Schneiker, Susan A. v. Fortis Insurance Co

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1437
SUSAN A. SCHNEIKER,
Plaintiff-Appellant,
v.
FORTIS INSURANCE COMPANY,
formerly known as TIME INSURANCE
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 14--J.P. Stadtmueller, Chief Judge.
Argued September 24, 1999--Decided January 6, 2000
Before BAUER, RIPPLE and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. After her discharge,
Susan A. Schneiker filed this action against her
former employer, Fortis Insurance Company
("Fortis"), for violating the Americans with
Disabilities Act (the "ADA"). In her complaint,
Ms. Schneiker alleged that Fortis failed to
accommodate her alcoholism and severe depression
and discharged her because of these impairments.
The district court granted summary judgment for
Fortis; Ms. Schneiker now appeals. For the
reasons set forth in this opinion, we affirm the
judgment of the district court.
I
Because the district court granted summary
judgment, our review of that judgment is de novo.
See Ross v. Indiana State Teacher’s Ass’n Ins.
Trust, 159 F.3d 1001, 1012 (7th Cir. 1998), cert.
denied, 119 S. Ct. 1113 (1999). In our review, we
consider the evidence in the light most favorable
to the non-moving party and draw all reasonable
inferences in favor of that party, Ms. Schneiker.
See Skorup v. Modern Door Corp., 153 F.3d 512,
514 (7th Cir. 1998). Summary judgment is
appropriate when the pleadings, depositions, and
other materials in the record show that there is
no disputed material fact and that the moving
party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
In granting summary judgment, the district court
relied primarily on the proposed findings of fact
submitted by Fortis because Ms. Schneiker had
failed to comply with Local Rule 6.05, which
required the submission of her own proposed
findings of fact in her response to Fortis’
summary judgment motion. Specifically, Local Rule
6.05(b) requires the non-moving party to submit
"[a] specific response to the movant’s proposed
findings of fact, clearly delineating only those
findings to which it is asserted that a genuine
issue of material fact exists." E.D. Wis. R.
6.05(b)(1). To comply with the local rule, the
proposed findings of fact must refer to any
contested findings of fact by paragraph number
and must cite evidentiary materials to support
all factual propositions, whether contested or
not. The district court found that the proposed
findings of fact submitted by Ms. Schneiker did
not comply with the local rule because her
submission was not a point-by-point response to
the proposed findings of fact submitted by Fortis
and was "chock-full of misstatements, unsupported
allegations, and legal argument." R.46 at 2.
The district court was entitled to enforce the
local rule, and like the district court, we
accept as true all material facts as submitted by
Fortis and not properly contested by Ms.
Schneiker. See Brasic v. Heinemann’s Inc., 121
F.3d 281, 284, 285-86 (7th Cir. 1997); see also
Spitz v. Tepfer, 171 F.3d 443, 449 (7th Cir.
1999) (enforcing a comparable local rule to the
Eastern District of Wisconsin’s Rule 6.05);
Garrison v. Burke, 165 F.3d 565, 567 (7th Cir.
1999) (same); Joseph P. Caulfield & Assocs., Inc.
v. Litho Prods., Inc., 155 F.3d 883, 888-89 (7th
Cir. 1998) (enforcing a comparable local rule
where the appellant failed to comply with the
rule in the district court and in her submission
to the court of appeals). We also do not take
into account any facts proposed by Ms. Schneiker
that are unsupported by references to materials
in the record, but as the district court did, we
shall include those facts properly presented by
Ms. Schneiker and supported by the record. See,
e.g., McGuire v. United Parcel Serv., 152 F.3d
673, 675 (7th Cir. 1998). We note, however, that
our enforcement of the local rule makes little
difference in this case because Ms. Schneiker
does not seriously contest the facts submitted by
Fortis or relied upon by the district court. See
Corder v. Lucent Techs. Inc., 162 F.3d 924, 927
(7th Cir. 1998).
II
Ms. Schneiker worked for Fortis from July 1988,
until her termination in July 1994. In late 1989,
Ms. Schneiker began experiencing emotional
problems and sought assistance through Fortis’
employee assistance program. At that time, Ms.
Schneiker came under the care of a psychiatrist,
Dr. John Wean, who advised Ms. Schneiker that she
was suffering from depression and prescribed
medication for her. A few months later, in May
1990, Ms. Schneiker again began having emotional
problems. This time, Dr. Wean had her
hospitalized in a psychiatric hospital. Ms.
Schneiker was hospitalized for her depression on
two more occasions in 1990. According to Ms.
Schneiker, "[t]he third hospitalization
identified a problem of alcohol." R.35 at 2.
After this hospitalization, Ms. Schneiker was
released to an outpatient program, which she
attended 3 nights a week for approximately 6
months. She also attended Alcoholics Anonymous
meetings.
Ms. Schneiker admitted that, despite her
personal struggle with her depression during this
time, "[t]hings were going well at work." R.35 at
3. Ms. Schneiker worked as a Benefit Analyst in
Fortis’ Individual Medical Benefits Department,
and, even though she had received a written
warning for poor production in early 1990, she
improved her performance at Fortis and was even
promoted in April of that year. Other than the
written warning, she received "excellent
reviews." R.34 at 2 (Schneiker Affidavit). In
fall 1992, Ms. Schneiker’s manager asked her to
participate in a temporary project, an assignment
Ms. Schneiker gladly accepted because it was
headed by the marketing department and Ms.
Schneiker was eager to transfer to that
department.
Ms. Schneiker’s problems at Fortis began in
1993. Early that year, one of Ms. Schneiker’s
regular supervisors, Dana Sanders, also became
her supervisor on the special project on which
she was working. Sanders informed Ms. Schneiker
that she would no longer be working on the
special project and that she should return to her
regular position. Ms. Schneiker disputed Sanders’
request, and ultimately the vice president for
the marketing department overruled Sanders and
requested that Ms. Schneiker remain on the
special project.
In the spring of 1993, Sanders gave Ms.
Schneiker a low job performance rating for phone
production, and Ms. Schneiker again disputed his
judgment. The two discussed the evaluation but
did not resolve their differences. Dissatisfied
with the evaluation and treatment that she had
been receiving from Sanders, Ms. Schneiker filed
a complaint against him with the human resource
department at Fortis. The Human Resource Manager,
Mary Bond, had her staff investigate Ms.
Schneiker’s complaint. Bond eventually determined
that Ms. Schneiker’s allegations were without
merit.
During the course of that summer, according to
her affidavit, Ms. Schneiker began seeing Dr.
Wean more often "in an effort to deal with Dana
Sanders." R.34 at 5. Ms. Schneiker even applied
for other jobs within Fortis in an effort to
escape Sanders’ supervision. By September 1993,
Ms. Schneiker’s depression began to take its
toll. On September 7, Ms. Schneiker became
emotionally overwrought at work and was sent
home. A few days later, on September 15, Ms.
Schneiker began crying uncontrollably at a staff
meeting conducted by Sanders, who told her she
could leave the meeting. That same day, Bond
asked Ms. Schneiker to submit to an alcohol test
because a staff member had smelled alcohol on her
breath. Ms. Schneiker reluctantly took the test,
and the results were negative. The ordeal of
taking the alcohol test, however, increased Ms.
Schneiker’s emotional trauma that day, and she
later was admitted to the hospital because of her
condition.
While Ms. Schneiker was still hospitalized, Dr.
Wean, Bond, and Sanders met with her to discuss
her return to Fortis. The doctor recommended that
Ms. Schneiker be removed from Sanders’
supervision, and Bond agreed to a temporary
transfer while Ms. Schneiker sought a different
position within Fortis. Bond formalized the
results of that meeting in a letter, which
informed Ms. Schneiker that, as of October 4,
1993, she would be transferred to a temporary
position and that she should seek permanent
employment by applying for vacant positions at
Fortis for which she was qualified.
Upon her return, Ms. Schneiker transferred from
her job as a Benefit Analyst to her temporary
position in Fortis’ Long-Term Care Unit, which
was located in a different building from where
Sanders worked. In this new position, Ms.
Schneiker had a new supervisor, Carol Paap. She
also retained the same benefits and salary that
she had received while working in her previous
position, although the job involved duties of a
much lower level of responsibility. According to
Ms. Schneiker, the transfer from her previous
department and away from Sanders made a
difference: "Overall, I really believed I was
getting better and contributed this to the change
in environment." R.34 at 9 (Schneiker Affidavit).
In more ways than one, Bond and others at Fortis
tried to help Ms. Schneiker obtain permanent
employment at Fortis. Ms. Schneiker was allowed
to post for more than one job at a time, a
practice not usually allowed at Fortis. The human
resource department arranged interviews for Ms.
Schneiker, sometimes without requiring Ms.
Schneiker to post formally for the position. When
it came time for Ms. Schneiker’s performance
review, Paap ignored what she considered to be
poor attendance and purposefully did not give Ms.
Schneiker a written warning because she did not
want it included in Ms. Schneiker’s personnel
file.
Even though she did not formally interview for
the position, Ms. Schneiker was offered a
permanent position as a communications specialist
on 3 separate occasions. While this job was at a
lower pay grade (by 2 levels) than her previous
position, it also had the potential for
significant salary increases in the long term.
Ms. Schneiker turned the job down each time it
was offered because she felt that the salary
grade was too low and that she was overqualified
for the position. Ms. Schneiker also interviewed
for about 12 other jobs, out of about 54 possible
jobs available between October 4, 1993, and her
termination in July 1994. Of the 12 jobs for
which she did interview, Ms. Schneiker failed to
secure a permanent position.
On May 24, 1994, Ms. Schneiker received a letter
from Fortis that informed her that she would be
terminated if she did not obtain a permanent
position in the company by July 8, 1994. When
Bond was able to verify that Ms. Schneiker had
not complied with this request, she terminated
Ms. Schneiker’s employment.
III
The ADA prohibits employment discrimination
against disabled individuals. Specifically, the
ADA provides:
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.
42 U.S.C. sec. 12112(a). Because the ADA only
covers qualified individuals with disabilities,
the burden rests with Ms. Schneiker to prove that
she is disabled within the meaning of the
statute. See Roth v. Lutheran Gen. Hosp., 57 F.3d
1446, 1453-54 (7th Cir. 1995).
Under the ADA, an individual is disabled if she
(1) has "a physical or mental impairment that
substantially limits one or more" "major life
activities"; (2) has "a record of such an
impairment"; or (3) is "regarded as having such
an impairment." 42 U.S.C. sec. 12102(2). Ms.
Schneiker bases her claim on the first
definition/1 and argues that her alcoholism and
depression substantially limit a major life
activity--her ability to work./2
In order to prove that her impairments
substantially limit her ability to work, Ms.
Schneiker would have to establish that, because
of those impairments, she is "precluded from more
than one type of job, a specialized job, or a
particular job of choice." Sutton, 119 S. Ct. at
2151. In other words, it would not be enough for
Ms. Schneiker to show "an inability to perform a
particular job" for Fortis; to overcome Fortis’
summary judgment motion, Ms. Schneiker would have
to provide this court with some evidence that
would create a question of material fact as to
whether her impairments "substantially limit
employment generally." Skorup, 153 F.3d at 514-15
(quotation marks and citations omitted).
In the district court, Ms. Schneiker asserted
that she suffers from 2 disabilities: alcoholism
and depression. As for Ms. Schneiker’s alleged
alcoholism, the district court held that Ms.
Schneiker had failed to produce any evidence that
she suffered from alcoholism. However, the court
did consider Ms. Schneiker’s alleged alcoholism
"together with [her] allegation that she suffers
from depression." R.46 at 31 n.2. In this appeal,
Ms. Schneiker argues only that her alcoholism is
"an intermittent impairment that is a
characteristic manifestation of depression."
Appellant’s Br. at 14. Because Ms. Schneiker does
not contest the district court’s finding that she
produced insufficient evidence of alcoholism as a
separate disability, that argument has been
waived. But as the district court correctly did
in this case, we shall consider Ms. Schneiker’s
alleged alcoholism to the extent that it could be
an intermittent impairment manifesting her
depression. See Haschmann v. Time Warner
Entertainment Co., 151 F.3d 591, 599-600 (7th
Cir. 1998) (treating episodic "flares," which are
characteristic of lupus, as a disability under
the ADA); Vande Zande v. Wisconsin Dep’t of
Admin., 44 F.3d 538, 543-44 (7th Cir. 1995)
(holding that pressure ulcers, which were the
result of paralysis, were "intermittent
impairment[s] that [are] a characteristic
manifestation of an admitted disability" and
therefore were covered by the ADA).
On the other hand, the district court did
conclude that Ms. Schneiker had produced
sufficient evidence that she suffers from major
depression, and we agree with the court’s
assessment. The record indicates that Ms.
Schneiker was diagnosed as suffering from major
depression, that Dr. Wean treated Ms. Schneiker
for that depression, and that she was
hospitalized on several occasions because of her
depression. But we also agree with the district
court that Ms. Schneiker has not demonstrated
that her depression substantially limits her
ability to work or any other major life activity.
Instead, the record shows that Ms. Schneiker’s
inability to work was due, not to her depression,
but to her inability to work under Sanders.
In some circumstances, major depression can be
a covered disability under the ADA. See 29 C.F.R.
sec. 1630.2(h)(2) (defining physical or mental
impairment to include "[a]ny mental or
psychological disorder"); EEOC Enforcement
Guidance: The Americans with Disabilities Act and
Psychiatric Disabilities at 2, 8 FEP Manual (BNA)
405:7462 (1997) (including major depression as an
example of a "mental impairment" under the
ADA)./3 It is not enough, however, for Ms.
Schneiker to demonstrate that she suffers from
depression. To get past summary judgment, she
must also demonstrate in the record that her
depression substantially limits her ability to
perform a major life activity. In every case our
inquiry is individualized. See, e.g., Patterson,
150 F.3d at 726; Baert, 149 F.3d at 631. On this
record, we cannot say that Ms. Schneiker’s
depression is a substantial limitation on any of
her major life activities.
Ms. Schneiker argues that her depression is
triggered by stress, not by working under
Sanders, and that her depression substantially
limits her ability to work. But she has failed to
produce any evidence that her inability to work
in "stressful situations" precludes her from a
class of jobs or a wide range of jobs. To satisfy
her burden of proof, mild as it may be, Ms.
Schneiker needed to point to those job
requirements that were problematic in light of
her depression. See Skorup, 153 F.3d at 515.
The record, even when viewed in the light most
favorable to Ms. Schneiker, only shows that she
cannot work when supervised by Sanders. According
to Ms. Schneiker, she was visiting Dr. Wean
during the summer of 1993 in order to "deal with"
Sanders, not her job. And when Ms. Schneiker, Dr.
Wean, Bond, and Sanders met to discuss Ms.
Schneiker’s return to Fortis after her last
hospitalization, Dr. Wean recommended that Ms.
Schneiker should not be supervised by Sanders.
The doctor did not recommend that Ms. Schneiker
be removed from her position. Once Ms. Schneiker
moved to her temporary position in the Long-Term
Care Unit, her condition improved. Indeed, once
she moved to her temporary position and away from
Sanders, Ms. Schneiker does not allege that her
depression interfered with her job performance.
That Ms. Schneiker’s problem was with Sanders,
and not with her job, is only reinforced by Ms.
Schneiker’s complaint: "Plaintiff, with
reasonable accommodations of . . . her complete
removal from a supervisor whose supervisory
techniques were the known cause of the stress she
experienced . . . would have been able to perform
the essential functions of her job as a Benefit
Analyst in defendant’s Individual Medical
Benefits Department." R.1 at 2 para. 8. Dr. Wean
also testified to this effect.
In the end, we agree with the district court
that this case is on par with Weiler v. Household
Finance Corp., 101 F.3d 519 (7th Cir. 1996). In
Weiler, this court was confronted with an ADA
claim from an employee who charged that, because
of job-related stress which induced depression,
anxiety and a TMJ disorder, she could not work
for a certain supervisor. See id. at 524. The
employee in that case had taken leave from her
job but argued that she could return only if she
did not have to work under that supervisor. See
id. at 522, 524. We held in Weiler that the
employee was not disabled within the meaning of
the ADA because "if [she] can do the same job for
another supervisor, she can do the job, and does
not qualify under the ADA." Id. at 525. In our
case, the record before us presents essentially
the same scenario: Ms. Schneiker simply cannot
work when she is supervised by Sanders. Standing
alone, a personality conflict between an employee
and a supervisor--even one that triggers the
employee’s depression--is not enough to establish
that the employee is disabled, so long as the
employee could still perform the job under a
different supervisor. See id. at 524-25; cf.
Palmer v. Circuit Court of Cook County, 117 F.3d
351, 352 (7th Cir. 1997) (observing that "if a
personality conflict triggers a serious mental
illness that is in turn disabling," and thus
makes the employee incapable of working, the
employee may have a disabling mental illness
within the meaning of the ADA), cert. denied, 118
S. Ct. 893 (1998).
The record in our case, even when viewed in the
light most favorable to Ms. Schneiker, contains
no evidence that she was precluded from working
at Fortis or from a host of other jobs as a
result of her depression. As a result, Ms.
Schneiker’s claim falters in this court because
she has not demonstrated that she is disabled as
that term is used in the ADA. Because we hold
that Ms. Schneiker is not disabled, we need not
address the remaining aspects of Ms. Schneiker’s
failure to accommodate claim. See Leisen, 153
F.3d at 807; Patterson, 150 F.3d at 726.
Finally, we must also briefly address Ms.
Schneiker’s assertion that Fortis’ job posting
system has a disparate impact on its disabled
employees. The district court held that, because
Ms. Schneiker is not disabled as that term is
defined by the ADA, she is not a member of the
protected class and therefore is not a proper
disparate-impact plaintiff. The ADA protects only
those employees who are "qualified individual[s]
with a disability," 42 U.S.C. sec. 12112(a);
therefore, Ms. Schneiker would also have to be
"disabled" in order to bring a disparate impact
claim under the ADA. See Weigel, 122 F.3d at 465
(noting that a plaintiff must be disabled under
the ADA in order to make out a prima facie case
in the related context of a disparate treatment
claim). We have already determined that she is
not disabled within the meaning of the ADA, and
so we hold that the district court was correct to
grant summary judgment for Fortis on Ms.
Schneiker’s disparate impact claim.
Conclusion
For the foregoing reasons, we affirm the
judgment of the district court.
AFFIRMED
/1 In her filings in the district court, Ms.
Schneiker had alluded to the possibility that
Sanders "perceived" her as disabled. According to
Ms. Schneiker, Sanders, her supervisor, said to
her at one point that she "should go on
disability and that no one would object." R.35 at
5. Ms. Schneiker has not pressed this argument
before this court; therefore, we shall not
address it. See Duncan v. Wisconsin Dep’t of
Health & Family Servs., 166 F.3d 930, 934 (7th
Cir. 1999) (stating that for an argument to be
considered by the court of appeals, the party
must develop that argument in its brief).
/2 The Supreme Court recently expressed some concern
over whether "working" should be considered a
"major life activity" under the ADA, see Sutton
v. United Air Lines, Inc., 119 S. Ct. 2139, 2151
(1999) (noting that the Court had some
"conceptual difficulty" with defining work as a
major life activity for ADA purposes because of
the circularity of the reasoning); nevertheless,
like the Court in Sutton, we need not decide
whether "working" is a major life activity under
the ADA because in our case Ms. Schneiker and
Fortis do not dispute this point and because, as
we discuss below, Ms. Schneiker has not
demonstrated to this court that her alcoholism
and depression substantially limit her ability to
work. See Sutton, 119 S. Ct. at 2151. We do note
that previous decisions from this circuit have
treated "working" as a major life activity. See,
e.g., Skorup, 153 F.3d at 514-15; Patterson v.
Chicago Ass’n for Retarded Citizens, 150 F.3d
719, 725-26 (7th Cir. 1998); Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 630 (7th Cir.
1998); Weiler v. Household Fin. Corp., 101 F.3d
519, 524-25 (7th Cir. 1996); see also 29 C.F.R.
sec. 1630.2(i) (defining the phrase "major life
activity" to include "functions such as caring
for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning,
and working").
/3 This circuit has not yet had occasion to hold
that depression is a disability covered by the
ADA. In our cases in which the plaintiff alleged
a depression disability, our holdings rested on
other grounds, such as whether the plaintiffs
were "qualified" individuals, and not on whether
they were "disabled" under the ADA. See, e.g.,
Corder, 162 F.3d at 927-28 (holding that the
plaintiff, who suffered from depression, was not
qualified under the ADA because of her irregular
attendance); Leisen v. City of Shelbyville, 153
F.3d 805, 808 (7th Cir. 1998) (holding that
summary judgment for the employer was proper
because the employee, who suffered from
depression, had not produced sufficient evidence
that she was qualified for the job); Weigel v.
Target Stores, 122 F.3d 461, 465, 469 (7th Cir.
1997) (affirming summary judgment for the
employer where the employer conceded the
plaintiff’s depression qualified as a disability
but where the plaintiff had not shown that she
was qualified for the job).