she had the following options:

                was directed by her treating physician to remain off work.  Target maintained a leave of absence policy under the terms of which Weigel was entitled to paid medical leave for up to 150 days.  She went on a paid medical leave pursuant to Target's paid leave policy from September 3, 1993, through February 6, 1994.  During that time, she periodically submitted disability claim forms to Target in which she represented that she was "wholly unable to work."   The claim forms were accompanied by Attending Physician's Statements in which Weigel's psychiatrist, Dr. Minnihan, represented that she was "totally disabled" for her job and "any other work."
                

* Returning to work in an equivalent position

* Taking an unpaid medical leave of absence

* Resigning from your position with Target

Plaintiff's App. 26. Weigel admits that she never called D'Amato to discuss her options at the end of her paid leave. However, on February 4, 1994, Weigel submitted a disability form to Target with the accompanying physician's statement indicating that she would be able to return to work February 14, 1994, on a trial basis.

Her return to work was short-lived. After returning to work on February 14, Weigel experienced memory loss and found it difficult to perform her job. By February 25, 1994, she found that she was unable to work. She consulted with her treating physician, Dr. Minnihan, who gave her a note recommending that she take a medical leave from work "until further notice." Weigel delivered the note to Target that same day. Later that day, D'Amato issued a letter to Weigel terminating her employment with Target. In pertinent part, the letter states:

This letter is in response to your request for leave of absence dated February 25, 1994. According to Target policy, you must be available to work 14 consecutive days upon return from short term disability to receive extended benefits. Upon review of this policy, I regret to inform you your employment with Target will be terminated.

Plaintiff's App. 25.

On March 5, 1994, Weigel completed an application for Social Security benefits, stating that she became unable to work because of a disabling condition on September 1, 1993, and that she was still disabled. Weigel has not worked since leaving Target and now receives Social Security benefits. In an affidavit filed on behalf of Weigel in opposition to Target's motion for summary judgment, her psychologist, Dennis Elmergreen, Psy.D., opined that had she been granted a medical leave on February 25, "there was a good chance that Shirley Weigel could have returned to her position at Target."

In granting summary judgment in favor of Target, the district court relied heavily on Weigel's representation in her Social Security application that she was totally disabled, and on her physician's statement that she should not work until further notice. The district court concluded that these representations "confirm that she was not able to perform the essential functions of her job with or without reasonable accommodation. Accordingly, she is not a qualified individual with a disability." Memorandum Opinion and Order at 7. The district judge also discounted Dr. Elmergreen's representation that there was a good chance that Weigel could have returned to work had she been given additional leave, because no underlying facts or data were presented to support the opinion, rendering Elmergreen's speculation insufficient to create a triable issue. Because Weigel failed to establish a triable issue as to whether she was a "qualified individual with a disability," the district court granted Target's motion for summary judgment.

ANALYSIS

The Americans with Disabilities Act of 1990 (ADA or Act), Pub.L. No. 101-336, 104 Stat. 327 (1990), codified in pertinent part at 42 U.S.C. § 12101 et seq., prohibits an employer from discriminating against "a qualified individual with a disability because of the disability of such individual...." 42 U.S.C. § 12112. In addition to prohibiting adverse employment decisions (i.e., disparate treatment), such as termination or denial of benefits, when such decisions are based on a qualified individual's actual or perceived disability, see 42 U.S.C. §§ 12112(a), 12112(b)(3) and (4), the Act also prohibits an employer from failing to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, 42 U.S.C. § 12112(b)(5)(A). 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, see DeLuca v. Winer Industries, 53 F.3d 793 (7th Cir.1995), whereas in failure to accommodate claims the McDonnell Douglas framework is "unnecessary and inappropriate." Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1284 (7th Cir.1996); see also Leffel v. Valley Financial Servs., 113 F.3d 787, 792 n. 4 (7th Cir.1997). Accordingly it is important for the plaintiff to be clear about the nature of the claim he or she is asserting.

In the district court proceedings, Weigel was quite emphatic that hers is not a failure to accommodate claim but rather it is a disparate treatment claim alleging that Target discriminated against her by refusing to grant her extended unpaid leave for the treatment of her depression and by terminating her after she requested such leave. See, e.g., Plaintiff's Brief in Support of Motion for Summary Judgment at 2 ("The plaintiff, Shirley Weigel, was unlawfully discriminated against when, because of her disability, she was denied an unpaid leave of absence, a benefit to which she was entitled as a level III employee of Target, and was terminated."); Plaintiff's Reply in Support of Motion for Summary Judgment at 1, 3 ("Shirley Weigel is not claiming that Target unlawfully failed to provide her a reasonable accommodation in the form of a medical leave of absence." * * * "She simply needed a benefit to which she was entitled.... Target discriminatorily denied Shirley this leave."); Plaintiff's Response to Defendant's Motion for Summary Judgment at 5 ("Shirley Weigel's claim is not based on the defendant's failure to reasonably accommodate her disability, but on 1) the Defendant's failure to grant Shirley a medical leave of absence, ... and 2) on the Defendant's termination of her, on the basis of her disability."). In her submissions to this Court, Weigel continues to press her disparate treatment claim; however, in her opening brief, she intimates that the unpaid medical leave she sought was a reasonable accommodation and Target discriminated against her by failing to provide such an accommodation. Because issues not raised below are waived on appeal, see, e.g., McKinney v. Indiana Michigan Power Co., 113 F.3d 770, 773 (7th Cir.1997) (arguments raised for the first time on appeal are waived); Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir.1993) ("Having forsaken the opportunity to articulate ... argument in its memorandum [opposing summary judgment], [plaintiff] waived it."), we must take Weigel's case as she presented it to the district court; accordingly, we consider only Weigel's disparate treatment claim and shall not delve into the issue of whether Target discriminated against her by failing to reasonably accommodate her disability. ²

As is the case with claims of race, gender and age discrimination, a plaintiff may attempt to establish disability discrimination either directly or indirectly. Lacking direct evidence of discrimination, Weigel has chosen the latter course and resorts to the familiar McDonnell Douglas burden-shifting methodology. By now, the McDonnell Douglas framework is sufficiently well known that we can dispense with the standard recitation of the methodology and proceed directly to its application in this case. See Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1007 (7th Cir.1997). Those desiring a refresher in the McDonnell Douglas methodology in the context of an ADA claim should consult Leffel v. Valley Financial Servs., 113 F.3d 787, 792-794 (7th Cir.1997), where it is discussed in detail.

In Leffel, a panel of this Court set out the prima facie showing required of an ADA plaintiff under the McDonnell Douglas framework as follows: "(1) that she is disabled within the meaning of the ADA, (2) that her work performance met her employer's...