UNITED
STATES DISTRICT COURT
For
the Northern District of Illinois
Eastern Division
Lorinda
Broberg,
Plaintiff,
vs.
Illinois
State Police
Defendant.
06
C 3901
2008
WL 320395
2008
U.S. Dist. Lexis 7916
20
AD Cases (BNA) 321
February
4, 2008
MEMORANDUM
OPINION
Charles P. Kocoras, United
States District Judge
This matter comes before the court on the motion of Defendant
Illinois State Police (“ISP”) for summary judgment on the complaint of
Plaintiff Lorinda Broberg. For the reasons set forth below, the motion is
granted in part and denied in part.
Background
Broberg is a former employee of ISP. She joined the force in
March 1997 and worked in various capacities as a trooper, instructor, and
investigator until January 2003, when she became a Vehicle Inspection Officer.
Though her primary duties were in that position, she also retained her
responsibilities as a trooper.
Beginning
in June 2000, various incidents involving Broberg took place that ISP now
contends show a pattern of increasingly bizarre behavior. They included an
altercation between Broberg and a fellow officer, an inspection of the
emergency brakes on ISP training vehicles after Broberg expressed concern
whether they were functioning properly, references to items such as a frog and
a colleague’s intuition that coincided with aspects of Broberg’s personal life,
and Broberg’s belief that some of her co-workers were playing a riddle game
with her.
In 2002, ISP’s Division of Internal Investigations investigated a complaint filed by a man named Chuck O’Connor whom Broberg had dated two years before for approximately 6 months. During the investigation, Broberg was accused of various displays of irrational conduct, all of which she denies.
In March 2003, the O’Connor complaint was to be discussed at a
meeting of the Disciplinary Review Board. Two days before the meeting was to be
held, Broberg reported that a fellow officer had made a sexually harassing
comment to her the week before. She also contended that another officer had
told a gas station attendant about the contents of an email message she had
sent to O’Connor. The two officers she named were admonished by her supervising
officer, Captain Emad Eassa.
In June, Captain Eassa decided to issue a written reprimand to
Broberg in response to the allegations made by O’Connor. The ISP regional
office approved of Eassa’s decision to issue the reprimand.
On
September 1, 2003, Broberg had conversations with two telecommunicators who
were on duty for ISP. According to ISP, Broberg made reference to being
threatened by a gang member and a fireman, made comments that her lieutenant
had been sent to get rid of her, and stated in different ways that she would
use her weapon as she had been trained to do. According to Broberg, she
spoke only with regard to an upcoming munitions training that she would be
required to undergo.
The next
day, Broberg was removed from duty and was required to undergo a psychological
examination to determine her fitness for duty. The following month, she was
examined by Dr. Cherry Weber, a clinical psychologist not associated with or
employed by ISP. After interviewing Broberg and examining various documents
provided to her by ISP, Weber concluded that Broberg suffered from a major
depressive disorder and paranoid personality disorder. She recommended that
Broberg be found unfit for duty with ISP.
In November
2003, the ISP Medical Review Board met to discuss Broberg’s case and decided to
follow Weber’s recommendation. In January 2004, Broberg underwent an
examination by Dr. Toby Motycka, another clinical psychologist. After examining
Broberg, Motycka disagreed with Weber’s diagnosis and opined that Broberg was
in fact fit for duty as a state trooper. After receiving Motycka’s
report, ISP required Broberg to meet again with Weber to determine whether her
condition had improved since her October 2003 evaluation. Contemporaneously,
Broberg filed a charge with the EEOC alleging discrimination on the basis of
sex and disability.
After
meeting with Broberg the second time, Weber did not change her conclusion. ISP
concluded that Broberg was unfit for duty and placed her on a nonoccupational
disability leave for an indefinite period of time.
Broberg has
not returned to duty with ISP since September 2, 2003. Though she remains on
nonoccupational disability leave as an employee of ISP, she now works as an
officer with a police department in Florida.
On July 20,
2006, Broberg filed a three-count complaint against ISP. Count I alleges that
ISP unlawfully discriminated against her on the basis of a perceived disability
in violation of the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act. Count II asserts violations of Title VII in the form of sex
discrimination. Count III contends that ISP unlawfully retaliated against
Broberg for her filing of charges in 2003 and 2004. Discovery has been
completed and ISP now moves for summary judgment in its favor on the entirety
of the complaint.
Legal Standard
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial
burden of showing that no genuine issue of material fact exists. Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The
burden then shifts to the nonmoving party to show through specific evidence
that a triable issue of fact remains on issues on which the nonmovant bears the
burden of proof at trial. Id. The nonmovant may not rest upon mere allegations
in the pleadings or upon conclusory statements in affidavits; it must go beyond
the pleadings and support its contentions with proper documentary evidence. Id.
The court considers the record as a whole and draws all reasonable inferences
in the light most favorable to the party opposing the motion. Bay v. Cassens
Transp. Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7th Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986).
With these principles in mind, we turn to the instant motion.
Discussion
A. Disability
Discrimination Claim
The ADA provides remedies for discrimination against “qualified
individual[s] with a disability.” 42 U.S.C. § 12112(a); Sutton v. United Air
Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999). The
Rehabilitation Act provides like protection against discriminatory behavior by
entities receiving federal funding. 29 U.S.C. § 794. A plaintiff proceeding
under either of these statutes must show “(1) that she suffers from a
disability as defined in the statutes; (2) that she is qualified to perform the
essential functions of the job in question, with or without reasonable
accommodation; and (3) that she has suffered an adverse employment action as a
result of her disability.” Jackson v. City of Chicago, 414 F.3d 806, 810 (7th
Cir. 2005).
To satisfy
the first element, an employee need not actually have a disability. A claim can
also rest on an employer’s perception that an employee has an impairment that
substantially limits a major life activity even if the employee does not in
fact have such an impairment. 42 U.S.C. § 12102(2)(A); Kampmier v.
Emeritus Corp., 472 F.3d 930, 937 (7th Cir. 2007). Broberg contends that ISP
regarded her as having a mental illness that substantially limited her; she
contests that she was in fact mentally ill. Under this type of theory, “the
plaintiff must prove either that (1) the employer mistakenly believes that the
employee has an impairment that substantially limits a major life activity, or
(2) the employer mistakenly believes that an existing impairment that is not
really limiting does substantially limit a major life activity.” Cassimy v.
Board of Educ. of Rockford Public Schools, Dist. # 205, 461 F.3d 932, 937 (7th
Cir. 2006).
There is no
dispute that ISP removed Broberg from duty at least in part because of Weber’s
reports that Broberg was mentally ill. In its motion, ISP instead contends that
the perceived mental impairment did not substantially limit her in a major life
activity. We find its arguments unpersuasive. Weber diagnosed Broberg as having
major depressive and paranoid personality disorders, and the evidence that ISP
offers to explain its actions indicates that it viewed her as unable to
accurately perceive reality or to behave in a rational manner. These activities
go beyond a mere ability to get along with others and are activities that are
central to daily life. See Toyota Motor Mfg. v. Williams, 534 U.S. 184,
197, 122 S. Ct. 681, 691, 151 L. Ed. 2d 615 (2002).
ISP also
attempts to characterize Broberg’s perceived difficulties as less than
substantial by asserting that she did not display the behaviors all the time or
with all the people in her life. However, to support its argument that its
actions regarding Broberg were justified, it cites not only situations in her
professional life but also from her personal life in the context of her
interactions with O’Connor. Such evidence belies their claim that the
limitation as they perceived it was circumscribed and isolated. Based on this
evidence, a reasonable factfinder could conclude that ISP perceived Broberg to
have a substantial limitation in a major life activity.
ISP also insists that it should be awarded summary judgment via
the defense contained in 42 U.S.C. § 12113(a) and (b). Those subsections
provide that an employer may require that employees “not pose a direct threat
to the health or safety of other individuals in the workplace.” § 12113(b). ISP
relies heavily upon Weber’s opinions to support the presence of this defense,
but the conflicting conclusions of Weber and Motycka and the divergent accounts
of what occurred on September 1, 2003, preclude a definitive conclusion at this
point that Broberg was a direct threat.
Viewing the
evidence in a light most favorable to Broberg, a reasonable factfinder could
find in her favor on the claims of disability discrimination in Count I,
precluding summary judgment on this count in favor of ISP.
B. Title VII Claim
A plaintiff claiming discrimination in violation of Title VII
can proceed under either the direct method or the indirect method of
establishing her claim. See Sun v. Bd. of Trustees of Univ. of Illinois, 473
F.3d 799, 812 (7th Cir. 2007). A plaintiff using the direct method must set
forth actual evidence of discrimination. See id.
If a plaintiff has no evidence that the motivation for an
employment action was an unlawful one, he or she can still survive summary
judgment using the indirect method. Brewer v. Bd. of Trustees of University of
Illinois, 479 F.3d 908, 915 (7th Cir. 2007). Under that method, a plaintiff such
as Broberg can raise a presumption that her employer acted with discriminatory
motivations if she can establish four prima facie elements: 1) she is a member
of a protected class; 2) she was meeting her employer’s legitimate expectations
of her performance on the job; 3) she suffered an adverse employment action;
and 4) ISP treated a similarly situated employee who was not in the same
protected class more favorably than it treated Broberg. See Burks v. Wisconsin
Dep’t of Transportation, 464 F.3d 744, 750-51 (7th Cir. 2006). If Broberg is
able to advance proof of each element, ISP can rebut the presumption of
unlawful discrimination by setting forth a legitimate business reason for
taking the actions it did. See id. at 751. Broberg must then establish disputed
issues of fact regarding whether the reason ISP advances is a pretext designed
to cover up the true reasons for the action. See id. If she cannot, ISP is
entitled to summary judgment. See id.
With
respect to her charge of discrimination on the basis of her sex, Broberg does
not set out any direct evidence that ISP acted against her on the basis of her
sex. ISP argues that she cannot prevail under the burden-shifting method
either because she has not identified any similarly situated male trooper who was
treated more favorably than she was. Broberg makes no attempt to identify any
of her former colleagues to refute this contention. Accordingly, we conclude that Broberg cannot
establish a prima facie case of sex discrimination, so summary judgment in favor
of ISP is appropriate on Count II of the complaint.
C. Retaliation Claim
Lastly, ISP
requests summary judgment of Broberg’s retaliation claim, which is based on a
contention that ISP reprimanded her, made her submit to the fitness for duty
examinations, and placed her on administrative leave in retaliation for her
filing internal charges of sex discrimination in 2003 and charges with the EEOC
of discrimination on the basis of sex and disability in 2004.
As is the case for claims of unlawful discrimination, claims of
unlawful retaliation can be established using a direct or an indirect method.
See Roney v. Illinois Dep’t of Transportation, 474 F.3d 455, 459 (7th Cir.
2007). A plaintiff using the direct method must provide evidence that she was subject
to an adverse action as a result of engaging in a statutorily protected
activity. See id. Under the indirect method, a plaintiff who does not have
direct or circumstantial evidence can raise a presumption that the adverse
action resulted because of the protected activity by demonstrating four prima
facie elements. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740
(7th Cir. 2006). They are 1) the plaintiff complained about discrimination, 2)
she was subjected to an adverse action, 3) despite her satisfactory job
performance, and 4) no similarly situated employee who did not complain
suffered such an action. See id.
As was true
with her claim of sex discrimination, Broberg does not offer any direct
evidence that ISP’s actions were driven by a retaliatory motive. Accordingly,
she must proceed under the indirect method of proof. ISP attacks the
viability of this claim on a variety of fronts; a comprehensive challenge rests
in its assertion that Broberg cannot make out a prima facie case of retaliation
because she has not identified any similarly situated employees who were not
subject to the same actions as she was. The inquiry into whether the situation
of a potential comparator is similar enough to the plaintiff’s to constitute a
sufficient prima facie showing is based in common sense rather than rigid
formulas. Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007).
However, a plaintiff must still identify someone with enough similarity in key
areas that a jury could infer that the only meaningful differentiation between
the two is a previous charge of discrimination against the employer. Id. Broberg has identified no one;
the inquiry is flexible, but not that flexible. Consequently, we conclude that
summary judgment in favor of ISP is appropriate on the retaliation claims
contained in Count III.
Conclusion
Based on the foregoing, ISP’s motion for summary judgment is denied as to
Broberg’s claims of disability discrimination and granted as to her sex
discrimination and retaliation claims.
/s/ Charles P. Kocoras
Charles P. Kocoras
United States District
Judge
February 4, 2008