Marsalette Winsley v. Cook County ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2339
M ARSALETTE S. W INSLEY,
Plaintiff-Appellant,
v.
C OOK C OUNTY, doing business
as Cook County Department
of Public Health,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-06837—Elaine E. Bucklo, Judge.
A RGUED F EBRUARY 11, 2009—D ECIDED A PRIL 22, 2009
Before B AUER, R IPPLE and W OOD , Circuit Judges.
R IPPLE, Circuit Judge. Marsalette S. Winsley filed this
action in the United States District Court for the
Northern District of Illinois against her former employer,
Cook County, Illinois (the “County”), alleging violations
2 No. 08-2339
of the Americans with Disabilities Act (“ADA”),1 42 U.S.C.
§ 12101 et seq., and Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Cook County filed a motion for
summary judgment, which the district court granted.
Ms. Winsley then filed this appeal. For the reasons set
forth in this opinion, we now affirm the judgment of
the district court.
I
BACKGROUND
A.
Marsalette Winsley is an African-American woman. She
was employed, beginning in October 2001, as a Public
Health Nurse I for the Department of Public Health for
Cook County, Illinois. Prior to July 2003, she was assigned
as a Genetics and Perinatal Hepatitis Coordinator in
Oak Park, Illinois. In July of that year, Ms. Winsley took a
leave of absence to undergo a hysterectomy and kidney
surgery. Ms. Winsley returned to work in December
2003 and was assigned as a Family Case Manager in
Maywood, Illinois. The position required her to drive to
the homes of her clients in order to evaluate their condi-
tion and development.
In March 2004, Ms. Winsley was involved in an auto-
mobile accident. She did not seek emergency medical
1
The ADA recently was amended by the Americans with
Disabilities Amendments Act, which took effect on January 1,
2009. The pre-amendment version of the ADA applies to
Ms. Winsley’s suit.
No. 08-2339 3
treatment after the accident, but she did contact her
psychiatrist, Dr. Michael Bednarz, to tell him that she
was suffering from panic attacks and inability to sleep.
She also went to see her primary care physician; she
told her doctor that she “had some pain in her head and
along her left side” that lasted for “approximately two
or three weeks after the accident.” R.36 at 3. In
April 2004, Dr. Bednarz diagnosed her with post-traumatic
stress disorder (“PTSD”). On his recommendation,
Ms. Winsley took a leave of absence from April 6 through
the end of the month. On April 24, Dr. Bednarz informed
the County by letter that Ms. Winsley “could return to
work part-time with minimal work-related driving.” Id.
at 4. Dr. Bednarz explained that the driving restriction
was necessary because Ms. Winsley “would go into a
full panic when she got into a car.” Id.
For the six weeks following her leave of absence, the
County allowed Ms. Winsley to work part-time at an
office closer to her home. In early June 2004, however, the
County informed her that she could not continue to
work part-time and still retain her classification as a
Public Health Nurse I. The County presented Ms. Winsley
with four options: (1) “[r]equest a disability leave of
absence and pursue benefits through the County’s
Annuity and Benefits Office,” (2) “[r]esume full-time
duties of a Public Health Nurse in Maywood, including
field duties,” (3) “[r]equest reassignment with demotion
to a clinic nurse position,” or (4) “[r]equest reassignment
to part-time status . . . in the category of Registered
Nurse I.” Id. at 6. Ms. Winsley chose the first option, and
her disability leave of absence began in June. Also in June,
Dr. Bednarz sent another note to the County informing
4 No. 08-2339
it that Ms. Winsley “was still having severe symptoms
of PTSD and continued to have difficulty driving.” Id.
Ms. Winsley returned to work in December 2004 and was
assigned once again to the Maywood office. She drove
to and from work but did not drive to visit clients.
She stopped coming to work in March 2005 and did not
return to work until May of that year. In early May,
Dr. Bednarz sent another note informing the County that
Ms. Winsley could return to work if she did not have
to drive during the work day, worked only 32 hours per
week with Wednesdays off, and, if possible, was
relocated to an office within 15 miles of her home. For
the next eight weeks, the County did not require
Ms. Winsley to drive during the day and let her have
Wednesdays off. During this period, however, she
received “unsatisfactory” evaluations for attendance
and timeliness.
Around this time, Ms. Winsley told her supervisor
that her co-workers were making her uncomfortable by
asking her why she had been off work. Her supervisor
directed the assistant supervisor to speak with
Ms. Winsley’s co-workers individually about the issue.
Ms. Winsley wanted the supervisors to call a staff
meeting to discuss the matter, but the supervisors
declined to do so. At the next regular staff meeting,
Ms. Winsley “announced that she wanted to say some-
thing to her peers about interrupting her work to ask her
personal questions.” Id. at 8. Her supervisors asked her
to stop, but she refused. After being asked to stop a
second time, she left the meeting. She went on a leave
No. 08-2339 5
of absence the next day. In June 2005, she filed a charge
with the United States Equal Employment Opportunity
Commission (“EEOC”) alleging discrimination based
on race and disability.
In late June 2005, Dr. Bednarz sent another note to the
County informing it that Ms. Winsley could not return to
work unless she was granted the previously requested
changes to her work requirements. The County then
requested that Ms. Winsley and her physician fill out a
“Physical Demands Analysis” form to determine
whether she could perform the essential job functions
for her position. The analysis form stated that one of
these functions was driving for two hours out of the eight-
hour work day. Dr. Bednarz responded with a note
stating that Ms. Winsley’s “only restriction is no more
driving than to & from work, otherwise full duty.” Id. at 11.
Ms. Winsley returned to work in late November 2005.
On November 22, she filed a union grievance. The
County then agreed to reassign her to the Bridgeview
office if Dr. Bednarz cleared her to do the two hours of
driving required by her position.
In June 2006, Ms. Winsley missed approximately
twenty days of work due to a house fire. On May 22, 2007,
Ms. Winsley’s supervisor gave her a memorandum
noting her absenteeism over the previous eleven weeks
and asking for an improvement over the following two
months. On May 25, without notice, Ms. Winsley stopped
going to work. She never returned to work, and formally
resigned from her position on October 15, 2007.
6 No. 08-2339
B.
Ms. Winsley then filed this action in the United States
District Court for the Northern District of Illinois, alleging
that the County had violated the Americans with Dis-
abilities Act (“ADA”) and Title VII of the Civil Rights
Act of 1964. She also alleged that the County had
engaged in retaliation after she filed her EEOC claim.
After discovery, the County moved for summary judg-
ment on all counts. In her response, Ms. Winsley cited
repeatedly to assertions she had made in her own deposi-
tion, but did not point to any other evidence in support
of her claims.
The district court granted summary judgment to the
County on all of Ms. Winsley’s claims. On her ADA claim,
the court concluded that Ms. Winsley had not produced
evidence sufficient to establish that she had a “disability”
as that term was defined in the ADA. The court also
held that she had failed to establish that she was other-
wise qualified to perform the essential functions of the
job. Because she had failed to establish these two re-
quired elements, the court granted summary judgment
on her ADA claims.
On her Title VII claim, the court concluded that
Ms. Winsley had not made out a prima facie case of
racial discrimination under either the direct or indirect
method of proof. The court noted that she did not cite
any direct or circumstantial evidence in the record that
would support her argument under the direct method of
proof. As to the indirect method of proof, the court held
that she had not made out a prima facie case of discrim-
No. 08-2339 7
ination because her deposition testimony—the only
evidence she offered in support of her claims—did not
establish that any similarly situated employee was
treated more favorably.
Finally, the district court concluded that Ms. Winsley
failed to establish a genuine issue of material fact on her
retaliation claim. The court held that her claim failed
under the direct method because she had not established
that the County had created a “hostile work environment”
in response to her EEOC claim. The court also concluded
that she had not made out a prima facie case via the
indirect method, because, once again, her deposition
testimony did not establish the existence of a similarly
situated employee who was treated more favorably.
Ms. Winsley filed a timely appeal of the district court’s
decision.
II
DISCUSSION
We review a district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in the non-moving party’s favor. Perez v. Illinois, 488
F.3d 773, 776 (7th Cir. 2007). Summary judgment is
proper if the pleadings, discovery and disclosure
materials on file, as well as any affidavits, demonstrate
that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Fed R. Civ. P. 56(c).
8 No. 08-2339
A. Americans With Disabilities Act
To establish a violation of the ADA, an employee must
show: “1) that she is disabled; 2) that she is otherwise
qualified to perform the essential functions of the job
with or without reasonable accommodation; and 3) that
the employer took an adverse job action against her
because of her disability or failed to make a reasonable
accommodation.” Stevens v. Ill. Dep’t of Transp., 210 F.3d
732, 736 (7th Cir. 2000) (citations omitted).
The district court concluded that Ms. Winsley had failed
to establish genuine issues of material fact as to the first
and second required elements of an ADA claim. Ms.
Winsley submits that the court’s determination was
erroneous.
The ADA defines a disability as “a physical or mental
impairment that substantially limits one or more major
life activities.” 42 U.S.C. § 12102(2). The only potential
impairment supported by the evidence is Ms. Winsley’s
claim that she had difficulty driving. Although this court
has reserved judgment on whether driving is a major
life activity, Sinkler v. Midwest Property Mgmt. Ltd. P’ship,
209 F.3d 678, 685 (7th Cir. 2000), three other circuits have
held that it is not. See Kellogg v. Energy Safety Servs. Inc., 544
F.3d 1121, 1126 (10th Cir. 2008); Chenoweth v. Hillsborough
County, 250 F.3d 1328, 1329-30 (11th Cir. 2001); Colwell v.
Suffolk County Police Dep’t., 158 F.3d 635, 643 (2d Cir. 1998).
Today we agree with our sister circuits and hold that
driving is not, in itself, a major life activity. The version of
the ADA applicable to Ms. Winsley’s action, see note 1,
No. 08-2339 9
supra, does not define the term “major life activity,” but an
EEOC regulation states that “Major Life Activities means
functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(I).2 Although
this list does not purport to be exclusive, the items on
the list have several things in common with each other
that driving does not share with them. Most importantly,
the listed activities are so important to everyday life
that almost anyone would consider himself limited in a
material way if he could not perform them. This is not
the case with driving. In fact, many Americans choose
not to drive and do not consider the quality of their lives
to have been diminished by their choice. Moreover, the
importance of the listed activities does not vary depending
2
The EEOC’s interpretation is not necessarily entitled to any
special deference by the courts, because Congress has not
given that agency the authority to interpret the ADA. See Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194 (2002) (“Be-
cause both parties accept the EEOC regulations as reason-
able, we assume without deciding that they are, and we have
no occasion to decide what level of deference, if any, they are
due.”). However, the EEOC’s interpretation of what Congress
meant by “major life activity” in the ADA is bolstered by the
fact that when Congress amended the ADA last year, it added to
the statute a definition that is quite similar to the EEOC’s:
“[M]ajor life activities include, but are not limited to, caring
for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breath-
ing, learning, reading, concentrating, thinking, communicating,
and working.” 42 U.S.C. § 12102(2)(A) (effective Jan. 1, 2009).
10 No. 08-2339
on where a person lives. The value that people assign to
being able to drive, on the other hand, most certainly
does. A great number of Manhattanites drive only rarely,
while residents of more sparsely populated areas of our
country rely heavily on their own automobiles for trans-
portation. Finally, unlike the listed activities, no one has
a right to drive; driving on public highways is a privilege
subject to revocation for a number of reasons. As the
Eleventh Circuit has noted, “[i]t would at the least be an
oddity that a major life activity should require a
license from the state, revocable for a variety of reasons
including failure to insure.” Chenoweth, 250 F.3d at 1329.
Although we hold that driving is not itself a major
life activity, the inability to drive nevertheless could create
a disability if it caused an impairment of a major life
activity. For example, we have held that working is a
major life activity. Sinkler, 209 F.3d at 684. As such, if
Ms. Winsley’s inability to drive impaired her ability to
work, then she would have a qualifying disability under
the ADA. See id. at 685 (evaluating whether the plaintiff’s
inability to drive to and from work “constituted a signifi-
cant barrier to her employment,” thereby impairing her
ability to work). See also Kellogg, 544 F.3d at 1126 (noting
that “an inability to drive will sometimes enable the
plaintiff” to prove impairment of the ability to work);
Chenoweth, 250 F.3d at 1330 (affirming summary judg-
ment against a plaintiff who failed to establish that “her
inability to drive substantially limited her ability to work”).
To show substantial impairment of the ability to work,
however, a plaintiff must show that the impairment
No. 08-2339 11
“significantly restricts the ability to perform a class of jobs
or a broad range of jobs in various classes.” Skorup v.
Modern Door Corp., 153 F.3d 512, 514 (7th Cir. 1998) (citation
and quotation marks omitted). “[A]n inability to
perform a particular job for a particular employer is not
sufficient to establish a substantial limitation on the
ability to work; rather, the impairment must substantially
limit employment generally.” Id. Ms. Winsley presented
no evidence to the district court indicating that her inabil-
ity to drive disqualified her from a class or range of jobs.
Thus, Ms. Winsley did not meet her burden of producing
evidence to establish a genuine issue of material fact as
to whether she had a disability as defined by the
ADA. Because such a disability is a required element of
an ADA claim, the district court properly granted sum-
mary judgment to the County.
B. Title VII
A plaintiff can establish a racial discrimination claim
under Title VII in two ways. Under the “direct method,”
she must present direct or circumstantial evidence that
creates a “convincing mosaic of discrimination” on the
basis of race. Troupe v. May Dep’t Stores Co., 20 F.3d 734,
737 (7th Cir. 1994). Under the indirect method, she
must establish a prima facie case of discrimination by
presenting evidence that: (1) she is a member of a pro-
tected class, (2) her job performance was meeting her
employer’s legitimate expectations, (3) she was subject to
a materially adverse employment action, and (4) the
employer treated similarly situated employees outside
12 No. 08-2339
the protected class more favorably. O’Regan v. Arbitration
Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The district court held that Ms. Winsley failed to meet
her burden via either method of proof. The court con-
cluded that her claim came up short under the direct
method because her deposition testimony—again, the
only evidence to which she cited in her opposition to
summary judgment—provided neither direct nor cir-
cumstantial evidence that her supervisors discriminated
against her because of her race. The court also held that
she had not established a prima facie case, as required
under the indirect method of proof, because she had not
identified a similarly situated employee who was
treated differently from the way she was treated.
We agree with the district court that Ms. Winsley fell far
short of meeting her burden of proof under either the
direct or the indirect method. Her claim fails under the
direct method because she did not produce evidence
from which a jury could conclude that the County or
any of its employees subjected her to discriminatory
treatment because of her race. The only evidence she
presented was her own deposition testimony that the
County mistreated her because of her race. These bare
assertions are not sufficient to establish a link between
Ms. Winsley’s race and her treatment by the County.
See, e.g., Karazanos v. Navistar Intern. Transp. Corp., 948 F.2d
332, 337 (7th Cir. 1991) (“[A] plaintiff’s speculation is not
a sufficient defense to a summary judgment motion.”).
Ms. Winsley’s claim fails under the indirect method
because she is unable to identify a “similarly situated
No. 08-2339 13
employee outside the protected class” who was treated
more favorably than she was. “To meet her burden of
demonstrating that another employee is ‘similarly situ-
ated,’ a plaintiff must show that there is someone who is
directly comparable to her in all material respects.”
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th
Cir. 2002) (citations omitted).
In her deposition, Ms. Winsley pointed to a Caucasian
nurse named Mary Ann Hanley. Ms. Winsley claimed that
Hanley suffered a similar disability but, unlike Ms.
Winsley, was not required to drive to visit clients. How-
ever, Ms. Winsley’s deposition testimony states only
that Hanley “had some type of medical issue similar to
mine,” and goes on to admit that Ms. Winsley does not
know “[e]xactly what it was.” The record on summary
judgment did not provide any other details about
Hanley’s condition or other relevant characteristics. Ms.
Winsley had the opportunity, during discovery in this
case, to request documents and conduct depositions of
County employees in order to shed light on whether
Hanley was, in fact, similarly situated. She failed to do
so, and her vague assertions alone do not establish that
Hanley was directly comparable to her in all material
respects. Even if the record were sufficient to establish
that Hanley and Ms. Winsley were similarly situated,
however, it is far from clear that Hanley was treated more
favorably. Ms. Winsley admitted in her deposition that
around the same time the County asked her to undergo
the Physical Needs Analysis, it required Hanley to do so
as well. Hanley chose to end her employment with the
County rather than undergo the analysis. This does not
14 No. 08-2339
appear to be favorable treatment. Thus, Ms. Winsley
failed to satisfy the fourth requirement of the McDonnell
Douglas framework, and summary judgment for the
County was appropriate.
Ms. Winsley’s discrimination claim also fails the
second requirement of the McDonnell Douglas framework,
because she has not established that her job per-
formance was meeting the County’s legitimate expecta-
tions. The record establishes, and Ms. Winsley does not
dispute, that attendance was a legitimate requirement
for Ms. Winsley’s position. The record also establishes,
and Ms. Winsley also does not dispute, that her attend-
ance record did not meet the County’s expectations for em-
ployees in her position. Ms. Winsley’s claim, therefore,
fails on this basis as well.
C. Retaliation
The district court granted summary judgment to the
County on Ms. Winsley’s retaliation claim because it
concluded that she had not established retaliation via
either the direct or indirect method. Her claim failed
under the direct method because she had not presented
evidence that her employer took an adverse employ-
ment action against her after she filed her EEOC claim.
Ms. Winsley alleged that her supervisors created a hostile
work environment after she filed her claim, but did not
present evidence showing that the conduct she com-
plains of—questions and disruption of her work by co-
workers inquiring as to why she had taken leave—“was
severe and pervasive so as to alter the conditions of [her]
No. 08-2339 15
environment and create a hostile and abusive working
environment.” Mason v. S. Ill. Univ. at Carbondale, 233
F.3d 1036, 1043 (7th Cir. 2000). Thus, the district court
concluded that she had not made out a retaliation claim
via the direct method. For the same reasons, we agree
with the district court that summary judgment was proper.
The district court also concluded that Ms. Winsley’s
claim failed under the indirect method of proof because,
as discussed above, she failed to identify a similarly
situated co-worker who was treated more favorably.
Ms. Winsley again points to Mary Ann Hanley, but the
record does not establish whether Hanley was similarly
situated, and there is also nothing in the record in-
dicating whether Hanley also filed an EEOC claim. With-
out identifying a similarly situated employee, Ms. Winsley
could not make out a prima facie case of retaliation under
the indirect method. Thus, her retaliation claim fails.
Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court.
A FFIRMED
4-22-09