United States District Court, S.D. Indiana
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [DOC. 34]
EVANS BARKER, JUDGE
Kimberly Achors claims that her employer, defendant FCA US,
L.L.C., is liable to her for various violations of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101, et seq. FCA moves for
summary judgment on all of Ms. Achors's claims and its
motion is now fully briefed and ready for decision. For the
reasons explained herein, the motion is granted despite a
denial in part on a single underlying, nondispositive issue..
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is material if it might affect the
outcome of the suit, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986), and a dispute about a
material fact is genuine only if, on the presented evidence,
a reasonable jury could return a verdict for the nonmoving
party, ” id., at 248.
the ‘”put up or shut up” moment in a
lawsuit, ' summary judgment requires a non-moving party
to respond to the moving party's properly-supported
motion by identifying specific, admissible evidence showing
that there is a genuine dispute of material fact for
trial.” Grant v. Trustees of Indiana
University, No. 16-1958, 2017 WL 3753996, *4 (7th Cir.,
August 31, 2017). “If there is no triable issue of fact
on even one essential element of the nonmovant's case,
summary judgment is appropriate.” Boss v.
Castro, 816 F.3d 910, 916 (7th Cir. 2016). A court
construes the cited evidence in the light most favorable to
the non-moving party and draws all reasonable inferences in
that party's favor. Darst v. Interstate Brands
Corp., 512 F.3d 903, 907 (7th Cir. 2008). However, the
non-moving party “is not entitled to the benefit of
inferences that are supported only by speculation or
conjecture.” Boss, 816 F.3d at 916. A court
does not weigh the evidence or determine credibility because
those tasks are reserved for the fact-finder at trial.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011).
as specifically noted, the following facts have been
established by the parties through citations to admissible
evidence in the record and have not been genuinely disputed
by cited evidence or they have been admitted in the
parties' pleadings. Fed.R.Civ.P. 56(c)(1)(A); Perez
v. El Tequila, L.L.C., 847 F.3d 1247, 1254 (10th Cir.
hired Ms. Achors on March 7, 1994. Complaint and Demand
for Jury Trial [doc. 1]
(“Complaint”), ¶ 10;
Defendant's Answer and Affirmative Defenses
[doc. 15] (“Answer”), ¶ 10. Ms.
Achors was first assigned to a transmission assembly line
where she continued to work until 2001. Defendant's
Brief in Support of Motion for Summary Judgment [doc.
35] (“Defendant's Brief”), Statement
of Material Facts Not in Dispute (“SMF”), at 5.
The parties dispute the specific title of Ms. Achors's
job but they do not dispute that she actually performed
2001, Ms. Achors experienced a seizure and was diagnosed with
Tardive dyskinesia, a disorder that results in seizures
occurring on average once a month. The medical statement that
she submitted to FCA restricted her from working in close
proximity to moving parts and flashing lights, which meant
that she no longer could work on or around the assembly line.
These restrictions were continuously in effect during her
employment. Defendant's Brief, SMF, at 5. For
the next fourteen years, FCA assigned her to jobs that
complied with her medical restrictions. Id. Ms.
Achors testified that FCA was “pretty good and found me
a lot of jobs” that all complied. Id., at 5-6.
No one at FCA questioned or rejected her medical
restrictions. Id., at 5-6.
her seizure and submission of medical restrictions in 2001,
Ms. Achors was off work for several months. Following another
seizure in 2012, FCA placed her on “Code 31”
status, which meant that she remained on the employment rolls
despite there being no work for her and she was paid
approximately ninety percent of her normal wage. She remained
on Code 31 status for two years, from 2012 to October 2014,
until FCA called her back because it found work that she
could perform. Plaintiff's Brief in Opposition
[doc. 60] (“Response”), Plaintiff's
Statement of Additional Material Facts (“SAMF”),
at 4, ¶ 2; Defendant's Reply [doc. 63]
(“Reply”), Response to Plaintiff's
Statement of Additional Material Facts (“RSAMF”),
at 6, ¶ 2; Defendant's Brief, Exhibit A,
Excerpts of Deposition of Kimberly Achors [doc. 35-1]
(“Achors Dep.”), at deposition pp.
Larrison's alleged comments.
“Mike” Larrison was “the Joint Team Leader
Selection Committee for the Kokomo Transmission Plant”
(a union-appointed position) and a co-worker of Ms. Achors.
They did not actually work together but occasionally saw each
other in the outdoor smoking area during breaks and while
walking around the plant. Defendant's Brief,
SMF, at 7. Before October 15, 2014, Mr. Larrison made certain
unwelcome comments to Ms. Achors. The first such comment
occurred after she returned to work in October 2014 following
her Code 31 status. While conversing with other employees in
the smoking area on a hot day, someone mentioned that
popsicles were not brought around and Ms. Achors expressed
surprise and said that “[w]e never got Popsicles”
(before her Code 31). Mr. Larrison responded, “Well,
how would you know? You never come to work, you know,
you've always been on sick leave.”
Response, SAMF, at 4, ¶ 1; Achors
Dep., pp. 64-66. He made additional, similar comments
prior to October 15, 2014: (1) he commented about her being
in the hospital, (2) he said that she is a “mental
patient, ” (3) he asked her husband, “How could
you stay with her? She's a bitch, ” and (4) he
asked her husband, “How could you stay with her when
she's crazy.” Id., at 4, ¶ 3;
Achors Dep., p. 72. Ms. Achors testified that Mr.
Larrison made many such comments to her, “one after
another.” Achors Dep., p. 72.
to Ms. Achors, on October 15, 2014, she and Mr. Larrison
attended a fundraiser at the plant and were present in the
dunk tank area. In return for a five dollar donation, a
thrower received five balls to throw at the tank. Mr.
Larrison was getting ready to get in the dunk tank when Ms.
Achors said to others that she would donate ninety dollars to
anyone who could dunk him. Ms. Achors testified that, after
someone told Mr. Larrison what she had said, he approached
her and said, “Yeah, well I know somebody that would
give $2, 000.00 if you go home and shoot yourself in the
head.” Defendant's Brief, SMF, at 7;
Achors Dep., pp. 72-73. On October 21, 2014, Ms.
Achors reported Mr. Larrison's alleged October 15, 2014,
comment to James Smith, an FCA Labor Relations representative
at the time, and Mr. Smith investigated. He interviewed Mr.
Larrison, who denied making the statement, and two witnesses
whom Ms. Achors had identified as having heard the comment,
but those witnesses denied hearing it. No disciplinary action
was taken against Mr. Larrison. Response, SMF, at
Achors testified that, after she had reported Mr.
Larrison's comment to Mr. Smith, Mr. Larrison said to her
in passing, “You was stupid. That was about dumb of you
to do something like that.” Response, SAMF, at
4, ¶ 4; Achors Dep., pp. 78-79. Mr. Larrison
has testified that he did not make the comment.
Defendant's Brief, SMF, at 8 n. 1.
11, 2014, incident.
November 11, 2014, Ashley Baugues, a Safety Specialist at the
Kokomo Transmission Plant, told Deidre Fultz, a Manufacturing
Manager, to find a job for Ms. Achors that would accommodate
her medical restrictions. Before this date, Ms. Fultz had not
met or interacted with Ms. Achors, and she was unaware of her
restrictions and previous accommodations. Ms. Baugues
explained Ms. Achors's restrictions to Ms. Fultz and Ms.
Fultz responded that they could create an accommodating work
area where Ms. Achors would be prevented from having to see
moving objects. Ms. Fultz helped set up the workstation where
Ms. Achors would be performing her new job of taking parts
out of a tub and placing them into a cart to be taken to the
assembly line. Curtains were installed to block Ms.
Achors's view of “vehicular traffic”
(apparently, motorized carts driven by employees), and she
was supplied with an ergonomic chair. In performing these
tasks, Ms. Achors was able to face toward the wall.
Defendant's Brief, SMF, at 8-9.
Ms. Achors arrived at her work area, she questioned why the
curtains were placed to block the aisleway but would not
block her view of a moving conveyor belt, which she claimed
would be visible when she would turn to retrieve parts from
the tubs. Ms. Achors testified that Ms. Fultz responded that
the aisleway was screened so that other employees would not
stop their passing carts and talk to her, and that she should
not worry about viewing the conveyor belt, since she was to
stare at the wall. Because this would entail her having such
a limited view, Ms. Achors asked that her union steward be
called. Defendant's Brief, SMF, at 9;
Response, Statement of Disputed Material Facts
(“SDMF”), at 3; Achors Dep., pp. 86-87.
Achors testified that, at that point, a heated altercation
commenced between her and Ms. Fultz, with Ms. Fultz screaming
at her and spit getting on her face and in her mouth. Ms.
Achors told Ms. Fultz to “get the f out of my
face.” Defendant's Brief, SMF, at 9;
Response, SDMF, at 5, ¶ 10; Reply,
RSAMF, at 9, ¶ 10; Achors Dep., p. 87. Ms.
Fultz asked Ms. Achors to get on her cart to go to Labor
Relations and Ms. Achors refused. Ms. Fultz called security.
Security officers arrived and asked for Ms. Achors's
badge. She refused to give it to them and told them not to
touch her. Ms. Achors's union committeeman and union
steward arrived at the area, as did Mr. Smith and his boss,
Doug Lutes, the Labor Relations Supervisor. Mr. Lutes asked
for Ms. Achors's badge and she complied. Either the union
committeeman and steward walked her out of the Plant,
Defendant's Brief, SMF, at 10; Achors
Dep., pp. 87-89, or security escorted her out, Fultz
Dep., p. 23.
Achors was indefinitely suspended as a result of the
incident. Ms. Fultz and Mr. Smith denied making the decision
to suspend her. Consistent with standard practice at the
plant in cases of suspension, Ms. Achors's union grieved
the suspension and Mr. Smith investigated the incident as
part of the grievance process. He considered a statement
written by Ms. Fultz and signed by her and Ms.
Baugues and he interviewed other witnesses. Ms.
Fultz's statement related that Ms. Achors screamed and
yelled throughout the incident; engaged in threatening
behavior; and refused to surrender her badge to security
before finally handing it to Mr. Lutes. An agreement was
reached between FCA and the union whereby Ms. Achors's
indefinite suspension was amended to allow her to return to
work on January 20, 2015. Defendant's Brief,
SMF, at 10-11; Response, SDMF, at 3.
response, Ms. Achors has abandoned her claims under the
Family Medical Leave Act, 29 U.S.C. § 2601, et
seq., Complaint, Count Two, and her ADA claims
based on her termination, id., Count One
¶¶ 50, 52, and last clause of 51.
Response, at 1 n. 1. What remain are three claims
under the ADA: (1) FCA failed to provide her with reasonable
accommodations for her Tardive dyskinesia; (2) FCA's
suspension of her in November 2014 because of her disability,
her requests for accommodation, and/or her complaint of
harassment because of her disability; and (3) FCA subjected
her to a hostile work environment because of her disability.
Response, at 7.
elements of a failure-to-accommodate claim under the ADA are:
(1) the plaintiff is a qualified individual with a
disability; (2) her employer was aware of her disability; and
(3) her employer failed to reasonably accommodate her
disability. Equal Employment Opportunity Commission v.
Autozone, Inc., 809 F.3d 916, 919 (7th Cir. 2016). There
is no dispute for purposes of the present motion that Ms.
Achors has a disability and that FCA was aware of it. Ms.
Achors claims that FCA failed three times to reasonably
accommodate her Tardive dyskinesia: (1) a job created for her
in 2012 involved moving machinery; (2) the workstation
created by Ms. Fultz on November 11, 2014, allowed Ms. ...