Opinion
No. 99 CV 8414
March 9, 2001
MEMORANDUM OPINION AND ORDER
On December 27, 1999, plaintiffs Florence Kolecyck-Yap ("Yap"), Donna Cline ("Cline"), and Felix Mesin ("Mesin"), filed a four-count complaint against defendant MCI Worldcom, Inc. ("MCI"). Counts I, II and III each seek damages pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Count I alleges a claim on behalf of Yap. Count II is on behalf of Cline and Count III is on behalf of Mesin. Count IV seeks damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and pursuant to 42 U.S.C. § 1981 on be half of Mesin. On January 16, 2001, MCI filed this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure as to each count in the complaint. On February 9, 2001, plaintiffs Yap and Cline responded to MCI's motion for summary judgment. As of the date of this opinion, plaintiff Mesin has not filed a response to MCI's motion for summary judgment. Having considered the matter fully, for the reasons stated herein, MCI's motion for summary judgment is GRANTED.
STATEMENT OF FACTS
The following facts are undisputed and are taken from the defendant's and plaintiffs' Local Rule 56.1(a) (b) statement of material facts and accompanying exhibits. As explained fully later in this opinion, as to plaintiff Mesin, all of defendant's facts submitted in its Local Rule 56.1(a) statement are accepted as true pursuant to Local Rule 56.1(b)(3)(B).
Prior to December, 1998, all three plaintiffs were employed by MCI in its Downers Grove, Illinois facility and all three plaintiffs were subordinate to Art Burns ("Burns"). In December, 1998, plaintiffs' employment with MCI was terminated. At that time, Burns had been a manager at the Downers Grove facility since 1991 and an employee of MCI since 1983. In 1998, Burns reported to Senior Manager, Les Pryor ("Pryor"), who had been a manager for MCI since 1984 and a Senior Manager since 1991.
In or around September, 1998, Worldcom merged with MCI. In late October or early November, 1998, Pryor informed Burns that there was going to be a corporate-wide reduction-in-force ("RIF"). The RIF would include a 30 to 40% reduction across all 102 subordinates of Pryor, which included Burns' subordinates. Pryor instructed the managers who reported directly to him, including Burns, to provide him with a list of their respective subordinate employees ranking them in terms of their utility to the entire organization.
At that time in 1998, Burns managed at the Downers Grove MCI facility, the operations data center, which was a 24 hour a day, 7 day a week, 365 day a year operation. There were fourteen people under Burns' management: twelve people worked as Technical Specialists, one worked as a Network Specialist, and one worked in the MCI mailroom/print-site. The twelve Technical Specialists worked three shifts with four employees per shift: the first shift from 7:45 a.m. to 4:15 p.m.; the second shift from 3:45 p.m. to 12:15 a.m.; and the third shift from 11:45 p.m. to 8:15 a.m.
In Burns' initial ranking, Burns ranked Mesin, the holder of the mailroom/print-site position, last out of his fourteen subordinates. Yap was ranked third to last. Cline was ranked fourth to last. Employee Michelle Boyle ("Boyle") was ranked second to last. According to shifts, Yap was ranked second to last in the first shift, with Boyle ranking as the last person on the first shift. Cline was ranked as the lowest person on the second shift. At the time Burns provided his initial list to Pryor, Burns did not know how many of the fourteen positions would be eliminated, nor did Burns know that the mailroom/print-site position would be eliminated entirely.
After the initial ranking, Pryor informed Burns that he was to lose four people from his organization. Pryor's decision to eliminate four people from Burns' group was based on the fact that the technology that Burns' organization serviced was being downsized and discontinued by MCI. As a result, Burns' organization was not functionally as important to MCI's business strategy as it had been previously. Accordingly, four positions were chosen to be eliminated from Burns' organization and MCI's core business of long distance telephone service would remain unaffected.
With the knowledge that four persons were to be eliminated from Burns' organization, it was determined that the mailroom/print-site position, and one person from each shift would be eliminated to carry out the RIF. The decision to eliminate the mailroom/print-site position was made because over the past several years MCI had decreased its utilization of the mailroom/print-site. Additionally, the volume of business in the mailroom/print-site had dropped significantly over the past years, and the products offered out of the mailroom/print-site were being discontinued by MCI. Moreover, both Burns and Pryor had previously run the operations center with three employees per shift, and without a mailroom/print-site.
After the decision was made to eliminate the mailroom/print-site position, the utility of the remaining people in Burns' organization had to be re-evaluated to take into consideration that the remaining Technical Specialists on each shift would have to be able to perform their existing positions as well as perform the mailroom/print-site functions. In addition to these modified functions, Pryor placed an emphasis on eliminating salary expense pursuant to the corporate-wide budget reductions included in the RIF. Burns ultimately re-evaluated his remaining personnel on the following criteria: (1) the skills and abilities of the employees to perform the modified duties as a technical specialist and a mailroom/print-site person; (2) the overall utility of the employees to the department; and (3) salary. Seniority was not a consideration in any of the evaluations.
A. Plaintiff Florence Kolecyck-Yap's Employment with MCI
Burns hired Yap in or around September, 1996, as a Technical Specialist. Prior to being hired with MCI, Yap disclosed to Burns that she suffered from a bad back. Yap told Burns that the she was under restrictions which prevented her from lifting in excess of 15 to 25 pounds. After hiring Yap as a Technical Specialist, Burns was able to accommodate all of Yap's back conditions.
In or around December, 1996, Yap visited with Dr. Peter Freebeck for the first time, and had a sleep study performed. Dr. Freebeck ultimately diagnosed Yap with obstructive sleep apnea. At the time of this diagnosis, Yap worked the first shift in the operations center. In or around April, 1997, Yap underwent surgery to correct her sleep apnea. Around December, 1997, Dr. Freebeck recommended that Yap undergo a second surgery, a tracheotomy, to fully correct her sleep apnea. Yap declined the second surgery at that time.
As a result of her sleep disorder, Yap informed Burns that she could not work on the second or third shift. Additionally, sometime during 1998, Yap requested that Burns change her start time on the first shift from 7:45 a.m. to 9:00 a.m. Yap's sleep apnea caused her to sleep late, and as a result, Yap requested a change in her start time in order to allow her to sleep late and still get to work on time. Burns accommodated Yap's request, and Yap was the only employee on the first shift scheduled to start at 9:00 a.m. each work day. Eventually, Yap asked Burns to accommodate her sleeping disorder further by allowing Yap to start work as soon as she could get in. By eliminating Yap's start time all together, Burns allowed Yap to wake up naturally, further accommodating the sleep difficulties Yap was having. Burns allowed Yap to make up the lost time later the same day or sometime time in the future.
Burns recommended Yap for termination pursuant to the RIF despite the fact that Yap initially ranked higher than Michelle Boyle on the first shift because Yap lacked mailroom/print-site experience, Yap's salary was higher than Boyle's, and because Yap was physically unable to perform all of the duties required in the mailroom. Prior to becoming a Technical Specialist, Boyle initially worked in the mailroom/print-site. Yap, on the other hand, never worked in the mailroom/print-site. In addition, Yap's annual salary was $38,171.01 where Boyle's salary was approximately $25,000. Finally, the responsibilities of the mailroom/print-site position included a manual labor element which Yap could not perform due to her back condition. Accordingly, based on the re-evaluation, Boyle came out ahead of Yap on the first shift and Yap was terminated pursuant to the RIF.
Eventually, after her termination, Yap underwent the recommended second surgical procedure in January, 1999, and as a result no longer suffers from obstructive sleep apnea.
B. Plaintiff Donna Cline's Employment at MCI
On March 3, 1997, Burns hired Cline as Technical Specialist. At the time of her termination, in December, 1998, Cline was assigned to the second shift at the operations center. Cline suffered from sleepiness during the time period she worked at MCI. Cline, however, does not contend that she had difficulty in falling or staying asleep. Cline's claims that she felt she slept too much. Cline, however, has never been diagnosed with narcolepsy and tests confirm that she does not have narcolepsy.
Sometime after her start with MCI, but before her termination, Cline visited Dr. Freebeck concerning her sleepiness. On December 16, 1998, however, Cline reported to Dr. Freebeck that she felt good, was sleeping through the night and felt refreshed in the mornings. On December 17, 1998, Cline's personal physician, Dr. Brian O'Leary, saw Cline for a medical visit. In Dr. O'Leary's opinion, Cline did not suffer from any sleep disorder. Additionally, Dr. O'Leary stated that any sleeping condition from which Cline may have been suffering was not disabling, as of December, 1998. Finally, Dr. O'Leary stated that any sleep condition from which Cline may have been suffering did not substantially limit her daily activities.
Consistent with Dr. O'Leary's opinion, Cline's admits that her sleepiness did not affect her ability to work at MCI. In fact, Cline admits to never letting health related conditions affect her work. Cline never asked Burns for any accommodations related to her health, and Cline never provided MCI with any written documentation relating to any sleep condition.
Burns recommended Cline for termination pursuant to the RIP because upon the final evaluation Cline ranked last among the personnel on the second shift. In the initial evaluation, Cline also ranked last in the second shift and initially, in comparing all of the employees in the data center, only Yap, Boyle, and Mesin ranked lower than Cline. In comparing Boyle to Cline, Cline had no mailroom/print-site experience and Cline had a higher salary than Boyle. Accordingly, Cline was terminated pursuant to the RIF.
C. Plaintiff Felix Mesin's Employment at MCI
In November, 1996, Burns hired Mesin as a Technical Specialist on the second shift. In or around January, 1998, Burns placed Mesin on probation for performance reasons. Mesin admits that he was placed on probation because Burns perceived his performance as not being good and not because of his race, nor religion. None of the remaining 13 MCI employees reporting to Burns ever had any disciplinary problems while working for Burns. In or about late September, 1998 or early October, 1998, Burns told Mesin that business needs dictated that Mesin transfer to the third shift as a Technical Specialist. At that time, Mesin told Burns and Pryor about his difficulty sleeping during the day and discussed his reluctance to transfer to the third shift. At these initial discussions, Mesin made no mention that he suffered from any sleep disorder.
On October 2, 1998, Mesin visited Dr. Vadim Edelstein to discuss his inability to sleep during the day and his reluctance to work the third shift. As a result of this visit, Dr. Edelstein did not diagnosis Mesin with a sleeping disorder. In addition, Dr. Edelstein did not refer Mesin to a sleep specialist, and Dr. Edelstein did not prescribe Mesin any medicine for a sleep disorder and Mesin did not take part in a sleep study. Dr. Edelstein, however, did write a note on behalf of Mesin which stated that due to certain medical reasons, he strongly advised Mesin to avoid working the third shift.
Mesin presented Dr. Edelstein's note to Burns in October, 1998, and MCI conducted its own investigation as to Mesin's condition. Dr. Edelstein spoke directly with MCI and told MCI that it was his opinion that Mesin did not have a sleeping disorder. Around the time of the investigation, Burns informed Mesin of an open mailroom/print-site position that was not on the third shift. Burns warned Mesin, however, that the mailroom/print-site had already been reduced to one position and that there was no guarantee that the position would be there forever. Mesin, nonetheless, accepted the mailroom/print-site position to avoid working the third shift and remained in the mailroom/print-site position until his termination in December, 1998. In the new mailroom/print-site position Mesin worked from 2 p.m. to 10:30 p.m. initially, and then from noon to about 8:00 p.m.
Mesin admits that he was not substantially limited in any major life activities due to a sleep disorder while employed at MCI. Mesin was an at-will employee throughout his entire employment with MCI, and not a party to any contract with MCI. Moreover, Mesin never informed Pryor or Burns that he was Semitic, and no one at MCI knew he was Semitic. Although Mesin felt that he could not work the third shift for MCI, Mesin had previously worked the third shift with a prior employer for approximately two years, between March, 1993 and March, 1995.
Burns recommended that Mesin be terminated pursuant to the RIF because the decision had been made to eliminate the mailroom/print-site position, the position which Mesin held at the time. Furthermore, Burns recommended that Mesin be terminated pursuant to the RIF because Mesin ranked last among all of his employees, in both the initial and final evaluations, and because Mesin had previously been on probation for poor performance.
In summary, Burns recommended termination of the mailroom/print-site which consisted of one employee, Mesin, as well as the lowest ranked person from each of the three shifts: Yap from the first shift, Cline from the second shift, and employee Demetrius Johnson ("Johnson") from the third shift. Pryor adopted and implemented Burns' recommendations in December, 1998. Yap, Cline and Mesin initiated this suit one year later on December 27, 1999.
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. 106 S.Ct. at 2511.
As stated earlier, Mesin, failed to file any response to defendant's motion for summary judgment. All three plaintiffs started this lawsuit jointly with the same counsel, Mr. Ian Brenson. Additionally, there has been no withdrawal by Mr. Brenson as counsel of record on behalf of plaintiff Mesin. Accordingly, this court considers Mesin represented by counsel and not a pro se litigant. Nonetheless, despite being represented by counsel, Mesin, without explanation, filed nothing in response to this motion, only plaintiffs Yap and Cline filed responses pursuant to Local Rule 56.1(b).
The Federal Rules of Civil Procedure forbid a district court from acting on a summary judgment motion without giving the nonmoving party a reasonable opportunity to appropriately respond. Fed.R.Civ.P. 56. In addition, Rule 56 of the Federal Rules of Civil Procedure does not authorize the granting of summary judgment as a sanction for failing to file a proper response to a motion for summary judgment. See Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993). Rule 56(e) permits summary judgment only "if appropriate — that is, if the motion demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Id. Since plaintiffs Yap and Cline provided a proper response to MCI's motion for summary judgment, this court must assume that plaintiff Mesin, who was represented by the same counsel, had ample opportunity as well to file appropriate material to oppose this motion for summary judgment. In addition, by failing to file a proper Local Rule 56.1(b) statement, Mesin admits, in effect, to all factual assertions presented by the defendant. See Local Rule 56.1(b)(3)(B); Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 689 (7th Cir. Aug. 22, 2000) (accepting as true all material facts set out in Local Rule 56.1(a) statement, where non-moving party has failed to comply with Local Rule 56.1(b)).
Having determined that plaintiff Mesin had ample opportunity to respond to this motion for summary judgment, this court will now evaluate the merits of MCI's motion for summary judgment. This court will determine whether summary judgment is proper as a matter of law by reviewing the record and taking as true all the facts presented by MCI in regard to Mesin while drawing all justifiable inferences in favor of the plaintiffs as appropriate. See Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565, 568 (7th Cir. 1992).
ANALYSIS
I. A Prima Facie Case under the ADA
The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 477, 119 S.Ct. 2139 (1999). Specifically, the ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112 (a).
The undisputed evidence in this case reveals that none of the plaintiffs have any direct evidence that they were terminated from MCI because of their alleged sleep disorders. See Plaintiff's Local Rule 56.1 (b)(3) Response to Defendant's Statement ¶¶ 129 (Mesin), 144 (Yap), and 160 (Cline). When, as in this case, there is no direct evidence of discrimination, a plaintiff must establish a prima facie case of discrimination under the familiar scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), originally established for Title VII cases and thereafter refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). See DeLuca v. Winer Industries, 53 F.3d 793, 797 (7th Cir. 1995).
Under McDonnell, in order to establish a prima facie case of discrimination under the ADA, all three plaintiffs must individually establish that: (1) they belong to a protected group; (2) they performed their job satisfactorily; (3) they was subjected to an adverse employment action; and (4) that similarly situated employees, who are not members of the protected group, received more favorable treatment. See DeLuca, 53 F.3d at 797. If any plaintiff fails to prove any of these elements, then that plaintiffs claim fails in its entirety. Id. If, however, any plaintiff carries their initial evidentiary burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the defendant's employment action. Id. If the defendant clears this hurdle, then the burden shifts once more to the plaintiff to show that the defendant's offered reason is a pretext for discrimination. Id.
In this case, there is no need to reach the later inquiries of theMcDonnell Douglas analysis because each plaintiff here fails to provide sufficient evidence on the record to prove a prima facie case of discrimination under the ADA. All three plaintiffs have failed to establish an issue of material fact that they are a members of a protected class under the ADA. In addition, plaintiff Mesin has failed to establish a genuine issue of material fact that he performed his job at MCI satisfactorily. Finally, all three plaintiffs have failed to establish a genuine issue of material fact that similarly situated employees received better treatment from MCI. As a result, summary judgment as to Counts I, II and III in favor of MCI is necessary as a matter of law. Additionally, summary judgment in favor of MCI on Counts I, II and III of the complaint is necessary as a matter of law because each of the plaintiffs have failed to establish a genuine issue of material fact that MCI's proffered legitimate nondiscriminatory reasons as to why each plaintiff was terminated are a pretext for discrimination.
A. Prima Facie Case: Definition of a Protected Person under the ADA
To demonstrate membership in a protected class under the ADA, a plaintiff must establish that he is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111 (8). Stated another way, a plaintiff must establish: (1) a disability; (2) that he is qualified for the position in question; and (3) if unable to perform the essential functions of the position in question without accommodation, the existence of a reasonable accommodation that would allow performance of the position's essential functions. In this case, each plaintiff fails to establish an issue of material fact that they were disabled as defined under the ADA. In addition, plaintiffs Yap and Cline have failed to establish an issue of material fact that they were qualified for the position in question.
1. Protected Person: Definition of Disability under the ADA
Under the ADA, a disability is defined as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Merely having a physical impairment is insufficient to be considered disabled under the ADA. Rather to constitute a disability, "the impairment must substantially limit one or more of the individual's major life activities." Id.
In this case, none of the three plaintiffs invokes any legal analysis as to how any of them are disabled under the ADA. The complaint merely concludes that all three plaintiffs suffer from sleep disorders and that the sleep disorders are physically impairments that substantially limit the major life activity of sleeping. See Complaint ¶ 11. The plaintiffs each fail to presented sufficient evidence in the record to establish that their sleep disorders substantially limited any of their major life activities, including sleep.
According to the Supreme Court of the United States, consideration of whether any plaintiff has a disability involves three initial steps. See Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202 (1998). The court must first determine whether the plaintiff has an impairment. Id. Next, the court must identify the life activity which the plaintiff claims has been substantially limited and determine whether it constitutes a major life activity under the ADA. Id. Finally, by "tying the two statutory phrases together," the court must determine "whether the impairment substantially limit[s] [plaintiff's asserted] major life activity." Id. Determining whether a claimed impairment constitutes a disability and whether an identified endeavor constitutes a major life activity under the ADA are questions of law for the court. Id.
The text of the ADA does not define "impairment." Courts, however, may seek guidance from the EEOC regulations issued to implement Title I of the ADA. Pursuant to these regulations, a physical or mental impairment is:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or physical disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.29 C.F.R. § 1630.2 (h). This regulation is meant to be "a representative list of disorders and conditions constituting physical impairments, including such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and . . . drug addiction and alcoholism." See Brandon, 118 S.Ct. at 2202 (citation omitted).
The ADA defines what constitutes "major life activities" and "substantial limitations." However, according to the EEOC's implementing regulations, "major life activities" are those "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2 (i). Furthermore, an impairment is "substantially limiting" when the individual is:
(i) unable to perform a major life activity that the average person in the general population can perform; or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.20 (j)(1).
In determining whether a disability qualifies as a substantial limitation of a major life activity, courts are to consider: "(1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or the expected permanent or long term impact of or resulting from the impairment." See 29 C.F.R. § 1630.2 (j). It is of the utmost importance for the record to reflect the severity of each plaintiffs impairment because the ADA requires an individualized inquiry. See Sutton, 119 S.Ct. at 2147 ("[W]hether a person has a disability under the ADA is an individualized inquiry."); 29 C.F.R. pt. 1630, App. § 1630.2(j) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.").
a. Count I — Yap's Impairment
Yap concludes that she has sleep apnea and that her sleep apnea affects her major life activity of sleep. Sleep apnea is a condition that can cause severe difficulties in breathing while asleep. These breathing difficulties can result in an unsatisfying, restless sleep. Accordingly, sleep apnea sufferers tend to be excessively tired during the day. Sleep apnea may also produce irritability, changes in personality, and difficulty with concentration. Sleep apnea does qualify as a physical impairment to the extent it affects the neurological, respiratory, and cardiovascular systems. See e.g., Silk v. City of Chicago, 1997 WL 790598 *7 (N.D.Ill. 1997) (finding that there is evidence supporting plaintiffs claim that his sleep apnea substantially limits his major life activities of breathing and sleep.) affirmed by Silk v. City of Chicago, 194 F.3d 788, 798-99 (7th Cir. 1999); see also Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999) ("We hold that sleep is a major life activity[.] . . . Sleeping is a basic activity that the average person in the general population can perform with little or no difficulty, similar to the major life activities of walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, and reaching."); Mont-Ros v. City of West Miami, 111 F. Supp.2d 1338 (S.D.Fla. 2000) (sleeping is a major life activity). It is undisputed that Yap suffered from sleep apnea while she worked at MCI. Yap, however, has failed to present sufficient evidence in the record to establish an issue of fact that her sleep apnea was so severe as to substantially limit her major life activity of sleep.
In general terms sleep apnea can be so severe such that it does impact on the major life activity of sleep. See e.g., Silk, 1997 WL 790598 *7. Sleep apnea, however, is also a condition that varies in severity from very mild asymptomatic snoring to severe snoring and extremely restless sleep with extreme daytime hypersomnolence or excessive sleepiness during the day. See e.g., Mont-Ros, 111 F. Supp.2d at 1355. In the end, this court must make an individual determination as to the severity of an impairment based on the facts in the record and the problem with Yap's case, for purposes of summary judgment, is that Yap has failed to present sufficient evidence in the record to create a material issue of fact that her sleep apnea was so severe, so pervasive, and so non-treatable that it caused a substantial limitation on her major life activity of sleep.
The plaintiff in Silk, was diagnosed as having severe positional sleep apnea, which meant that he struggled to breathe while sleeping. Id. In,Silk, the plaintiff produced evidence, in opposition to a motion for summary judgment, that his condition was so sever that it caused exacerbated hypertension and put him at risk of acute heart conditions and stroke. Id. at *2. The plaintiffs sleep specialist recommended that Silk avoid sleeping on his back, get his weight down to 205 pounds, and take a medication called Klonopin, as well as work a steady work shift.Id. The facts revealed that Silk usually slept from about 10 p.m. to about 4 a.m. each night and that even with accommodations Silk had a great deal of difficulty gaining enough quality sleep to function properly throughout the day. Id. Furthermore, Silk adduced evidence that established that even under the doctor's care his breathing was still not under control while he slept. Id. Silk's sleep specialist stated that even with the accommodations of a steady work schedule, sleeping in a proper position, a weight program and medication Silk's oxygen saturation level at night was "borderline."
In this case, the most compelling evidence in the record, detailing the severity of Yap's sleep apnea is the undisputed evidence that Yap has undergone two surgeries related to her sleep apnea. One surgery while employed at MCI and one after her termination. There is no evidence in the record, however, to establish how severe Yap's apnea was before her first surgery in April, 1997. Nor is there any evidence in the record to establish how severe Yap's apnea was after her April, 1997 surgical procedure but before her second surgery in January, 1999. Yap has failed to provide evidence in the record to establish whether the surgeries she underwent were necessary to allow her to sleep, or merely recommended in order for her to sleep better. In addition, Yap admits that despite her sleep apnea, she was able to work the first shift at MCI, with minor accommodations, which MCI provided her. Unlike in the Silk case there are no facts in the record of this case which reveal Yap's oxygen saturation levels while she slept, her hypertension levels, her increased risk of stroke because of her apnea, her blood pressure levels, nor how many hours Yap slept during the night. Yap's case here is more similar to theMont-Ros case in which the district court found that the plaintiff failed to produce sufficient evidence in the record to establish the severity his sleep apnea. 111 F. Supp.2d at 1356.
In Mont-Ros, the plaintiff failed to offer any evidence to demonstrate that his sleep apnea was sufficiently "severe" such that it substantially limited his major life activities of sleeping or breathing. Ill. F. Supp.2d at 1355. The plaintiff in Mont-Ros simply asserted that the was diagnosed with sleep apnea in July 1993, for which he underwent a sleep study, and that the condition worsened over the years. Id. at 1352. The district court in Mont-Ros found that the plaintiff failed to produce evidence detailing the severity of his sleep apnea and the court found that the plaintiff's sleep apnea condition was both treatable and correctable. Id. at 1356. Accordingly, the court in Mont-Ros found that the plaintiff could not demonstrate that he was "substantially limited in a major life activity." Id. at 1356-7.
In this case, there are insufficient facts in the record to establish the severity of Yap's condition and the undisputed facts of this case establish that Yap's apnea was both correctable and treatable. Accordingly, unlike Silk, but similar to Mont-Ros, this court finds that Yap cannot demonstrate on the record in this case that she was "substantially limited in a major life activity."
b. Count II — Cline's Impairment
Cline, similar to Yap, cannot demonstrate that her alleged sleeping disorder substantially limits any major life activity. In her memorandum of law in opposition to summary judgment, Cline concludes that "she [Cline] was substantially limited in a major life activity and, therefore, "disabled" under ADA analysis for at least the time of the initial diagnosis through the present." See Plaintiff's Brief in Response to Defendant's Motion for Summary Judgment at 6. Cline, however, has failed to adduce evidence that her sleep apnea was sufficiently "severe" to substantially limited her major life activity of sleeping.
Accepting as true, for the purposes of this motion, that Cline suffered from sleep apnea, Cline states that as of September 27, 1998, her oxygen saturation rate went down as low as 72 per cent while she slept. See Brief in Response at 4. The undisputed evidence reveals, however, that Cline has not stated she had difficulty falling asleep or staying asleep during the period she was employed at MCI. The record in this case establishes that Cline felt she slept too much, a contradiction for someone suffering from sleep apnea. Cline cites to Dr. Freebeck's deposition, where Dr. Freebeck states that Cline had substantial problems completing a full cycle of sleep, since her apnea was waking her up between 30 to 100 times per night. Dr. Freebeck states that Cline suffered from sleep apnea and "restless leg syndrome" while working for MCI. Accepting as true Dr. Freebeck's testimony, Dr. Freebeck's testimony does not establish an issue of fact as to the severity of Cline's sleep apnea, nor does Dr. Freebeck's testimony establish an issue of fact as to how Cline's sleep apnea affected Cline in the major life activity of sleep.
Relating to the issue of severity, the undisputed evidence establishes that Cline's personal physician, Dr. Brian O'Leary believed that Cline did not suffer from a sleep disorder at all, and that as of December, 1998, any sleeping condition that Cline may have suffered from was not disabling. Dr. O'Leary further stated that he believed that Cline was not substantially limited in her activities as a result of any sleep-related conditions. Furthermore, the undisputed evidence establishes that Cline told Dr. Freebeck on December 16, 1998, that she felt good, was sleeping through the night and felt refreshed in the morning.
So accepting that Cline suffered from a sleep disorder, Cline fails to adduce evidence in the record to establish the severity of her sleep apnea and fails to establish an genuine issue of material fact that her sleeping disorder affected any major life activity. Accordingly, Cline cannot demonstrate on the record in this case that she was "substantially limited in a major life activity."
c. Count III — Mesin's Impairment
Plaintiff Mesin fails to establish a genuine issue of material fact that he has any physical impairment and fails to establish a genuine issue of material fact that any physical impairment he may suffer from substantially limits any of his major life activities. On October 2, 1998, Mesin visited Dr. Edelstein for the first time related to any kind of sleeping condition. Mesin was prompted to visit Dr. Edelstein when faced with the possibility that he may have to work the third shift at the operations center. As a result of that October 2nd visit, Dr. Edeistein did not diagnosis Mesin with a sleep disorder. Mesin admits on the record that the only time he considered himself to be affected by a sleep disorder was when he was asked to work on the third shift. Moreover, Mesin admits on the record that he was not substantially limited in any major life activities due to a sleep disorder while he worked on the first shift, or when he took the job in mailroom/print-site on a modified second shift. Accordingly, Mesin fails to establish a genuine issue of material fact that he is disabled as defined by the ADA.
2. Protected Person: Definition of Qualified under the ADA
Under the definition of a protected person as defined by the ADA, plaintiffs Yap and Cline have failed to establish that they were qualified for the position in question at MCI. Under the ADA, in order for a plaintiff to establish that they qualify for the position in question, a plaintiff must show that she has ability to perform the essential functions of the employment position, with or without an accommodation, and that she meets the legitimate educational, training, experience, and other requirements set by the employer for the position. See Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir. Jan. 3, 2001); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 676 (7th Cir. 1998).
In this case, the job in question is not the job of Technical Specialist. The job in question, is one which includes the responsibilities of a Technical Specialist as well as the responsibilities of the mailroom/print-site. It is undisputed that as a result of the decision to eliminate the mailroom/print-site, the remaining twelve technical specialists needed to be re-evaluated based on their abilities to perform the Technical Specialist job, as well as their ability to perform the mailroom/print-site job. Neither Yap nor Cline argue, nor is there evidence in the record to establish a genuine issue of material fact, that MCI eliminated the mailroom/print-site and combined the responsibilities of the mailroom with those of a Technical Specialist for forbidden reasons. Therefore, Yap and Chine must demonstrate on the record that they were qualified for the modified Technical Specialist position.
Burns ranked the network specialist position as one of the most important positions in his organization and as a result, that position was not evaluated along with the twelve Technical Specialists positions.
In this case, both Yap and Cline fail to create an issue of material fact that they had sufficient experience, training, or ability to work in the mailroom/print-site. It is undisputed in this case, that neither Chine nor Yap had any experience in the mailroom/print-site. Further, it is undisputed in this case the Yap did not have the physical ability to perform all of the duties of the mailroom/print-site due to her bad back. As a result, this court finds that both Yap and Cline fail to establish a genuine issue of material fact that they were qualified for the modified position of Technical Specialist.
B. Prima Facie Case: Satisfactory Job Performance
In his prima facie case of discrimination under the ADA, plaintiff Mesin fails to establish a genuine issue of material fact that he performed his job satisfactorily at MCI. It is undisputed that Mesin was placed on probation as a Technical Specialist, in January, 1998. Mesin admits in the record that he was placed on probation because of his performance at MCI. Furthermore, it is undisputed that Mesin was offered a job in the mailroom/print-site because he was reluctant to work the third shift as a Technical Specialist. The undisputed facts in the record suggests that Mesin was not meeting the legitimate performance expectations of MCI. Furthermore, Mesin adduces no evidence in the record to establish an issue of fact that he was meeting the legitimate performance expectations of MCI.
C. Prima Facie Case: Similarly Situated Persons
All three plaintiffs, in this case, have failed to identify similarly situated employees, not disabled under the ADA, that received better treatment from MCI. In the case of Yap and Cline, a similarly situated employee would be a Technical Specialist rated at the bottom of the shift, who lacked experience, and/or the ability to perform mailroom/print responsibilities who nonetheless was not terminated by MCI. Both Yap and Cline have failed to identify any such employee. Both Yap and Cline identify employee Boyle as a similarly situated employee that was treated more favorably by MCI. However, it is undisputed that Boyle was skilled in the mailroom/print-site and neither Yap nor Cline had experience in the mailroom. Further, it is undisputed that Boyle had a lower salary than both Cline and Yap.
In addition to Boyle, Cline identifies employee Gamaliel Thomas, a Technical Specialist on the third shift, as someone who was similarly situated but treated more favorably by MCI. However, similar to the case involving Boyle, the undisputed evidence reveals that Thomas was skilled in the mailroom/print-site where Cline was not. Additionally, the undisputed evidence of the case reveals that Thomas was ranked second to last in the third shift, and Cline was ranked last in the second shift.
Mesin, identifies no employee at MCI who was similarly situated to himself but treated more favorably by MCI. In addition, upon a complete review of the record there is insufficient evidence to establish a genuine issue of material fact that any employees similarly situated to Mesin received better treatment at MCI.
D. Prima Facie Case: Nondiscriminatory, Legitimate Reasons for Termination
Despite the fact that none of the three plaintiffs have carried their initial evidentiary burden under the ADA, MCI nonetheless produces legitimate, nondiscriminatory reasons as to why Yap, Cline, and Mesin were each terminated. The following facts are the legitimate, nondiscriminatory reasons offered by MCI as to why Yap, Cline, and Mesin were terminated:
• The goals of the RIF was to downsize personnel, consolidate business, and cut expenses.
• Mesin ranked last among all of Burns' employees initially and after it was decided to eliminate the mailroon/print site.
• As between Boyle and Yap, two employees who worked on the first shift, Yap ranked last because Boyle had mailroom experience where Yap did not, Boyle had a lower salary than Yap, and Yap was physically unable to perform the duties of the mailroom due to her back.
• Cline had always been ranked last in the second shift. In addition, Cline lacked mailroom/print-site training and experience.
In light of the legitimate nondiscriminatory reasons offered by MCI as to why Yap, Cline, and Mesin were terminated, none of the plaintiffs have produced sufficient evidence in the record to establish an issue of fact that these reasons are a pretext for discrimination.
Both Yap and Cline argue, however, that MCI's proffered reasons are pretext for discrimination because three of the four employees terminated from Burns' organization suffered from a sleep disorder. This argument is without merit. First, neither Yap nor Cline has adduced evidence in the record to establish an issue of fact that all three plaintiffs suffered from a sleep disorder. Furthermore, neither Yap nor Cline has adduced evidence in the record to establish an issue of fact that Burns' criteria was applied in an unequal manner. Finally, neither plaintiff challenges Burn's criteria as being inconsistent with the undisputed goals of the RIF.
Yap and Cline further argue that Burns' criteria were a pretext for discrimination because Burns did not include seniority as a criteria in evaluation. Separately, Yap argues that Burns should have offered her a reduction in pay in order to allow her to keep her job, and Cline argues that the twelve specialists should not have been evaluated shift by shift but instead should have been evaluated from top to bottom regardless of shift. Cline's argument follows that if the Technical Specialists were evaluated from top to bottom, regardless of shifts, with the bottom three people then eliminated and the remaining nine Specialists redistributed among the three shifts then she would not have been terminated.
These three arguments suggest that Yap and Cline disagree with the methodologies used by Burns, however neither Yap nor Cline have established that the methodology used by Burns is a pretext for discrimination. Whether one methodology makes more business sense in comparison to another methodology is not a question for this court. It is not the position of the court to impose its evidence on the record to establish that MCI's proffered reasons are a pretext for discrimination. Taking all reasonable inferences in favor of Mesin, Mesin fails to establish a genuine issue of material fact as to his Title VII claim. Accordingly, summary judgment in favor of MCI on the Title VII issue in Count IV of the complaint is necessary as a matter of law.
By its terms, section 1981 governs contractual relationships. 42 U.S.C. § 1981 (a). In order to bring a section 1981 claim there must be a contract at issue. See Gonzalez v. Ingersoll Mill, Mach. Co., 133 F.3d 1025 (7th Cir. 1998). In this case, Mesin's § 1981 claim is without merit because there is no evidence to create an issue of fact that Mesin was ever under a contract with MCI. The undisputed evidence in this case establishes that Mesin was an "at-will" employee of MCI and that there was no contractual relationship whatsoever between Mesin and MCI.
Moreover, Mesin's § 1981 fails because Mesin has not provided sufficient evidence to establish a prima facie case of discrimination under Title VII. See Gonzalez, supra (dismissing § 1981 claim for failing to establish prima facie case of discrimination under Title VII using the McDonnell Douglas burden shifting method). Taking all reasonable inferences in favor of Mesin, summary judgment in favor of MCI on the § 1981 issue in Count IV of the complaint is necessary as a matter of law.
CONCLUSION
For the above stated reasons, MCI's motion for summary judgment is GRANTED on all counts of the complaint. This case is dismissed with prejudice in its entirety. All pending motions are moot.
ENTER.