Perkins, Gloria v. Ameritech Corp , 161 F. App'x 578 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2005*
Decided January 3, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-3390
GLORIA PERKINS, Appeal from the United States District Court
Plaintiff-Appellant, for the Northern District of Illinois, Eastern
Division.
v.
No. 00 C 5655
AMERITECH CORP., n/k/a SBC
Teleholdings, Inc., Geraldine Soat Brown,
Defendant-Appellee. Magistrate Judge.
ORDER
In this appeal Gloria Perkins challenges the district court’s grant of summary
judgment for Ameritech Corporation, n/k/a SBC Teleholdings, Inc., on her claims
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-3390 Page 2
Perkins, who worked as a Customer Accounts Specialist, was diagnosed in 1994 with
depression and anxiety. Her condition, according to Perkins, caused anxiety attacks
and sleeplessness, and generally prevented her from working. As a result, she took
disability leave for more than two months in 1995, almost five months in 1996, and
part of January 1997. Perkins testified in her deposition that she sought “off-line”
work, which she suggests would have allowed her to avoid contact with customers, as
an accommodation, but she was informed by Ameritech that her job description
required contact with customers.
In 1998, Perkins’s condition worsened and she was diagnosed with
fibromyalgia. Ameritech’s Occupational Medicine Department (“OMD”) granted her
“illness paid leave” and “disability leave” from July to September 1998. From
October 1998 through January 1999, Ameritech permitted Perkins occasional
absences for doctor visits, under the Family Medical Leave Act (“FMLA”). Perkins
testified that, at the beginning of 1999, she again requested work that did not involve
customer contact, but, her supervisor declined the request. Perkins took her last
medical leave while employed at Ameritech from late January through mid-May,
1999. After Ameritech declined her requests for further leave, Perkins finally
returned to work on August 2, 1999.
Perkins’ position with Ameritech was subject to an attendance policy, and the
company began notifying her in 1998 that her attendance was unsatisfactory. She
missed work due to both her medical conditions and other non-medical difficulties,
such as car trouble. In that year she accumulated enough violations to receive a
warning for ongoing attendance problems. Ameritech issued a “final written
warning” to Perkins in August 1999. Then, in late 1999, Perkins accumulated three
additional attendance violations. Ameritech chose to group these as a single violation
for purposes of its attendance policy and suspended her for three days.
After serving her suspension, Perkins was again late for work on December 10.
In accordance with the Collective Bargaining Agreement (“CBA”), Perkins was
suspended pending dismissal, and the union grieved the decision. Perkins met with
the Review Board and entered into a back-to-work agreement, which allowed her to
return to work but stated that Ameritech could terminate her for cause if she
incurred another attendance violation. Perkins also agreed to withdraw all of her
pending grievances. She returned to Ameritech on January 3, but on January 10 she
resigned. She testified that she felt forced to resign by the back-to-work agreement’s
“stipulations,” and that she felt unable to function or work.
Perkins filed her first Equal Employment Opportunity Commission charge on
January 5, 2000, alleging age and disability discrimination. In that charge, as
relevant here, she alleged that Ameritech committed disability discrimination when
No. 04-3390 Page 3
it removed her from leave on May 17, 1999, placed her on a final warning for
attendance violations, denied her request for accommodation, suspended her pending
termination on December 10, 1999, and required her (in the back-to-work
agreement) not to take disability leave. Perkins filed a second EEOC charge on
February 20, which further alleged that she felt “forced to quit” because of the
allegations in her first EEOC charge.
The district court, after granting Perkins’s motion to withdraw her claims
based on age discrimination and failure to promote, granted Ameritech summary
judgment on her ADA claims. The court first found that Perkins’ allegations of
discrimination were discrete events, and therefore only those events occurring on or
after March 12, 1999--300 days before her first EEOC charge--were actionable in
federal court. Next, the court found that Perkins could not bring claims under the
ADA because she did not meet her burden of showing she was a qualified individual.
Third, the court found that Perkins’s constructive discharge claim--to the extent she
even raised such a claim in her complaint or filings--could not succeed because she
voluntarily resigned. Finally, the court concluded that Perkins could not pursue a
retaliation claim because retaliation was not alleged or sufficiently related to the
allegations in her EEOC charge.
Our review of the district court’s grant of summary judgment is de novo. See
Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 834 (7th Cir. 2005). Perkins’s
strongest argument is that the district court wrongly granted summary judgment for
Ameritech because it ignored facts that showed Ameritech failed to engage in the
interactive process required by the ADA. She points to the deposition of the
supervisor who monitored her attendance in which the supervisor did not recall her
request for accommodation despite the presence of evidence to the contrary in the
record. She also argues that it was error for the district court to concentrate on her
attendance record, rather than “review[ing] the entire case as a whole.”
The district court properly focused on Perkins’s poor attendance because her
failure to appear regularly for work removed her from the class of “qualified
individuals” protected by the ADA. To succeed on a failure to accommodate claim, “a
plaintiff must show that (1) she is a qualified individual with a disability; (2) the
employer was aware of her disability; and (3) the employer failed to reasonably
accommodate the disability.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th
Cir. 2005). A qualified individual is “an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
Perkins was absent for several months each year in 1995, 1996 and 1998. Her
attendance declined in 1999 to the point where, according to her testimony, she was
No. 04-3390 Page 4
absent “most of the time” during the first half of the year. She argues that
Ameritech did not follow the CBA or FMLA when it evaluated the attendance
violations that eventually led to her suspension pending dismissal. But, the
possibility that she can point to individual dates on which Ameritech misapplied its
attendance policy is not tantamount to an attack on the fact that she was absent
from work for several multi-month periods from 1995 onward. It is also irrelevant,
for purposes of the ADA, that some of her absences were caused by illness or
potentially covered under the FMLA. The FMLA--which was not a basis for
Perkins’s claims in the district court--may afford someone suffering from a “serious
health condition” up to 12 weeks of leave a year, but the ADA “applies only to those
who can do the job.” Byrne v. Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003).
Thus, even if her absenteeism was tied to her illness, “[i]nability to work for a
multi-month period removes a person from the class protected by the ADA.” Id. To
the extent Perkins also argues that the district court erred when it dismissed her
constructive discharge claim, that argument fails as well because it relies on
Perkins’s ability to claim protection under the ADA.
Perkins next suggests that the district court erred when it determined that
her retaliation claim was not reasonably related to her EEOC charge. Here, she
seems to suggest that Ameritech retaliated against her because she requested
accommodation. In the district court, however, she alleged that the retaliation
occurred “because she filed grievances with her union regarding Ameritech’s
arbitrary attendance policies.” A plaintiff may not shift the basis for her claim on
appeal. See Hottenroth v. Village of Slinger, 388 F.3d 1015, 1033 (7th Cir. 2004).
Moreover, Perkins’s brief fails to present a cogent argument that the district court
erred when it ruled that her EEOC charge did not allege retaliation or facts related
to her alleged attendance policy grievances. The district court did not err when it
determined that Perkins failed to administratively exhaust her retaliation claim. See
Geldon v. South Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th Cir. 2005); see also
EEOC v. Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) (discussing
administrative exhaustion).
Finally, Perkins raises other arguments regarding the scope of the evidence
considered by the district court and Ameritech’s alleged violation of the FMLA.
These arguments, however, are undeveloped or raised for the first time on appeal,
and thus we will not review them. See Weinstein v. Schwartz, 422 F.3d 476, 477 n.1
(7th Cir. 2005); Stanciel v. Gramley, 267 F.3d 575, 580-81 (7th Cir. 2001).
AFFIRMED