The Seventh Circuit’s opinion contains useful guidance for employees suffering disability discrimination and harassment. One key takeaway: plaintiffs should not be quick to assume – in charging, pleading and proving a hostile-work-environment claim – that harassment always constitutes one continuing violation. “[A] substantial passage of time without incident known to the employer, a change in the employee’s supervisors, [or] an intervening remedial action by the employer” may break the chain.
Ford v. Marion County Sheriff’s Office, No. 18-3217 (7th Cir. Nov. 15, 2019): Plaintiff Ford, a deputy sheriff, had her career sidelined by an on-duty injury to her right hand. After it became apparent that she could not be cleared to return to her old duties, she was demoted to a civilian role as a Main Control visitation clerk. There, she alleges, she suffered rounds of harassment because of her disability during October 2013 to December 2014, and again from January 2015 to July 2016. The alleged harassers were different in each case.
The 2013-14 harassment, allegedly perpetrated by two coworkers, took the form of “mock[ing] Ford’s workstation accommodations, adjust[ing] Ford’s chair into uncomfortable positions, and disrupt[ing her] work with loud speakerphone conversations.” Defendant “ultimately decided to transfer [those co-workers] out of the Visitation Office effective December 27, 2014 and January 3, 2015, respectively. At trial, Ford said that [their] departure ‘remedied’ their conflict.”
The alleged 2015-16 harassment was an array of disputes between the plaintiff and a co-worker over workplace policies (visitation and shift assignments), and culminated with the alleged harasser talking about “about getting a gun and blowing [Ford]’s brains out,” although this was later described entirely unrelated to Ford. Both employees were eventually reprimanded for their conduct, and the alleged harasser was assigned to other duties away from Ford.
By “August 2017, Ford secured a transfer to the sex-and-violent-offender registry unit, where she continued to work for the Sheriff’s Office at the time of trial.”
The district court granted summary judgment on Ford’s claims of ADA harassment (during 2015-16), reasonable accommodation, and promotion claims. Two other claims – harassment (during 2013-14) and denial of a scheduling accommodation – went to trial, but both resulted in a verdict for the defendant.
On appeal, Ford’s leading argument was that the district court erred by disaggregating the earlier and later hostile-work-environment events on the ground that they were separate violations. Ford argued that under National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), hostile-work-environment is a non-discrete violation that continues through the final act of harassment. (Worth noting here is that the Seventh Circuit, for the first time, officially recognizes a claim of disability discrimination under the ADA.)
The panel – while agreeing that Morgan requires courts generally to “consider all events that belong to a ‘single unlawful employment practice,’ … regardless of whether they fell within the statutory time period” – holds that courts may nevertheless “grant partial summary judgment as to different unlawful employment practices in one lawsuit,” and properly did so here.
The panel acknowledges that it can be a “difficult question … whether and when a plaintiff’s hostile work environment claim comprises more than one unlawful employment practice under the rule in Morgan.” It suggests several “factors” that might affect the answer. (1) “The simplest factor is time: A significant gap between alleged incidents of discriminatory harassment can sever the hostile work environment claim.” Here, 18 months separated the periods of alleged harassment. (2) “A change in managers can affect whether incidents are related.” In this case there was a switch in managers. (3) Finally, “intervening actions” such as a “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring” may break the chain. Here, the alleged harassers were removed from the scene.
In light of these factors, the Seventh Circuit affirms summary judgment on later cycle of alleged harassment separate from the first. The later cycle, the panel holds, fails both because the incidents that were related to plaintiff’s disability were either too mild to meet the “severe or pervasive” test (Ford told that she should be required to prove her disability in order to avoid shifts in the Main Control Office, and being challenged about whether she was really ‘in as much pain as [she] was claiming to be'”) or else were promptly remedied by transferring the alleged harasser. “Not until the written complaint in June 2016 was the Sheriff’s Office on notice that Ford believed [co-worker] was harassing her based on her disability. The Office then took prompt action, transferring [co-worker] out of the Visitation Office the next month.”
The panel affirms summary judgment on two other claims. Ford’s claim that her demotion to visitation clerk was not a reasonable accommodation for her disability failed because she failed “to come forward with evidence that a more equivalent position for which she was qualified was vacant at the relevant time.” The jobs Ford pointed to in the record were either during a different time-frame or there was otherwise “uncontradicted evidence that [vacant] dispatcher positions involved duties that Ford could not perform even with accommodation.” (The panel also rejects Ford’s attempt to recast the clerk assignment as a substantive discrimination claim: “We have trouble imagining how a demotion that qualifies as a reasonable accommodation required by the ADA can, at the same time, constitute disability discrimination or retaliation prohibited by the ADA.”)
The panel also affirms summary judgment on four allegedly discriminatory and retaliatory denials of “four applications for promotion between March 2016 and February 2017.” It holds that none of the comparable employees identified by Ford applied for the four positions plaintiff sought. “The record discloses little about any of the people who were named to the jobs” beyond conclusory allegations in the plaintiff’s declaration. (The panel notes in a footnote that although Ford did not identify all four promotions in her EEOC charge, “an investigation of the first denied promotion could reasonably be expected to have delved into the later denials that occurred in the next few months” and thus “[t]here was no need for Ford to have filed a third EEOC charge alleging the later denials were also retaliatory.”)
Regarding the claims that went to trial, the panel finds no trial errors. (1) The exclusion of background evidence prior to October 2013 was “was a reasonable way to keep the trial focused on the disputes the jury would actually need to decide,” and indeed the plaintiff herself made use of the exclusion to keep out evidence of her disciplinary history. (2) An instruction that “[t]he ADA does not entitle a disabled employee to the accommodation of her choice” was not reversible error, because the jury never reached the undue-hardship issue, and so the instruction could not have “unfairly affect[ed] the outcome of the trial.”