Mobley v. Allstate Insurance

WOOD, Circuit Judge,

concurring in part and dissenting in part.

Summary judgment is appropriate, as everyone knows, only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Applying that well-worn standard, the majority has concluded that Catherine Mobley has failed to show that a trial is needed to resolve her case. I agree with the majority that Mobley’s presentation has indeed fallen short with respect to her retaliation claim. As I read this record, however, there are genuinely disputed material facts relating to her claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., for failure to accommodate and wrongful termination. I would therefore reverse and remand for further proceedings on the latter two theories.

I

I begin with Mobley’s failure-to-accommodate claim, which rests on 42 U.S.C. § 12112(b)(5)(A). This part of the case *550hinges on the question whether Allstate accommodated Mobley in a timely and adequate fashion. My colleagues conclude that any reasonable trier of fact would have to conclude that it did, based on the crucial conclusion that Allstate “eventually reasonably accommodate[d] Mobley’s disability.” Op. at 546 (emphasis added). In so doing, the majority accepts as undisputed the proposition that Allstate learned of Mobley’s disability only in mid-April 2003. In my view, however, the facts on which the majority’s conclusion rests are fairly in dispute. Viewed in the light most favorable to Mobley, Allstate’s failure to accommodate her more promptly both violated the ADA provision defining the term “discriminate” to include failure to accommodate and laid the groundwork for the problems that led to her eventual termination.

An exclusive focus on Mobley’s work environment after April 2003 misses crucial parts of the story. Mobley first requested accommodation in the fall of 2002. Allstate acknowledges this (as it must), but it claims that everyone thought that she was seeking help only for a temporary disability. But a trier of fact could reject Allstate’s assertion that all the parties were under the impression that Mobley’s disability was temporary until late March 2003. In fact, substantial record evidence supports Mobley’s account, under which she made no such representation.

Allstate’s sole citations to the record in support of its position refer us only to the district court’s opinion and to Allstate’s own brief below in support of its summary judgment motion, without identifying any specific evidence in the record to support this assertion. Appellee Br. at 4 (citing R. 85 at 5, 15-16; R. 46 at 6). When one turns to the district court’s opinion for more detail, it turns out that the cited pages are also devoid of any references to evidentiary materials. When we consult the record itself, we find that this “fact” is far from undisputed. Mobley has at all times contested the idea that she viewed her disabling conditions—essential tremor and nocturnal myoclonus—as temporary. Indeed, as I now review in some detail, she has pointed to substantial evidence in the record indicating that she had alerted Allstate long before April 2003 that “the nature of her condition” was “chronic,” “indefinite,” and “lifelong.”

In July 2002, months before making her first request for an accommodation (which happened in the fall of 2002) and nearly a year before she finally was accommodated, Mobley wrote in the comments section of an employee evaluation that she had “been unable to keep up due to health problems affecting my ability to concentrate, remember things, and mentally organize my thoughts so I make good decisions about how I work. A diagnosis has not been made, but I am under the care of a doctor and tests are being done. I am doing my best to hang on.” App. 155. A month later, Mobley wrote, “I continue to struggle with a neurological problem which has now been diagnosed, but for which, so far, the medication has provided no relief. I am having consistent followup with my neurologist in an effort to normalize my ability to concentrate and think logically.” App. 157. Nothing in these comments suggests that Mobley believed that her condition was “temporary.” If anything, she was describing a problem that was as yet unsolved, and was perhaps unsolvable, for which she was receiving ongoing care from a medical specialist.

The following month, on September 24, 2002, Mobley wrote that “[mjedications the doctor has changed to have made a great change in my ability to concentrate and think logically. However, because of the backlog of work, I’m behind and try*551ing to catch up. I’m doing my best.” App. 161. Allstate reads into this comment a concession from Mobley that her ailment was temporary. In my view, that is too much of a stretch, particularly bearing in mind the standard of review on summary judgment. A comment that her physician finally had found a medication that was producing some positive effects is not the same as an admission that her disability was “temporary.” A condition that requires daily medication and ongoing treatment from a neurologist is better described as “chronic.” Nothing in the quoted statement comes close to saying that Mobley thought that her condition was likely to dissipate in the near future. A trier of fact could draw the opposite conclusion. The latter inference would find support in Mobley’s later comments in October 2002, when she gave Allstate a statement from her neurologist, “as well as the records of [her] treatment for Essential Tremor, Myoclonus, and Narcolepsy.” App. 164. This is evidence of continued treatment for ongoing, diagnosed conditions, not an indication that she was on the path to full recovery. Though Mobley again wrote that “medication appears to be improving” her condition, once again she did not claim or suggest that her problems were temporary. If believed by a trier of fact, these statements show that Allstate knew of Mobley’s problems, and their ongoing nature, as early as September or October of 2002. They are inconsistent with Allstate’s claim that Mobley “first confirmed” her diagnoses of essential tremor and myoclonus on November 18, 2002, Appellee Br. at 4, and that it first learned that Mobley had been diagnosed “with an other-than-temporary medical condition” in April 2003, id. at 16.

Further support for Mobley’s position can be found in a report dated February 28, 2003, from Mobley’s neurologist, Dr. Ghooray. Dr. Ghooray wrote that Mobley has “CHRONIC CONDITIONS REQUIRING MULTIPLE TREATMENTS”; he further noted that the condition began “6/2002” and that its probable duration was “indefinite.” App. 498.

Beyond this evidence, the record contains statements from Allstate itself that are inconsistent with its claim that it thought that Mobley’s disability was temporary up until April 2003. When defending in this court its decisions to deny Mobley’s requests to work only on bodily injury (“BI”) files or to work from home, Allstate claims that the employees Mobley offers as comparators were not “similarly situated” to her, because they requested accommodations for an “occasional, seasonal, and part-time” interim, or on a “purely temporary” basis, whereas “Mobley’s request was for an ongoing” accommodation. Appellee Br. at 11-12. This is tantamount to an admission that its reason for denying Mobley certain accommodations—the same accommodations that it concedes it gave to other employees—was that the other workers needed only temporary accommodations, whereas it understood Mobley to require ongoing accommodations.

It is telling that the special arrangements that Allstate admits that it offered to other employees had nothing to do with disabilities protected under the ADA. For example, Melanie Thurston occasionally was permitted to work from home during baseball season, so that she could attend her son’s afternoon games; Nancy Muegge temporarily was allowed to work only on BI files “to catch up a backlog of those files.” Allstate’s own description of testimony from Office Manager Alex Ba-latsoukas, who supervised Nancy Breeh-buhl (Mobley’s direct supervisor), states that Balatsoukas made it “clear that permission [for Thurston] to work at home was sometimes allowed on an occasional *552basis, as compared to Mobley’s request for a [sic] ongoing work-at-home arrangement.” Balatsoukas also said that Muegge’s “assignment” to BI-only files was “purely temporary” and thus unlike what Mobley was seeking, which was “an ongoing exemption.” Id. Viewing the record favorably to Mobley, therefore, Allstate’s own admissions show that it realized that Mobley’s repeated requests for accommodation, which began in the fall of 2002, were not for a temporary condition. It believed that she was seeking ongoing, longterm adjustments.

Taking this evidence into account, I would find that Mobley can show that Allstate was aware of her ongoing, disabling condition at least by November 2002, and certainly no later than February 2003, when her neurologist’s report stated that Mobley suffered from “CHRONIC CONDITIONS” of “indefinite” duration. Indeed, Mobley has shown that Allstate was failing to accommodate her for a significant period of time, between approximately November 2002 and late April to early May 2003, when everyone agrees that Allstate finally acted. For this, we must examine Allstate’s response to Mobley’s requests to work in the “huddle room” (a measure that she believed would improve her concentration, and thus her productivity).

At a meeting Mobley had on November 18, 2002, with Balatsoukas, the two discussed Allstate’s decision to evaluate Mobley as someone who “Requires Improvement.” Mobley told Balatsoukas (apparently not for the first time) that she could achieve the needed improvement if she would be permitted to use a particular quiet room known as “the huddle room.” Balatsoukas denied the request and remarked that Mobley had to perform her work “the same way everybody else does the work,” or else be terminated. App. 309. Nevertheless, a week or two later, Brechbuhl informed Mobley that Balatsoukas had changed her mind, and Mobley could use the huddle room after all. As the majority notes, Mobley testified that Brechbuhl told her at the time that the reason for Balatsoukas’s change of heart was that she was convinced Mobley was not disabled, and that Mobley’s malingering would become clear if and when her assignment to the huddle room produced no improvement in her performance. App. 310. Balatsoukas denies telling Mobley that she had to do the work “the same way everybody else does” it, but on summary judgment, we must accept Mobley’s account. Moreover, Brechbuhl’s testimony corroborates Mob-ley’s recollection. Brechbuhl stated: “Yes, Alex wanted—felt like that it—you know, Cathy needed to perform her job as all the other—... I mean, that’s what Alex explained to me, ... that it was an equality issue.” App. 368-69. Brechbuhl could not recall Balatsoukas’s precise words, but she stated that “[i]t was just all related to equality issues.” App. 369. Allstate’s only real response to this exchange is to claim that Balatsoukas’s motivations are irrelevant to the ultimate question whether the company reasonably accommodated Mobley.

While Balatsoukas’s motivations are not dispositive, neither are they irrelevant. A jury could infer from the fact that Balat-soukas agreed to allow Mobley to use the huddle room just to show that she was incapable of succeeding under any circumstance that this was not a good-faith accommodation. Such an inference would be reinforced by the fact that Balatsoukas revoked Mobley’s permission to work in the huddle room immediately after Mob-ley managed, within only six weeks of being provided with that accommodation, to raise her performance back up to “meets expectations” status. Indeed, Allstate’s *553abrupt withdrawal of an accommodation that everyone admits was both a reasonable request and a successful arrangement is among the more troubling aspects of this case. It is undisputed that Balatsou-kas was the final decision-maker with respect to accommodations, including the use of the huddle room. Brechbuhl testified that, had it been her decision, she would have allowed Mobley to stay in the room, because “[h]er performance had improved,” and there were “more pros” than cons to Mobley remaining in the room. App. 369. Mobley’s own comments on her evaluation for January 2003—the month in which she re-attained the critical “meets expectations” status—spoke of how helpful the quiet environment was to her. App. 172-73, 176.

Balatsoukas claimed that Mobley’s success in restoring her status to “meets expectations” meant that she no longer needed to work in the huddle room. Ba-latsoukas accordingly decided to prohibit her from doing so. App. 333. Allstate claims, and the majority accepts, that these events do not raise a genuine issue of material fact as to whether Allstate discharged its duty of reasonable accommodation under the ADA, because Allstate later offered the same accommodation in late April or early May 2003. This does not, however, cure the earlier refusal to accommodate before that time.

Lastly, I see no alternative grounds on which Allstate might prevail at the summary judgment stage on Mobley’s failure-to-accommodate claim. A trier of fact could conclude that the other measures that Allstate adopted were not reasonable accommodations for her disabling conditions. Allstate asserts that, in addition to allowing Mobley to use the huddle room, it also, “from May 2003 on,” provided “other accommodations, including permission to shift her schedule back a half hour; reassignment of at least 18 files to another worker; and being assigned only BI files.” Op. at 547. The record shows, however, that Allstate never allowed Mobley to work exclusively on BI files. What it eventually did, after dragging its feet for a while, was to begin shifting her work assignments from the more complicated uninsured/underinsured motorist (“UM/ UIM”) files to the less complex BI files. Throughout this time, Mobley retained the backlog of UM/UIM files that she already had. See Appellee Br. at 6; Reply Br. at 5; App. 335-39 (Balatsoukas deposition, stating that Mobley was not allowed to work only on BI files); App. 371 (Brechbuhl deposition; same).

Second, when Allstate reassigned at least 14 of Mobley’s files to other workers, the result was only to bring Mobley’s case load down to a total of 184 files, one less than the highest number of files assigned to any other representative. This means that before the transfer, Mobley had 198 files, or 13 more than any of her co-workers. I fail to see how this redistribution of Mobley’s workload (by far the heaviest among her cohorts) was a disability-based “accommodation”; a fact-finder could equally well see it as a simple transfer of files designed to distribute the work more evenly.

Finally, Mobley disputed Allstate’s position that the schedule change (permitting her to work from 9 to 5:30 rather than from 8:30 to 5) was an accommodation, for she consistently said that it was of no help to her merely to shift her schedule by 30 minutes. It is also difficult to understand why Balatsoukas did not want Mobley to stay past 5:30 p.m. on certain days so that she could complete her work. Mobley was a salaried employee, not an hourly worker, and so the amount of time she spent in the office had no bearing on Allstate’s obligations to her. Viewed separately, these *554circumstances likely would not amount to ADA violations, but taken in the context of the full record, they create a genuine issue of fact on the question whether Allstate fulfilled its duty of reasonable accommodation.

II

Allstate alleged, and the majority accepts, that Mobley was terminated as part of a general reduction in force (“RIF”) that Místate was implementing, and thus that her termination had nothing to do with her disability. Allstate also asserts that in any event, Mobley was not meeting its reasonable expectations. But, on the latter point, if she was failing to meet its expectations only because of its failure to provide reasonable accommodation, then she is entitled to proceed. An employer cannot defeat a prima facie case for one claim by committing a different violation. Finding this one element lacking, the majority does not analyze the other aspects of Mobley’s prima facie ease, nor does it reach the burden-shifting analysis that applies once the prima facie case is established. I would find that Mobley has met her burden on each element of her prima facie case, and that she has provided sufficient evidence of pretext to survive summary judgment. Moreover, she has also shown that a trier of fact could find that the RIF had nothing to do with her termination, and that it was instead ordered because of her disability.

The only other element of Mobley’s pri-ma facie case that Allstate challenged on appeal was whether similarly situated employees received more favorable treatment during the RIF. As I have already indicated in discussing Mobley’s accommodation claim, there is enough evidence on this point to defeat summary judgment. Mob-ley presented evidence showing that Mike Hawkins, an employee in the same unit as hers with the same job title, same duties, and same supervisor (Balatsoukas), had performance numbers consistently lower than Mobley’s during 2002 and 2003, and was on “requires improvement” status from June 2003 until September 18, 2003. This is more than enough to render Hawkins “similarly situated” to Mobley. See Warren v. Solo Cup Co., 516 F.3d 627, 630-31 (7th Cir.2008). Hawkins was not terminated in the RIF, even though Allstate claimed that it was terminating all employees who were on “requires improvement” status when human resources employee Sybil Brenner pulled a report of employees’ status as of the end of August. There is some dispute over when exactly this data was pulled. Brenner testified that while she retrieved the data around September or October 2003, the “info quest download” was for “August, month end.” App. 380 (noting that the report printout reflects that it retrieved data from “August, month end”). Hawkins was on “requires improvement” status until September 18, 2003, and so he should have been on the RIF list.

These circumstances spill over into the issue of pretext. As I have already noted, Allstate’s justification for firing Mobley was that she simply fell into the category of employees who were on “requires improvement” status on the critical date for determining whom to let go as part of the RIF. But because Hawkins would have been on the same list, the fact that he escaped the RIF and Mobley did not calls into question Allstate’s decision. And this is not the only evidence Mobley has. There are other inconsistencies between Allstate’s claimed process for the RIF and the actual process that it followed. Mob-ley points out, for example, that not only were there people who were not subject to the RIF despite being on “requires improvement” status, but also there were *555people who were subject to the RIF who were not on that status.

The majority opinion declines to discuss these blemishes, having found that Mobley cannot make out her prima facie case. And the district court, despite deeming these inconsistencies “peculiar” and inexplicable, held that they presented “no serious challenge as pretext,” because Mobley failed to show that the individuals who avoided termination were “similarly situated” to Mobley or “received treatment more favorable to Mobley.” But that reasoning mixes up “pretext” analysis with the evaluation of a prima facie case. The issue of pretext arises only after an employee makes out her prima facie case. The question at that point is not whether an employee has shown that others similarly situated to herself were treated more favorably, but rather whether the employer’s asserted reasons for terminating the employee were in fact the actual reasons. Given the inconsistencies in the record that I have already discussed, I cannot conclude as a matter of law that the RIF was conducted in the neutral way that Allstate claims. Whether a jury would ultimately find in Mobley’s favor is, of course, not the question. On these facts, a reasonable jury could do so.

Ill

For these reasons, I conclude that Mob-ley has presented enough evidence to move forward on her failure-to-accommodate and termination claims. Accordingly, while I join the majority’s resolution of Mobley’s retaliation claim, I respectfully dissent from its decision to affirm summary judgment on the other two theories.