In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1092
Cheryl K. McPhaul,
Plaintiff-Appellant,
v.
Board of Commissioners of Madison County,
Indiana, Arleen Horine, in her official and
individual capacity, and Madison County
Board of Health,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 C 97--Sarah Evans Barker, Chief Judge.
Argued February 18, 2000--Decided August 16, 2000
Before Bauer, Posner, and Manion, Circuit Judges.
Manion, Circuit Judge. Cheryl McPhaul sued her
former employer, the Madison County Board of
Commissioners, alleging that the County failed to
accommodate her disability in violation of the
Americans with Disabilities Act (ADA). She also
brought an individual capacity suit, under 42
U.S.C. sec. 1983, against her former supervisor,
Arleen Horine, alleging that Horine discriminated
against her because of her race, in violation of
the Equal Protection Clause of the Fourteenth
Amendment. The defendants moved for summary
judgment. The district court granted the motion,
concluding that McPhaul failed to establish a
prima facie case for her ADA and section 1983
claims. McPhaul appeals, and we affirm.
I.
Cheryl McPhaul is a black woman who worked as a
registered nurse for the Women, Infants and
Children (WIC) program in Madison County,
Indiana. WIC is a federally-funded program that
provides health care and nutrition assistance for
pregnant women, infants and children. McPhaul’s
supervisor was Arleen Horine, a registered nurse
who coordinates the WIC program in Madison
County.
McPhaul began working for WIC as a nurse
nutritionist in April of 1994, where her
responsibilities included counseling WIC clients
about nutrition and certifying them for program
benefits like food supplements. In May 1995,
Horine concluded that McPhaul’s performance as a
nutritionist was deficient because she was
writing the same information on the charts of WIC
clients regardless of their varying situations,
including the infants, a practice that Horine
described as "totally inappropriate." Thus,
Horine transferred McPhaul to the position of
intake clerk in May 1995. Intake clerks certify
clients for the WIC program in order to secure
federal funding. They record the heights and
weights of clients so that the nurse
nutritionists can properly advise clients about
their diets. As an intake clerk, McPhaul
continued to receive the same benefits and pay
that she received as a nutritionist.
In September 1995, McPhaul received her first
performance evaluation as an intake clerk, in
which Horine rated her performance "Below
Average," the second lowest rating on a scale of
five. Horine’s evaluation states that McPhaul was
having "great difficulty in doing her job," that
she was making "gross errors" in charting the
heights and weights of clients, and that she was
having trouble remembering shot schedules for
infants and children and how to certify clients.
Although McPhaul was retrained after her initial
evaluation, she fared no better on her second
evaluation in November 1995. According to
Horine’s notes, McPhaul’s performance was still
"Below Average" because she continued to make
"gross errors" in plotting the heights and
weights of clients, and was still unable to
understand the certification process. In January
1996, Horine completed McPhaul’s third (and last)
performance review, in which McPhaul received the
lowest possible rating of "Unsatisfactory."
Horine stated that McPhaul was making "numerous
errors" in the routine tasks of the job, and that
she was still failing to accurately record the
heights, weights, and even the ages of clients.
Horine recommended to the WIC administrator that
McPhaul should be discharged. The administrator
and the Health Officer approved Horine’s
recommendation, and McPhaul was terminated on
January 22, 1996.
After her termination, McPhaul sued the Board of
Commissioners, alleging that she was disabled and
that the Board failed to accommodate her
disability, in violation of the ADA. She also
sued Horine in her individual capacity, under
section 1983, alleging that Horine discriminated
against her because of her race, thus affecting
the terms and conditions of her employment.
McPhaul also claimed that Horine failed to
protect her from an alleged campaign of racial
harassment by her white co-worker, Marcia Shock.
Concerning her ADA action, McPhaul claims that
she had been suffering from fibromyalgia since
February 1995 (before Horine transferred her from
the nutritionist position to the intake clerk
position in May 1995). Fibromyalgia is a disease
that is similar to chronic fatigue syndrome; its
cause is unknown, there is no cure, and the
symptoms are entirely subjective and usually
involve chronic pain and fatigue. McPhaul’s
fibromyalgia symptoms included fatigue, insomnia,
shortness of breath and muscle pain, including
sore hands and joints. She claims that her
condition made it difficult for her to
concentrate, bathe, walk, write and work, and
that in September 1995 she requested Horine to
accommodate her alleged disability by allowing
her to arrive at work one hour later or to leave
one hour earlier, or both. According to McPhaul,
her request was denied. Horine claims that
McPhaul never made the request.
On January 11, 1996, McPhaul saw Dr. Van Dellen
at the Mayo Clinic. He concluded that it was
"possible" that McPhaul had fibromyalgia, and he
gave her a card that instructed her to
participate in an education program about the
disease. McPhaul allegedly presented the card to
Horine, but Horine asserts that she was never
informed of McPhaul’s disease. McPhaul was not
diagnosed with fibromyalgia until February 1,
1996, several days after she was terminated.
McPhaul’s disparate treatment claim under
section 1983 is based on several allegations that
Horine discriminated against her because of her
race by demoting her to the intake clerk
position, terminating her from that position, and
by treating her differently in regards to other
terms and conditions of her employment. Horine
disputes these allegations.
In support of her hostile environment claim
under section 1983, McPhaul alleges that she was
harassed by Shock’s discussion of racially
sensitive subjects and her repeated use of the
word "nigger" in McPhaul’s presence. McPhaul also
alleges that Horine knew about and tolerated
Shock’s conduct, and is thus liable in her
individual capacity. Horine disputes these
allegations as well.
The defendants moved for summary judgment,
arguing that McPhaul failed to establish a prima
facie case to support her claim under the ADA, or
to support her disparate treatment and hostile
environment claims under section 1983. The
district court granted the motion, concluding
that McPhaul’s ADA claim failed because she did
not present sufficient evidence that she was
disabled; that her disparate treatment claim
failed because she presented no evidence that
Horine was motivated by discriminatory intent;
and that her hostile environment claim failed
because she produced no evidence that her work
environment was objectively hostile, or that
Horine knew or consented to Shock’s conduct.
"We review the district court’s entry of summary
judgment de novo," Miller v. American Family Mut.
Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), and
we will view all of the facts and draw all
reasonable inferences in favor of the nonmoving
party. See id. Summary judgment is proper if the
evidence shows 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). McPhaul cannot merely allege
the existence of a factual dispute to defeat
summary judgment. Skorup v. Modern Door Corp.,
153 F.3d 512, 514 (7th Cir. 1998). She must
supply evidence sufficient to allow a jury to
render a verdict in her favor. Ross v. Indiana
State Teacher’s Association, 159 F.3d 1001, 1012
(7th Cir. 1998).
II.
A. The ADA Claim
McPhaul’s first argument on appeal is that the
district court erred in concluding that her
reasonable accommodation claim fails because she
was not disabled under the ADA. The ADA
proscribes discrimination "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, . . . and other terms,
conditions and privileges of employment." 42
U.S.C. sec. 12112(a). The Act also provides that
an employer discriminates against a qualified
individual with a disability by "not making
reasonable accommodations to the known physical
or mental limitations of an otherwise qualified
individual with a disability . . . ." 42 U.S.C.
sec. 12112(b)(5)(A). To establish a prima facie
case for failure to accommodate under the ADA,
McPhaul must show that: (1) she was disabled; (2)
the Board was aware of her disability; and (3)
she was a qualified individual who, with or
without reasonable accommodation, could perform
the essential functions of the employment
position. Feldman v. American Memorial Life Ins.
Co., 196 F.3d 783, 789 (7th Cir. 1999). Although
the district court held that McPhaul failed to
establish that she was disabled, we reserve
opinion on that determination because we find it
dispositive that McPhaul has failed to present
sufficient evidence to show that she was a
"qualified individual" under the ADA. See id.
A "qualified individual with a disability" 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.
sec. 12111(8). McPhaul has the burden of proof on
this issue, as she must show that she could
perform the essential functions of the
nutritionist and intake clerk jobs either with or
without a reasonable accommodation. Bultemeyer v.
Fort Wayne Community Schools, 100 F.3d 1281, 1284
(7th Cir. 1996); 29 C.F.R. sec. 1630.2(m).
The evidence clearly demonstrates that McPhaul
was not able to perform the essential functions
of the nutritionist and intake clerk positions.
Horine concluded that McPhaul’s performance as a
nutritionist was deficient because she was
recording the same information on the charts of
all of her patients, regardless of the various
facts each presented, including the infants. For
obvious reasons, Horine described this practice
as "totally inappropriate." McPhaul does not
dispute Horine’s conclusion. Moreover, McPhaul
does not dispute Horine’s three evaluations that
thoroughly documented McPhaul’s performance
deficiencies as an intake clerk./1 And McPhaul
presents no medical evidence to show that her
performance deficiencies at either job were due
to her alleged disability of fibromyalgia.
McPhaul responds by claiming that she would have
been able to perform the essential functions of
the nutritionist and intake clerk jobs if Horine
accommodated her request to arrive at work one
hour later, or to leave one hour earlier. Aside
from the fact that Horine claims that McPhaul
never requested reduced hours, McPhaul provides
no medical evidence to support her claim that her
requested accommodation would have improved her
performance, as none of her physicians ever
recommended any work restrictions or
accommodations due to her condition./2 All that
McPhaul can present in support of her reasonable
accommodation claim is her own self-serving
testimony, and in this case, that is just not
sufficient for a reasonable jury to find that she
is a qualified individual with a disability under
the ADA. See Slowiak v. Land O’Lakes, Inc., 987
F.2d 1293, 1295 ("Self-serving affidavits without
factual support in the record will not defeat a
motion for summary judgment."). Therefore,
McPhaul’s ADA claim fails.
B. The Section 1983 Claims
McPhaul also argues that Horine is personally
liable for discriminating against her because of
her race, in violation of the Equal Protection
Clause of the Fourteenth Amendment and 42 U.S.C.
sec. 1983. According to McPhaul, Horine treated
her differently regarding the terms and
conditions of her employment, and failed to act
to stop Shock’s alleged campaign of racial
harassment.
To state a prima facie case under the Equal
Protection Clause of the Fourteenth Amendment, a
plaintiff must demonstrate that she: (1) is a
member of a protected class; (2) is otherwise
similarly situated to members of the unprotected
class; (3) suffered an adverse employment action;
(4) was treated differently from members of the
unprotected class; and (5) the defendant acted
with discriminatory intent. Greer v. Amesqua, 212
F.3d 358, 370 (7th Cir. 2000); Jackson v. City of
Columbus, 194 F.3d 737, 751-52 (6th Cir. 1999).
Regarding the fifth element, McPhaul must show
that Horine "acted [or failed to act] with a
nefarious discriminatory purpose," and
discriminated against McPhaul because of her
membership in a definable class (because she is
black). Nabozny v. Podlesny, 92 F.3d 446, 453
(7th Cir. 1996) (internal citations omitted).
1. Disparate treatment.
McPhaul first contends that Horine discriminated
against her because of her race by treating her
differently in regards to the terms and
conditions of her employment by: (1) transferring
her to the intake clerk position; (2) terminating
her from that position; (3) neglecting to train
her for the intake clerk position while Shock, a
white intake clerk, received more sufficient
training; (4) denying her request to work reduced
hours while granting Shock’s request for the same
accommodation; (5) requiring her to see more
clients than Shock; and (6) prohibiting her from
wearing a nurse’s uniform while allowing Shock to
wear one.
McPhaul’s claims regarding her transfer and
termination clearly fail because she does not
establish the second and fifth elements of a
prima facie case. She does not establish the
second element--that she was otherwise similarly
situated to other nutritionists or intake clerks
who are members of an unprotected class--because
she does not identify any co-worker with a
similar "Below Average" or "Unsatisfactory"
performance rating./3 See O’Connor v. Chicago
Transit Authority, 985 F.2d 1362, 1371 (7th Cir.
1993) ("To make a prima facie case, O’Connor
would have to show that another grossly
insubordinate worker was treated better than
him.") (citation omitted). And because McPhaul
presents no evidence to indicate that Horine’s
transfer and termination decisions were motivated
by any reason other than McPhaul’s performance
deficiencies (which are undisputed), she clearly
fails to show that Horine’s decisions were
motivated by racial animus. Nabozny, 92 F.3d at
453.
On her claim about inadequate training, McPhaul
essentially argues that Horine set her up for
failure by neglecting to prepare her for the
intake clerk position while Horine ensured that
Shock was well prepared before she started the
job. Horine disputes McPhaul’s claim, and the
record contains no evidence that Shock received
better (or more timely) preparation for the
position. See Slowiak, 987 F.2d at 1295.
Moreover, McPhaul does not dispute Horine’s notes
that McPhaul was "retrained fully for the job"
after her first evaluation, but her performance
still deteriorated to the "Unsatisfactory" level.
Because the record discredits McPhaul’s argument,
and she presents no evidence that Horine acted
with racial animus, this claim fails.
McPhaul’s next contention is that Horine
discriminated against her when she allegedly
denied her request to work a reduced schedule,
but granted Shock’s request for the same
accommodation. According to McPhaul, Horine’s
reason for denying her request was that she
already reduced hours for Shock and could not
grant the same favor to McPhaul./4 But McPhaul’s
actual testimony was that Shock’s time away from
work "varied," and not that she was regularly
allowed to work a reduced schedule, which
corroborates Horine’s testimony that Shock never
requested a reduced schedule, but occasionally
took sick leave and vacation days. McPhaul
presents no evidence to dispute that Shock used
her accrued sick or vacation time when Horine
allowed her to take a portion of a day off. And
the record demonstrates that by January 1996,
McPhaul had used all of her vacation and sick
time. Nevertheless, Horine’s decision to allow
Shock to take accrued leave, and not to allow
McPhaul to take leave that had not been accrued,
does not evince that Horine was motivated by a
"nefarious discriminatory purpose," and this
claim fails./5
McPhaul also contends that Horine required her
to see more WIC clients than Shock on a daily
basis. In support of her contention, McPhaul
relies solely on her own observations through a
window to Shock’s office, and fails to challenge
the scheduling book in the record that
demonstrates that the WIC receptionist
distributed WIC clients equally to McPhaul and
Shock. Thus, McPhaul provides no evidence that
Horine intentionally assigned more clients to
McPhaul, or did so because of her race.
McPhaul’s last claimed instance of disparate
treatment is that Horine prohibited her from
wearing a nursing uniform while she allowed Shock
to wear one. According to McPhaul, Horine told
her not to wear a uniform because WIC clients
feel more comfortable when WIC staff are dressed
in casual clothes. McPhaul does not indicate that
she requested to wear a uniform, or that she was
ever punished for wearing a uniform, or that she
ever asked why Shock was apparently allowed to
wear a uniform. The uniform was not a factor in
her transfer or her termination, and there is no
evidence that the uniform was an important issue
at WIC. McPhaul just does not show that Horine’s
policy on uniforms was an adverse employment
action. See Southard v. Texas Bd. of Criminal
Justice, 114 F.3d 539, 555 (5th Cir. 1997) ("Not
every negative employment decision or event is an
adverse employment action that can give rise to a
discrimination or retaliation cause of action
under section 1983."); see also Silk v. City of
Chicago, 194 F.3d 788, 800 (7th Cir. 1999).
McPhaul also provides no evidence that Horine’s
policy was motivated by racial animus.
We conclude that McPhaul’s claimed instances of
discrimination (considered individually and
collectively) do not constitute sufficient
evidence for a reasonable jury to conclude that
Horine discriminated against her because of her
race. Thus, McPhaul’s disparate treatment claim
fails.
2. Hostile environment.
McPhaul also contends that Horine is personally
liable for failing to act to stop Shock’s alleged
campaign of racial harassment. McPhaul does not
allege any harassment by Horine, but that Shock,
her co-worker, harassed her by making racially
sensitive and derogatory remarks in her presence
while Horine failed to intervene to rectify the
situation.
To establish an individual capacity claim under
section 1983 against a supervisory official,
there must be a showing that the official was
directly responsible for the improper conduct,
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1983), and "knowingly, willfully, or at
least recklessly caused the alleged deprivation
by [her] action or failure to act." Rascon v.
Hardiman, 803 F.2d 269, 274 (7th Cir. 1986).
However:
[A] defendant’s direct participation in the
deprivation is not required. An official
satisfies the personal responsibility requirement
of section 1983 if she acts or fails to act with
a deliberate or reckless disregard of plaintiff’s
constitutional rights, or if the conduct causing
the constitutional deprivation occurs at her
direction or with her knowledge and consent.
Id. (quoting Smith v. Rowe, 761 F.2d 360, 369
(7th Cir. 1985)). The plaintiff must also show
that the supervisor acted (or failed to act)
because of the plaintiff’s race. See Nabozny, 92
F.3d at 453.
To prevail on a hostile environment racial
harassment claim, the plaintiff must also show
that her work environment was both subjectively
and objectively hostile./6 See Adusumilli v.
City of Chicago, 164 F.3d 353, 361 (7th Cir.
1998) (citing Harris v. Forklift Systems, 510
U.S. 17, 21 (1993)).
An objectively hostile environment is one that a
reasonable person would find hostile or abusive.
[Harris, 510 U.S. at 21]. In determining whether
a plaintiff has met this standard, courts must
consider all the circumstances, including "the
frequency of the discriminatory conduct; its
severity; whether it was physically threatening
or humiliating; or a mere offensive utterance;
and whether it unreasonably interferes with an
employee’s work performance." [Id. at 23].
Adusumilli, 164 F.3d at 361. We shall evaluate
McPhaul’s claims according to these standards.
McPhaul alleges that Shock harassed her by
discussing racially sensitive subjects and by
repeatedly using the racial epithet "nigger" in
McPhaul’s presence. Although McPhaul alleges that
Shock’s comments occurred on a weekly basis, she
presents three specific instances on appeal. In
the first instance, Shock repeated to McPhaul a
comment (made to Shock by a WIC client) that
Horine looked like "a little nigger lady." The
second instance involved Shock calling McPhaul’s
attention to the fact that a client was a dark-
skinned mother who had a lighter-skinned baby.
And lastly, Shock told McPhaul that Shock’s
family was once harassed by the Ku Klux Klan.
According to McPhaul, she complained to Horine
about Shock’s derogatory and racially insensitive
remarks, and that Horine advised her to "ignore
it." But McPhaul also admitted that Horine later
separated her from Shock by moving her to her own
office. Horine testified that McPhaul never
complained to her about Shock’s alleged
harassment, and that she never witnessed Shock
using the word "nigger."
We first consider whether Shock’s remarks
created an objectively hostile environment for
McPhaul. Shock allegedly used the word "nigger"
when she repeated a comment made by a WIC client
about Horine,/7 and thus Shock did not direct
that epithet at McPhaul or anyone else. When such
harassment is directed at someone other than the
plaintiff, the "impact of [such] ’second hand
harassment’ is obviously not as great as the
impact of harassment directed at the plaintiff."
Gleason v. Mesirow Financial, Inc., 118 F.3d
1134, 1144 (7th Cir. 1997). Although McPhaul also
alleges that Shock used the word "nigger" on a
weekly basis, she never claims that Shock
directed it at McPhaul or anyone else, which
indicates that Shock tended to repeat the epithet
out of her own immaturity and insensitivity,
rather than racial animus. Moreover, McPhaul
stated twice in her deposition that she
considered Shock’s remarks (especially her use of
the word "nigger") to be "offensive," but she
never claimed that they interfered with her work
performance, or were physically threatening or
humiliating. Thus, the "mere utterance of an . .
. epithet which engenders offensive feelings in
an employee" is not sufficient to establish a
hostile working environment. Harris, 510 U.S. at
21 (quoting Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 67 (1985)).
Shock’s comment about the child’s skin color was
understandably offensive to McPhaul, but it was
not about McPhaul, and merely demonstrates
Shock’s ignorance of the probable consequences of
her careless chatter rather than racial
hostility. And Shock’s claim that the Ku Klux
Klan once harassed her family does not implicate
any hostile intent. We conclude, therefore, that
McPhaul fails to present sufficient evidence to
support a reasonable inference that Shock’s
remarks created an objectively hostile working
environment. See Adusumilli, 164 F.3d at 361.
Moreover, there is insufficient evidence to
indicate that Horine deliberately or recklessly
intended or allowed Shock’s alleged conduct, or
that Horine failed to act because she was
motivated by racial animus against McPhaul. The
record does not indicate that Horine intended or
directed any of Shock’s comments, as they appear
to have involved Shock’s spontaneous (and
inconsiderate) reactions to what she had observed
or heard. And McPhaul admits that Shock’s
comments decreased after Horine gave McPhaul her
own office. Therefore, McPhaul presents
insufficient evidence to indicate that Horine was
responsible for Shock’s alleged campaign of
harassment, and the hostile environment claim
fails./8
We conclude that McPhaul has failed to establish
a prima facie case under the ADA because she is
not a qualified individual with a disability. She
has also failed to establish a prima facie case
under section 1983 because she has not made a
sufficient showing that Horine discriminated
against her because of her race. Accordingly, We
AFFIRM the district court.
/1 While McPhaul does not dispute her performance
evaluations directly, she does claim that Horine
failed to sufficiently train her for the intake
clerk position, and required her to see more
clients than other intake clerks. But as we
explain in our analysis of McPhaul’s disparate
treatment claim, she fails to present any
evidence to support these allegations, and the
record actually discredits them.
/2 The record does contain, however, a January 17,
1996 note from Dr. Van Dellen of the Mayo Clinic
that simply states that McPhaul "could return to
work January 15, 1996." There is no indication of
any work restrictions or of any need for a work
accommodation.
/3 McPhaul only identifies Marcia Shock, a white
intake clerk, as a member of an unprotected class
who was allegedly treated more favorably by
Horine. But Shock was not similarly situated to
McPhaul because Horine rated Shock’s performance
as "Average," which is a superior rating to
McPhaul’s "Below Average" and "Unsatisfactory"
ratings. McPhaul does not challenge Horine’s
performance evaluations. Also, at the time of her
discharge, McPhaul was paid over $14.00 per hour
while Shock was paid $11.00 per hour.
/4 Horine claims that neither McPhaul nor Shock made
such a request, and thus no such accommodation
was granted at all. We note that even if Horine
did grant Shock’s request on a first come, first
served basis, that would be a legitimate business
decision that is beyond our purview. See McCoy v.
WGN Continental Broadcasting Co., 957 F.2d 368,
373 (7th Cir. 1992) (this court does not sit as a
super personnel department to review an
employer’s business decisions).
/5 And we have already established that McPhaul
provided no medical evidence to support her
request for a reduced schedule, and thus Horine
had no compelling reason to grant it.
/6 Because section 1983 claims generally follow "the
contours of Title VII claims," we will apply the
same "hostile environment" standard that is
applied in Title VII cases. King v. Board of
Regents of University of Wisconsin System, 898
F.2d 533, 537 (7th Cir. 1990).
/7 Horine is white.
/8 McPhaul also argues that we must consider
Horine’s alleged failure to protect her from
Shock’s offensive remarks as further evidence of
McPhaul’s disparate treatment claim. Because we
conclude that no reasonable jury could find that
Shock’s remarks created an objectively hostile
environment, or that Horine was somehow motivated
by racial animus to endorse them, our
consideration of these allegations (individually,
and collectively with the other six alleged
instances of disparate treatment) does not change
our conclusion that McPhaul’s disparate treatment
claim fails.