United States District Court, S.D. Indiana, Indianapolis Division
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 ...