Lora Wheatley v. Factory Card and Party Outlet , 826 F.3d 412 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2083
LORA J. WHEATLEY,
Plaintiff-Appellant,
v.
FACTORY CARD AND PARTY OUTLET,
Defendant-Appellee.
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:11-cv-03414-SEM-EIL— Sue E. Myerscough, Judge.
ARGUED NOVEMBER 30, 2015 — DECIDED JUNE 13, 2016
Before ROVNER and WILLIAMS, Circuit Judges and SHAH,
District Judge.*
ROVNER, Circuit Judge. Lora Wheatley worked for Factory
Card and Party Outlet (“Factory Card”) from 1996 until her
employment was terminated on July 11, 2009, for failure to
*
Hon. Manish S. Shah of the Northern District of Illinois, sitting by
designation.
2 No. 15-2083
report to work. Wheatley filed an action against Factory Card
alleging that it violated the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq., when it terminated her
employment. The district court granted Factory Card’s motion
for summary judgment, and Wheatley appeals.
The facts underlying this appeal are set forth in detail in the
district court’s orders in this case. In March 2009, Wheatley
injured her foot in an incident at her home. She was unable to
work for several days, but returned to work on March 27 with
a note from her primary care physician, Dr. James A. Bogan,
stating that she could work “without restrictions.” At the end
of her shift that day, however, Wheatley could not walk and
she returned to Dr. Bogan. He provided a note indicating that
Wheatley should not work for one week, and recommended
that she see Dr. Karolyn Senica, an orthopedist.
Wheatley was off work for the ensuing months because of
the injury. In April 2009, Factory Card sent her a letter ac-
knowledging that she had requested leave under the Family
and Medical Leave Act (FMLA) beginning April 8, and stating
that she had 9.3 of her 12 weeks of FMLA leave remaining. In
that letter Factory Card also asked Wheatley to have her
physician fill out a “Certification of Healthcare Provider for
Employee’s Serious Health Condition” form and return it
within 15 days. Finally, Factory Card provided Wheatley with
the forms necessary should she choose to seek disability
benefits through Aetna Insurance.
Over the next three months, Wheatley had numerous
appointments with Dr. Senica and with Dr. Jeffrey Fleischli, a
podiatrist at the Foot & Ankle Associates of Central Illinois.
No. 15-2083 3
Although Wheatley’s FMLA leave was set to expire on June 13,
2009, Factory Card provided her with four additional weeks of
leave, lasting until July 11, 2009. It also informed her that if she
could not return to work when that time period expired, her
employment would be terminated but that she would be
eligible for rehire by the company if she subsequently recov-
ered from her foot injury.
On June 22, Wheatley was seen once again by Dr. Senica,
who issued a note to Wheatley providing that she could return
to work on July 6, 2009, with no restrictions. Wheatley dis-
agreed with that assessment and sought a second opinion from
Dr. Fleischli on July 1, 2009. Dr. Fleischli ultimately provided
a different assessment of her medical status which was
reflected in the Aetna Attending Physician Statement entered
into the record. In that statement, dated July 8, 2009, Dr.
Fleischli checked a box indicating that Wheatley had “No
ability to work. Severe limitation of functional capacity;
incapable of minimal activity.” In response to a form question
as to what medical restrictions are placed on the patient, Dr.
Fleischli wrote “immobilization.” He further noted on the form
that Wheatley would “need to be absent from work due to a
disability beginning on July 1, 2009 and ending on August 15,
2009.
Although that form indicated that Wheatley would not be
able to return to work until August 15, Wheatley submitted an
affidavit recounting a conversation with Dr. Fleischli which
would have allowed her to return before her FMLA leave
expired on July 11. According to Wheatley, in her July 1 visit
with Dr. Fleischli she asked him if she could return to work by
4 No. 15-2083
July 11 and he told her that she could return to work if her foot
were immobilized in a medical boot.
Wheatley contends that she informed Cheryl Cole, Factory
Card’s Regional Resources Manager, that she would need an
additional two weeks off of work, but was informed that if she
could not return by July 11 she would be terminated although
eligible for rehire. Wheatley then informed her immediate
supervisor, Foster Bliss, that she would be able to return to
work wearing a walking boot by that time, but Bliss was
doubtful that such an accommodation would be allowed. On
July 2, Cole sent a letter to Wheatley following up on their
conversation regarding the July 11 deadline for her return to
work, and requesting that Wheatley have her physician fill out
a Fitness for Duty Certification which was enclosed with the
letter. That form contained spaces for the physician to include
the date on which the employee could return to work, whether
the employee would have any work restrictions and how such
restrictions would relate to time and duties. Upon receiving
that letter, Wheatley called Cole and informed Cole that Dr.
Fleischli indicated she could return to work wearing a walking
boot, but Cole stated that it would not be possible because
Wheatley needed to be able to climb a ladder to do her job.
Concluding that Factory Card would not allow her to return to
work with the boot, Wheatley chose not to return the certifica-
tion form or provide any other written documentation regard-
ing her ability to return to work by July 11. She instead applied
for disability benefits using the Aetna Attending Physician
Statement discussed above, and Aetna determined that she
was totally disabled from her occupation. Wheatley then filed
this lawsuit claiming that Factory Card violated the ADA in
No. 15-2083 5
failing to accommodate her disability in that it should have
allowed her to return to work with a medical boot immobiliz-
ing her foot and to delegate to other employees the tasks
requiring the use of the ladder. Factory Card disputes
Wheatley’s version of events, contending that Wheatley did
not request any accommodations or indicate that she could
return with a medical boot, but concedes that we must view
the facts in the light most favorable to Wheatley as the non-
moving party.
Factory Card filed a motion for summary judgment in the
district court, arguing that Wheatley failed to demonstrate that
she was a qualified individual under the ADA because she did
not allege facts showing that she could perform the essential
functions of the job with or without reasonable accommoda-
tions. It argued that Wheatley was not “released” to work on
the date of her request for an alleged accommodation, July 7,
or on the date of termination, July 11, and therefore could not
perform an essential function of work—regular attendance.
The district court denied that request for summary judgment.
The court held that Wheatley had alleged sufficient evidence
to survive summary judgment as to whether she was a
qualified individual. Specifically, the court declared that
deposition or trial testimony from Dr. Fleischli would clarify
what he told Wheatley as to her ability to return to work and
what was meant by the requirement of immobilization. The
court further indicated that the competing conclusions of Drs.
Fleischli, Bogan and Senica indicated issues of fact as to her
ability to return to work.
Following the district court’s denial of the motion for
summary judgment, Factory Card filed a motion in limine to
6 No. 15-2083
bar Dr. Fleischli from testifying as an expert witness at trial
because Wheatley had disclosed him only as a lay witness and
not as an expert witness as required by Federal Rule of Civil
Procedure 26(a)(2). The district court granted Wheatley leave
to file amended witness disclosures to disclose Dr. Fleischli as
an expert witness in compliance with that Rule, if Wheatley
would also present a detailed description as to what Dr.
Fleischli’s testimony would be at trial. Wheatley, however,
responded by filing a notice stating that she would not be
calling Dr. Fleischli as a witness at all.
In light of that revelation, Factory Card filed a Renewed
Motion for Summary Judgment. Wheatley opposed that
motion, contending that her testimony alone as to her ability to
return to work with a walking boot, based on her experience
using the boot at home, sufficed to raise an issue of fact. The
district court rejected that argument and granted summary
judgment in favor of Factory Card. The court stated that in
most cases the question as to whether a person can perform a
job function with a reasonable accommodation is an inherently
medical question which requires expert testimony. Here, the
court noted that the relevant question is whether Wheatley’s
foot could medically withstand the pressure and exertion of
performing her job in a walking boot. For that question, the
court believed that expert testimony was necessary. The court
noted that the record contained releases by Drs. Bogan and
Senica, which would indicate that Wheatley could work
without restrictions and therefore was not even disabled under
the Act, and the Attending Physician’s Statement by Dr.
Fleischli stating that Wheatley had to be immobilized and
could not return to work until August 15, 2009. All of those
No. 15-2083 7
statements were inconsistent with Wheatley’s contention that
she could return to work on July 11 only if allowed to wear a
walking boot and allowed to forego the duty of climbing the
ladder.
We will not consider Dr. Senica’s release of Wheatley,
because the court recognized that Dr. Senica was not disclosed
as an expert witness and would therefore not be permitted to
testify in that capacity. The parties on appeal do not challenge
that determination, and neither party relies on Dr. Senica’s
release for their arguments to this court. Regarding the
statement by Dr. Fleischli, the court held that the statement had
been part of the record without objection for over a year and
was admissible. Wheatley’s testimony that she could return to
work with the use of a medical boot thus would conflict with
the only medical evidence, and the court determined that such
testimony was insufficient to survive summary judgment.
Wheatley challenges that determination on appeal, but as
a preliminary matter she contends that the court erred in
entertaining the renewed motion for summary judgment at all.
Although Wheatley concedes that the renewed motion was
timely filed, she contends that the earlier, initial motion for
summary judgment was filed nearly a year after the initial
deadline to file dispositive motions in the scheduling order,
and that the district court erred in determining that good cause
existed to modify that scheduling order. See Fed. R. Civ. P.
16(b)(4) (providing that a scheduling order may only be
modified for good cause and with the judge’s consent). The
first problem with this argument is that the challenged
dec is i on — to allow the m otion f or s u m m ary
judgment—resulted in the denial of Factory Card’s request for
8 No. 15-2083
summary judgment. Therefore, Wheatley has no basis to
contest the decision to allow that motion. Wheatley contends
that if the court had determined that Factory Card lacked good
cause to file that motion, then the subsequent renewed motion
for summary judgment based on her failure to include Dr.
Fleischli as a witness would be untimely as well. That argu-
ment is too attenuated. The basis for the renewed motion was
Wheatley’s decision to withdraw Dr. Fleischli as a witness, and
that is a basis for allowing the renewed summary judgment
motion that is entirely independent of the argument for the
initial summary judgment filing. The granting of the renewed
motion for summary judgment is the only issue before this
court, and Wheatley has not challenged the court’s decision to
allow that motion. Moreover, even if we considered the court’s
decision to allow the initial summary judgment motion,
Wheatley’s challenge is without merit. We review such
determinations only for abuse of discretion, and Wheatley has
failed to meet that standard here. See Adams v. City of Indianap-
olis, 742 F.3d 720, 734 (7th Cir. 2014); Riggins v. Walter, 279 F.3d
422, 427 (7th Cir. 1995). The discovery cut-off in the scheduling
order was modified by agreement of the parties to allow
Factory Card to take the deposition of Wheatley after settle-
ment efforts failed. In light of the representations in that
deposition, Factory Card requested leave to file a motion for
summary judgment. That request was filed in a timely manner
within approximately one month following the deposition, and
the court did not abuse its discretion in finding good cause and
modifying the scheduling order.
We turn, then, to the merits of the summary judgment
motion. In granting the renewed motion for summary judg-
No. 15-2083 9
ment, the court held that Wheatley presented insufficient
evidence to allow a jury to find that she was a qualified
individual with a disability under the ADA. That determina-
tion is consistent with our caselaw.
The ADA prohibits discrimination by an employer against
a “qualified individual on the basis of disability.” 42 U.S.C.
§ 12112(a). A “qualified individual” is an individual 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). In determin-
ing whether a person is a qualified individual, we apply a two-
step process. First, we determine whether the person satisfies
the prerequisites for the position, such as possessing the proper
educational background, employment experience, skills, or
licenses. Stern v. St. Anthony’s Health Center, 788 F.3d 276, 285
(7th Cir. 2015). We then consider “’whether or not the individ-
ual can perform the essential functions of the position held or
desired, with or without reasonable accommodation.’” Id.,
quoting Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001).
Only the second prong of that two-part process is at issue here.
Wheatley challenges the district court’s grant of summary
judgment, which was based on the court’s determination that
she failed to demonstrate sufficient evidence for a jury to
conclude that she was a qualified individual. In her brief to this
court, Wheatley acknowledges that her evidence was limited
to her own personal observations. Although she stated in her
affidavit that Dr. Fleischli had informed her that the use of a
medical boot would allow her to return to work by the July 11
deadline, she chose not to present evidence from Dr. Fleischli
to that effect, affirmatively withdrawing him from her witness
10 No. 15-2083
list. Therefore, the district court was presented only with her
affidavit statements, which essentially consisted of her state-
ments that she had been wearing the medical boot for two
months, and was aware of the job duties and what her limita-
tions would have been if she were allowed to return to work.
She contends that such testimony would be sufficient to allow
a jury to conclude that she could perform the essential duties
of the position if allowed to wear a medical boot in the work-
place and if able to delegate the task of climbing the ladder to
other employees. She contends that the court erred in requiring
expert testimony in order for her to meet her burden. We need
not consider whether climbing a ladder was an essential
function of the position, because Wheatley has failed to
demonstrate that she was capable of returning to work if
allowed to wear a medical boot.
“In response to an employer’s motion for summary
judgment, it is the plaintiff’s burden to produce evidence
sufficient to permit a jury to conclude that she would have
been able to perform the essential functions of her job with a
reasonable accommodation.” Basden v. Professional Transp. Inc.,
714 F.3d 1034, 1037 (7th Cir. 2013). At the outset, we note that
Wheatley is correct that a plaintiff does not necessarily need to
produce expert testimony in order to demonstrate that she is
a qualified individual. See EEOC v. AutoZone, Inc., 630 F.3d
635, 643-44 (7th Cir. 2010) (medical testimony not required to
establish that a person has a disability under the ADA requir-
ing accommodation). The need for such evidence will depend
upon the facts in each individual case. Id. at 643. The problem
for Wheatley, however, is not that she failed to produce a
No. 15-2083 11
certain type of evidence; it is that the evidence she presented
is insufficient to meet her burden.
Our cases are instructive as to what evidence is sufficient to
meet that burden. In Basden, the plaintiff had been told that she
likely had multiple sclerosis, and was awaiting an appointment
with a specialist. Basden, 714 F.3d at 1037. Her request for leave
to address the problem was denied by her employer, and her
employment was terminated. Id. In court, she presented
evidence of her work performance with a subsequent em-
ployer, but it was of short duration and was insufficient to
support a finding that a combination of leave and medication
would have enabled her to work on a regular basis. Id. at 1037-
38. She did not present medical evidence regarding the
effectiveness of her treatment. Id. at 1038. Moreover, in her
deposition, she testified only that at the time she requested
leave, she had hoped that a diagnosis from a specialist and the
use of prescription medication would allow her to return to
work. Id. We held that the evidence was insufficient to support
a factual finding that she was a qualified individual. At the
time of her termination, “she had no final diagnosis, no
prescribed treatment, and no anticipated date by which she
could have been expected to attend work regularly even if she
had been granted leave.” Id. The Basden court analogized her
case to that in Weigel v. Target Stores, 122 F.3d 461, 468-69 (7th
Cir. 1997), in which we found that an affidavit from the
plaintiff’s psychiatrist stating that there was a “good chance”
that she could return to work with treatment was too concluso-
ry and uninformative to allow a jury to determine that an
accommodation would allow the plaintiff to perform her job.
In both Weigel and Basden, the plaintiff failed to meet her
12 No. 15-2083
burden of producing evidence sufficient to permit a jury to
conclude that she would have been able to perform the
essential functions of her job with a reasonable accommoda-
tion.
We were presented with a similar situation in Stern v. St.
Anthony’s Health Center, 788 F.3d 276 (7th Cir. 2015). In Stern,
the plaintiff had been the chief psychiatrist at an acute-care
facility and was terminated based on an evaluator’s opinion
that he had short-term memory deficits which rendered him
unfit for duty. Id. at 279. The evaluator also opined that
strategies to compensate for Dr. Stern’s memory deficits and
alteration of duties possibly would allow him to perform his
remaining duties effectively. Id. at 289. We held that such
evidence was insufficient to meet his burden, characterizing it
as similar to the plaintiffs in Weigel and Basden who “relied
upon a conclusory and untested opinion/hope that the pro-
posed treatment/accommodation would enable them to
perform the essential functions of their jobs.” Id. Dr. Stern
could have sought additional medical treatment or testing after
his discharge and obtained non-speculative, non-conclusory
evidence that a proposed accommodation would have allowed
him to adequately perform his job, but he did not do so. Id. We
held that the evaluator’s speculative, untested suggestions
were insufficient to satisfy the burden. Id.
The evidence presented by Wheatley is similarly insuffi-
cient. Wheatley states that she was able to return to work full
time if she would have been allowed to use a medical boot but
she presents no evidence that the boot was an appropriate
treatment for her injury or that it would have allowed her to
walk and stand sufficient to perform her job. By choosing to
No. 15-2083 13
eliminate Dr. Fleischli as a witness, Wheatley chose to forego
any medical evidence that a boot was prescribed for her as well
as any medical evidence as to the relief that such a device
would provide.
She instead provided her own statement that she had used
the medical boot for the past two months, and that she was
familiar with the requirements of the job and could fulfill those
requirements as long as she wore the medical boot. But her
affidavit testimony provides scant support for that conclusion,
and in fact indicates that the medical boot did not sufficiently
ameliorate her condition to allow the performance of her job.
Wheatley’s affidavit contains conclusory statements that she
could perform the job with the medical boot, but the facts
regarding her abilities when wearing the boot do not support
that conclusion. In her affidavit, she stated that when she
started wearing the medical boot, “[w]hile my walking was
more challenging than it had been in the past, I was able to
walk around.” She indicated that she started wearing the
medical boot on April 28, 2009. As of July 1, 2009, when
wearing the boot she “was able to walk or stand around for a
couple of hours at a time,” but “was not able to walk and stand
for eight continuous hours.” She acknowledged that her
“responsibilities as manager did require [her] to be on [her]
feet for a good number of hours in a shift,” but declared,
“[t]hat having been said, there was also a decent amount of
time when I was not on my feet.” That is the kind of conclusory
and untested opinion/hope that we have repeatedly deemed
insufficient to meet the burden on summary judgment. Even
after two months of wearing the medical boot, she could walk
or stand for only a couple of hours at a time. There is no
14 No. 15-2083
evidence whatsoever as to how much recovery time she needs
in order to be able to walk or stand for additional hours, nor is
there any suggestion that her job could be performed by a
person who could walk or stand for only two hours in a shift.
Her testimony that she must be on her feet for a “good number
of hours” but that there was a “decent amount of time” when
she did not need to be on her feet is too general to provide any
guidance to a jury. There is no evidence, medical or otherwise,
that the use of the medical boot would allow her to stand or
walk a sufficient amount of time to perform the duties of her
job.
In fact, in the affidavit she acknowledges that her ability to
walk and the amount of time she could spend on her feet was
limited in July of 2009. She noted that “[t]he boot did not allow
me to work as well as I had in the past or as well as most
people, however, it did allow me to walk and/or stand for a
number of hours at a time.” Therefore, the evidence that she
could fulfill the job requirements consists solely of conclusory
statements by Wheatley, but her actual recitation of her
abilities with the medical boot indicated that she was limited
to walking and standing for only a couple of hours at a time
and that she was not able to work as well as most people even
with the boot.
Wheatley presented no medical evidence to indicate the
utility of the medical boot or her capabilities in the boot. Nor
did she present evidence that her performance subsequent to
the termination illustrated her capability to perform the job,
such as evidence that either before or after the date of termina-
tion she was able to engage in physical activity of the kind and
duration required for the job. Instead, by her own admission,
No. 15-2083 15
she chose to present only her personal observations as evi-
dence to demonstrate that she was a qualified individual. Such
evidence can be sufficient to survive summary judgment, but
here Wheatley’s statements as to her own abilities would not
allow a jury to conclude that she could perform the essential
functions of the job.
When Wheatley first returned to her job after the injury
with her physician’s release, she lasted only one day before
experiencing pain that required her to take a leave again. There
is no evidence that Wheatley was ready to return this second
time, and in fact after the termination she sought and obtained
disability benefits through Aetna based on its determination
that she was totally disabled and could no longer perform the
material duties of her Store Manager position.
That conclusion is consistent with the Aetna Attending
Physician Statement by Dr. Fleischli in the record, in which he
indicated that she had no ability to work and would need to be
absent until August 15, 2009. Wheatley argues that the district
court erred in considering that document because it is hearsay.
In granting summary judgment, a district court may consider
any evidence that would be admissible at trial. Widmar v. Sun
Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). The evidence
need not be admissible in form, but must be admissible in
content, such that, for instance, affidavits may be considered if
the substitution of oral testimony for the affidavit statements
would make the evidence admissible at trial. Winskunas v.
Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Here, the court
could properly determine that the Attending Physician
Statement was admissible. We have upheld the admissibility
of a health care provider’s medical certification under the
16 No. 15-2083
business records exception, Fed. R. Evid. 803(6), and the court
could properly determine that Factory Card could provide the
foundation for admission of such evidence at trial. See Hansen
v. Fincantieri Marine Group, LLC, 763 F.3d 832, 840 (7th Cir.
2014). In fact, Wheatley raised no objection to that document
when it was included in the defendant’s statement of undis-
puted facts.
Dr. Fleischli’s Attending Physician Statement thus was
properly considered, and provides evidence that Wheatley was
not capable of working at the time of her termination. But as
discussed above, even absent that statement, the evidence
presented by Wheatley is insufficient to allow a jury to
conclude that she could perform the essential duties of the
position if permitted to wear the medical boot and forego the
ladder duties. Her mere hope or belief, unsupported by
evidence supporting those conclusions, is insufficient to permit
a jury to conclude that she would have been able to perform
the essential functions of her job with a reasonable accommo-
dation. Accordingly, the district court properly granted
summary judgment for the defendant.
AFFIRMED