Lane v. Indianapolis Public Schools

          ENTRY

          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Toni Lane worked as a bus driver and bus attendant for Defendant Indianapolis Public Schools (“IPS”). Since her tenure with IPS began in 2014, Ms. Lane requested and, for the most part, received accommodations for various medical conditions. But in 2017, IPS terminated Ms. Lane for hitting a student's shoulder to wake him up. Ms. Lane brought suit, contending that IPS failed to accommodate her conditions during her employment and then fired her not for pushing the student, but due to her disability and out of retaliation for her accommodation requests. Several of Ms. Lane's claims fail for failure to exhaust administrative remedies because they were not raised in her May 2017 EEOC charge. Others fail for lack of evidence. Her failure-to-accommodate claim, however, survives in a very limited form. Therefore, as fully explained below, the Court GRANTS IN PART and DENIES IN PART IPS's Motion for Summary Judgment. [Filing No. 56.]

         I.

         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. SeeFed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record 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). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         II.

         Background ^[1]

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. Hiring and Training as Bus Driver

          Ms. Lane began working for IPS as a school bus driver on July 30, 2014. [Filing No. 56-2 at 5.] Bus drivers are responsible for monitoring and safely transporting students. [Filing No. 56-2 at 6; Filing No. 56-1 at 2.] When she was hired, Ms. Lane worked about 30 hours per week and was paid at a rate of $14.93 per hour. [Filing No. 56-2 at 5; Filing No. 56-2 at 7.] Ms. Lane worked as an “on-call, ” or substitute, bus driver. [Filing No. 56-1 at 2; Filing No. 56-2 at 7.] On-call drivers were assigned routes based upon seniority. [Filing No. 56-2 at 7.]

         Ms. Lane began her employment with about two months of training, which addressed IPS's harassment policies, equal employment opportunity policies, and student management policies, among other things. [Filing No. 56-2 at 6-8; Filing No. 56-1 at 2-3; Filing No. 56-1 at 10; Filing No. 56-3 at 2-9.] This included the following instruction: “Don't grab, push, slap, hit, or kick a child.” [Filing No. 56-3 at 6; Filing No. 56-2 at 6.]

         When IPS receives a request for disability accommodation, it schedules what it calls a “Section 504/ADA conference” with the ADA coordinator, the requestor, the requestor's supervisor, and anyone else who may provide information or expertise. [Filing No. 56-1 at 3.] After the conference, IPS identifies a possible accommodation for the requestor. [Filing No. 56-1 at 3.]

         B. First Accommodation Request

         Seven months in to her employment, Ms. Lane began feeling pain in her right shoulder from a rotator cuff injury she had suffered while driving a bus for her previous employer. [Filing No. 56-2 at 5; Filing No. 56-2 at 12-13.] Ms. Lane's doctor recommended that she stop driving. [Filing No. 56-2 at 5.] On January 28, 2015, Ms. Lane submitted a written request for accommodation, explaining that she risked reinjuring her rotator cuff if she continued driving. [Filing No. 56-3 at 11; Filing No. 56-2 at 12.] Ms. Lane submitted documentation from her doctor recommending that she no longer drive. [Filing No. 56-3 at 12-13.]

         IPS held an ADA conference on February 11, 2015, to address her request for accommodation. [Filing No. 56-3 at 14-18; Filing No. 56-2 at 15.] Ms. Lane, a union representative, a human resources official, and the ADA coordinator all attended. [Filing No. 56- 1 at 4.] On February 12, 2015, IPS approved Ms. Lane's accommodation request and transferred her to an on-call bus attendant position. [Filing No. 56-3 at 18; Filing No. 56-1 at 4; Filing No. 56-2 at 16.]

         C. Bus Attendant Position

         Ms. Lane began her new position as an on-call bus attendant around February 15, 2015. [Filing No. 56-2 at 16.] Bus attendants are responsible for monitoring students while on the bus, helping students cross the street, and making sure that all students leave the bus when it arrives at its destination. As part of her position transfer, Ms. Lane's wage was reduced to $10.03. [Filing No. 56-1 at 5; Filing No. 56-2 at 16.]

         Dietra Shelton, vice president of the local union, represented IPS employee Adam Stamps in a negotiation with IPS and avers that Mr. Stamps was permitted to retain his driver's pay after transferring to a bus attendant position.^[2] [Filing No. 72-6 at 1.] IPS records, however, indicate that Mr. Stamps was “[d]emoted due to excessive accidents in driving position” and given a pay reduction from $16.06 per hour to $12.22 per hour. [Filing No. 76-1 at 5-6.] No. record evidence indicates whether Mr. Stamps suffered from a disability.

         Sometime in August 2016, Ms. Lane, along with all of the other on-call bus attendants, was promoted to a regular, fixed bus attendant position. [Filing No. 56-2 at 16.] From that point on, IPS no longer employed on-call bus attendants. [Filing No. 56-2 at 16.] Bus routes were then assigned by a bidding procedure based upon seniority. [Filing No. 56-1 at 5.]

         D. Second & Third Accommodation Requests; First EEOC Charge

         On August 11, 2016, Ms. Lane filed her second request for accommodation. [Filing No. 56-2 at 18; Filing No. 56-3 at 22.] Ms. Lane wrote as follows:

I have Lupus and the heat causes my skin to itch and it makes me sleepy and tired. I need an air conditioned bus it doesn't permit me from performing my duties as a bus attendant. It's because the buses that Mr. Banner put me on doesn't have air conditioning. I can perform my duties very well with a bus that has air!

[Filing No. 56-3 at 22.] Ms. Lane also provided a statement from her doctor, who explained that Ms. Lane had “[s]ystemic lupus with kidney disease, chronic asthma” and “should not become dehydrated as this could worsen kidney function[;] asthma exacerbation.” [Filing No. 56-3 at 23.] Further, the doctor explained that Ms. Lane should “remain in airconditioned environment to limit fluid loss from sweating and prevent dehydration and breathing difficulties.” [Filing No. 56-3 at 23.]

         The next day, August 12, 2016, Ms. Lane submitted an additional accommodation request. [Filing No. 56-3 at 24.] In the “Accommodation Requested” section of the form, Ms. Lane wrote: “Not being able to breathe is the only concern I have of performing my job, so having air conditioning on the bus to attend to kids so the driver can get us safely to and from school.” [Filing No. 56-3 at 24.] Ms. Lane submitted a second doctor's statement with this request, which said that Ms. Lane had “[d]ifficulty breathing in heat” due to lupus and lung and breathing issues. [Filing No. 56-3 at 25.] The doctor recommended that Ms. Lane be accommodated with “[a]ir on [b]us.” [Filing No. 56-3 at 7.]

         Ms. Lane filed her first EEOC charge on August 18, 2016, alleging disability discrimination. [Filing No. 56-3 at 40.] In relevant part, Ms. Lane alleged:

I am a qualified individual with a disability. My position is bus attendant. I have had the disability my entire employment. Due to my disability, i require a bus with air conditioning as an accommodation. In the past, I was assigned to a bus with air conditioning; however, this year I was assigned to a bus with no air conditioning. I have provided IPS a written ADA accommodation request, including medical documentation certifying my disabilities and need for an air conditioned bus. However, on August 17, 2016 I was placed on unpaid leave and told not to return to work until September 14, 2016 when there will be a meeting regarding any accommodation request. Currently there are several buses with air conditioning that are not being used that IPS could use to accommodate me.

[Filing No. 56-3 at 40.] The EEOC issued Ms. Lane a right-to-sue letter on April 7, 2017. [Filing No. 56-3 at 41.]

         IPS conducted a conference regarding Ms. Lane's accommodation requests on August 19, 2016. [Filing No. 56-2 at 22; Filing No. 56-3 at 26.] Ms. Lane, a union representative, a human resources official, and the ADA coordinator all attended. [Filing No. 56-3 at 26.] Among other things, the parties discussed the availability of airconditioned buses and the possibility that Ms. Lane could work at the transportation base if no airconditioned buses were available. [Filing No. 56-2 at 22.] IPS requested additional information regarding the temperatures at which Ms. Lane could safely work and agreed to temporarily assign Ms. Lane to an airconditioned bus in the meanwhile. [Filing No. 56-2 at 22-23; Filing No. 56-3 at 26-30.] Ms. Lane was immediately reassigned to the airconditioned bus. [Filing No. 56-2 at 22-23; Filing No. 56-3 at 26-30.]

         Opportunities for airconditioned buses were limited because IPS upgraded its fleet in July 2016 with new propane buses that did not have air conditioning. [Filing No. 56-1 at 5.] Buses for students with special needs were the only buses with air conditioning remaining in regular service. [Filing No. 56-1 at 5.] Moreover, because of the seniority route-bidding procedure in place, IPS had to collaborate with the union before it could move another employee from an assigned route. [Filing No. 56-1 at 6.]

         E. September 2016 Relocation to ...