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Cloe v. City of Indianapolis, No. 12-1713 (7th Cir. Apr. 9, 2013)

Once again, a federal court of appeals is compelled to reverse summary judgment in a discrimination case where the employer brazenly offered no reason for its decision to terminate the plaintiff. The Seventh Circuit here remands claims of ADA discrimination and retaliation for an employee diagnosed with MS. (The ADA retaliation claim specifically concerns a manager who is openly resentful of the plaintiff's disability, all but accusing the plaintiff of malingering.) Judge David Hamilton, concurring, also explains why the common McDonnell Douglas method of proof may be backwards, essentially requiring the employee to guess at the employer's defense before it is offered.

Cloe v. City of Indianapolis, No. 12-1713 (7th Cir. Apr. 9, 2013): The employee Ms. Cloe was diagnosed with multiple sclerosis ("MS") in 2008, and was out of a job in 16 months. She worked as an Unsafe Buildings/Nuisance Abatement Project Manager, coordinating sweeps of derelict properties. "By all accounts, Cloe had a knack for field work-she received positive performance reviews and several community outreach awards from City leaders." When the MS set in, though, doctor's restrictions rendered field work nearly impossible. The MS not only limited her mobility, but clouded her memory and concentration as well.

In a common scenario in ADA cases, a new manager entered the scene (after a reorganization) and rode Ms. Cloe unusually hard. For failure to meet a deadline, and for errors in a report, Ms. Cloe was disciplined. She was suspended for mis-scheduling an April 9, 2009 demolition, and then supposedly for attending the demolition against her supervisor's orders. Ms. Cloe was also placed on a Performance Improvement Plan "stating that Cloe's performance was 'below expectations,' that she had 'consistently turned in inaccurate work,' and that she had been 'dishonest and insubordinate." The city terminated her employment shortly thereafter.

In the district court, the judge granted summary judgment on all three of Ms. Cloe's claims that the City (1) discriminated against her because of her disability; (2) failed to reasonably accommodate her disability; and (3) retaliated against her for requesting accommodations for her disability.

On appeal, the Seventh Circuit reverses (1) and (3). (On (2), the panel holds that Cloe's reasonable accommodation claims fail, holding that the city timely granted her requests for a nearby parking space and a local computer printer, while her request for a proofreader was not shown to clearly be related to a disability.)

The retaliation claim, concerning her 2009 termination, presented enough circumstantial evidence to warrant a trial. Although the city failed to present evidence about who actually made the decision to terminate Ms. Cloe, there was evidence that her direct supervisor resented her health-related absences. A week before a disciplinary suspension:

"[Cloe] had a meeting with Winfield and Janna Mays in which [she] told Winfield and Mays that [she] had to leave early because [she] had a doctor's appointment. Winfield and Mays expressed anger at [Cloe] for having to leave early. Within a week after this incident, when Winfield's supervisor Mays returned from her honeymoon, [Cloe] was written up for the [April 9, 2009 demolition]."

Her supervisors likewise made remarks suggesting that they believed Ms. Clow was exaggerating her condition. One administrator allegedly commented that "you are fine. I have a friend who has MS and does everything." Winfield said that Ms. Cloe's medical condition "was not serious and did not affect [her] ability to work." Finally, disciplinary actions tended to occur mere weeks or even days after Ms. Cloe's health related absences from the office.

Meanwhile, on the discriminatory discharge claim, the panel holds that the city's failure to present a defense for its decision below precluded summary judgment:

"The district court held that Cloe could not show that the City's reasons for firing her were pretextual. However, as Cloe correctly points out, the City did not raise this argument in support of its motion for summary judgment. Indeed, the City's brief in support of summary judgment did not mention wrongful termination at all. Instead, the City argued only that it did not discriminate against Cloe when it required her to submit medical certifications."

Because the city did not present a defense of the termination decision in the district court, the panel holds that the employee was deprived of an opportunity to make a record on that claim. The panel remands for further proceedings.

Concurring, Judge Hamilton notes the eccentricity of the common McDonnell Douglas  method of proof, which requires the employee to advance proof of comparable employees outside the protected group who were treated better, even before the employer presents its defense:

"The odd thing about the employer's motion for summary judgment in this case is that it failed to offer a lawful reason for the employer's decision to fire the plaintiff. The motion also contained no affidavit from any official stating that he or she made the decision to fire the plaintiff and stating the reason for the decision. The motion was therefore flawed from the start....

"In the absence of an identified decision-maker and reason, the plaintiff-employee could not be expected to identify comparator employees - people situated similarly to her but outside the legally protected group. The reason is that the plaintiff cannot know who might have been similarly situated without knowing the identity of the decision-maker and the reason the employer relies upon for the decision."

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