Williams v. Board of Education, City of Chicago

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

DAN WILLIAMS,

)

)

Plaintiff,

)

) No. 16 C 11467

v.

)

) Judge Virginia M. Kendall

BOARD OF EDUCATION OF THE CITY

)

OF CHICAGO,

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

Plaintiff Dan Williams is a school social worker for Chicago Public Schools. He sued his

employer, the Board of Education of the City of Chicago, for employment discrimination and

retaliation based on his gender and disability. Williams claims he was not selected for certain

additional social work roles because he is male and has a disability, and that he was denied an

accommodation for his disability, namely depression, anxiety, and sinusitis that prevents him from

sleeping well. The Board now moves for summary judgment on each of Williams’s claims. For

the following reasons, the Board’s motion for summary judgment [Dkt. 72] is granted.

PROCEDURAL HISTORY

The Board moved for summary judgment on November 16, 2018. Williams’s response

was due on December 14, 2018. (Dkt. 71.) Williams, who is represented by counsel, did not file

a response or timely request an extension of time to respond, and the Board asked the Court to

grant judgment in its favor based on Williams’s failure to respond. (Dkt. 75.) Of course, the Court

would have been well within her right to do so at that time. See, e.g., Pierce v. Ill. Dept. of Human

Servs., 355 F. App’x 28, 31 (7th Cir. 2009). However, in the interest of not allowing counsel’s

failure to respond adversely impact her client’s case in such a critical way, the Court granted

Williams’s request for a 30-day extension to respond, which he filed on January 11, 2019, nearly

a month after his response was originally due. (Dkt. 76, 78.) But Williams again failed to respond

in a timely fashion and asked for a second extension of time, which the Court granted, making his

new due date January 22, 2019. (Dkt. 79, 82.) Despite the two extensions, Williams then missed

his due date for a third time.

On February 5, 2019, two weeks after the deadline to respond had passed, Williams finally

filed his response and asked the Court to accept the late submission due to the voluminous

evidentiary record and his counsel’s health issues. (Dkt. 83.) Williams’s filing included 70

additional statements of fact, in violation of the local rules for summary judgment, which allow

the nonmoving party to file no more than 40 additional facts unless they seek prior permission

from the court. (Dkt. 83-2 at 31-45; see also L.R. 56.1(b)(3)(C).) The Board again asked the

Court to deem its facts admitted based on Williams’s late response and failure to comply with local

summary judgment rules, which the Court had discretion to do. But the Court accepted Williams’s

late response and granted him additional time to file a statement of additional facts (limited to 60

facts) that complied with the local rules. (Dkt. 87.)

Despite being given over three months to respond to the Board’s motion for summary

judgment, Williams has failed to create a genuine dispute of material fact on key elements of his

claims. The Board is entitled to judgment as a matter of law.

STATEMENT OF FACTS

I. Williams and CPS Social Workers

Dan Williams works as a school social worker employed by Defendant Board of Education

of the City of Chicago (the “Board”) since September 2008. (Dkt. 74 ¶ 3.) The Board maintains

a system of schools commonly known as Chicago Public Schools (“CPS”). (Id. ¶ 2.) CPS social

workers can be assigned to any of the Board’s 600-plus elementary and high schools within

Chicago city limits. (Id. ¶ 5.) Most CPS social workers are assigned to two or three schools. (Id.

¶ 6.) A CPS social worker’s primary job functions are assisting students in developing coping

skills, self-esteem, and improving their interactive skills; providing crisis, individual, and group

intervention services; consulting with school staff, parents, and others regarding sociocultural and

emotional factors impacting student learning; conducting diagnostic assessments to determine

student eligibility for special education; developing Individualized Education Plans (“IEPs”); and

providing professional development and leadership in developing school/community partnerships.

(Id. ¶ 7.)

CPS schools have varying start times ranging from 7:30 a.m. to 9:00 a.m. and varying

dismissal times ranging from 2:30 p.m. to 4:00 p.m. (Id. ¶ 14.) CPS social workers are expected

to work the hours of their assigned school (i.e., when the students are in attendance), so CPS social

workers assigned to more than one school may have different start times on different days. (Id. ¶

15.) During the 2014-2015 school year, one of Williams’s assigned schools had an 8:45 a.m. to

3:25 p.m. school day, while the other school had a 7:45 a.m. to 2:35 p.m. school day. (Dkt. 74-4

at 11.) School principals provide private areas for social workers to work with students, but due

to space limitations in school buildings, social workers are expected to share office space and

equipment. (Dkt. 74 ¶ 16.)

Williams suffers from depression, anxiety, and chronic sinusitis. (Dkt. 89 ¶ 1.) As a result

of these conditions, Williams is often unable to sleep at night, which in turn makes it difficult for

him to concentrate on work tasks and negatively impacts his memory. (Id.) Williams’s anxiety

and depression make it difficult for him to accomplish tasks. (Id. ¶ 2.) It is important for someone

with anxiety and depression to work in a reasonably quiet workspace with adequate resources and

a consistent work schedule. (Id. ¶ 3.) A noisy or chaotic workspace can exacerbate the symptoms

of anxiety and depression, as can the “constant search for resources, including private space to

serve students.” (Id.)

II. Williams's Accommodation Requests

On October 9, 2014, Williams submitted an accommodation request for consistent start

and end times of 7:45 a.m. and 2:45 p.m. every day.1 (Dkt. 74 ¶ 61; Dkt. 74-4 at 2.) The request

stated that Williams has chronic sinus problems and clinical depression that impact his ability to

sleep at night. (Id.) The request further stated that a consistent start time would allow Williams

to have a consistent sleep pattern, which would in turn help him be more alert and focused at work.

(Id.) Representatives from the Board’s Equal Opportunity Compliance Office (“EOCO”) began

communicating with Williams about his request shortly after it was submitted. (Id. ¶ 62.)

Approximately a week after Williams submitted his request, one of the EOCO representatives told

Williams that his request was “a matter of convenience.” (Dkt. 89 ¶ 58.) The EOCO contacted

Williams’s healthcare provider seeking additional information to support the request. Williams’s

healthcare provider responded that Williams was unable to fluctuate between two different work

schedules and needed a consistent schedule to maintain a healthy sleep/work schedule. (Dkt. 74-

4 at 11.) On November 14, 2014, the Board denied Williams’s request. (Dkt. 74 ¶ 63.) The denial

1 The record is inconsistent about the exact accommodation Williams requested. The official request form mentions

only a consistent 7:45 a.m. start time and is silent as to end time. (Dkt. 74-4 at 2.) In the Board's Rule 56.1 statement

of facts, the Board states that Williams requested a consistent start time of 7:45 a.m. and a consistent end time of 2:45

p.m., which Williams does not dispute. (Dkt. 89 ¶ 61.) The Board's letter denying the request states that Williams

requested a 7:45 a.m. start time and that his healthcare provider later indicated that he required a consistent work

schedule from 7:45 a.m. to 2:25 p.m. every day. (Dkt. 74-4 at 11.) Williams states that he never requested a 2:25

p.m. end time. (Dkt. 89 ¶ 59.) The Board purports to dispute that Williams did not request a 2:25 p.m. end time, but

the evidence the Board cites to support its dispute is irrelevant and does not controvert Williams's fact. (Dkt. 95 ¶ 59.)

Ultimately, despite these discrepancies, Williams does not dispute the Board's contention that he requested consistent

start and end times of 7:45 a.m. and 2:45 p.m., so that fact is admitted for summary judgment purposes.

letter stated that Williams’s healthcare provider did not give the Board enough information to

support his request “for a fixed schedule of 7:45 a.m. to 2:25 p.m.” (Id.; see also Dkt. 74-4 at 12.)

The letter further stated that, in order to provide temporary assistance, the EOCO arranged for

Williams to arrive at one of his assigned schools at 7:45 a.m. (even though it was an 8:45 a.m.-

start school) if he wished to. (Id.)

On May 7, 2015, Williams submitted a second accommodation request to EOCO

requesting: (1) a consistent start time of 7:45 a.m.; (2) a reduced caseload of no more than 20

students (the request was later adjusted to “the minimum caseload of students”); (3) assignment to

a single school (preferably Lawndale Elementary School); and (4) removal from Prescott

Elementary School (“Prescott”). (Dkt. 74 ¶ 65; Dkt. 74-4 at 16.) On June 26, 2015, the Board

denied each of Williams’s requests. (Dkt. 74 ¶ 67; Dkt. 74-4 at 20.) The Board’s letter stated that

the first request was denied for the remainder of the 2014-2015 school year, which was nearly over

by that time, because social workers are required to work the hours of their assigned schools and

there were no vacancies at 7:45 a.m.-start schools. (Id.) However, the letter also stated that the

EOCO would seek opportunities to place Williams at a 7:45 a.m.-start school for the following

school year. (Id.) The second request, for a reduced caseload, was denied because social workers

are expected to support all students in a school building and a review of Williams’s caseload did

not support a reduction.2 (Id.) The third request was denied because assignment to Lawndale

2 Despite the Board’s letter unequivocally stating that Williams’s request for a reduced caseload was denied, the Board

contends that his caseload was, in fact, reduced. (Dkt. 74 ¶ 66.) But none of the evidence the Board cites actually

supports this contention. The Board cites affidavits from two of Williams’s supervisors, who both state that they are

not aware of any CPS social worker with a caseload of fewer than 20 students. An affidavit from a third supervisor

states that Williams had the smallest caseload of any of the social workers she supervised. Finally, the Board cites

two passages from an EOCO representative’s deposition testimony: in the first passage, she states that she could not

recall Williams’s caseload for the 2015-2016 school year, but did recall that Williams felt it was too high; in the

second, she states that she recalled Williams requesting that his caseload be capped at 30 students. None of this

supports the Board’s contention that Williams’s caseload was reduced in response to his accommodation request. That

fact is disregarded.

Elementary only would be part-time work based on the number and needs of students. (Id.) The

final request was denied because Williams’s removal from Prescott would create a part-time

position and the Board does not have part-time social workers. (Id.)

On September 7, 2015, Williams submitted a third accommodation request, which

included: (1) a fully functional, private office at each school with the following equipment: a

telephone with private voicemail, proper light, heating and air conditioning, a high-capacity laser

printer with extra ink, a private fax machine, a large high-resolution monitor, a high-capacity

shredder, a high-capacity scanner, and a “proper” sized desk and swivel chair; (2) a large HEPA

room filter for each office; (3) that his job performance evaluation be based primarily on Health

Services Management Program (“HSMP”) compliance rather than the Board’s current REACH

criteria; and (4) a permanent, lifelong residency waiver. (Dkt. 74 ¶ 69; Dkt. 74-4 at 24.) The

Board gave Williams HEPA filters and offered him a private space with a suitable chair and table

or desk at each school, but denied the other requests because they were either unrelated to his

disability or did not assist him in performing the essential functions of his job. (Dkt. 74 ¶ 70; Dkt.

74-4 at 26-28, 30, 32-34.)

III. Williams’s Performance Evaluations and Disciplinary History

The Board uses the “REACH” tool to evaluate CPS teachers and social workers.3 (Dkt. 74

¶ 22.) REACH evaluations are scored from 100 to 400 points, and employees can receive a

REACH summative rating of excellent, proficient, developing, or unsatisfactory based on their

score. (Id. ¶¶ 23-24; Dkt. 74-2 at 58, 64.) For the 2013-2014 school year, Williams received a

3 Williams disputes that the REACH tool measures the job performance of social workers. (Dkt. 89 ¶ 22.) In support,

he cites the affidavit of a former CPS social worker who was evaluated under the REACH tool and “did not believe it

to be truly evaluative.” (Dkt. 89-2 ¶ 6.) Williams also cites his own affidavit testimony in which he opines that

REACH is not an effective evaluative tool for social workers. (Dkt. 90 ¶ 137.) “Statements of ‘beliefs’ or ‘opinions’

are insufficient to create a genuine issue of material fact.” Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994).

REACH score of 268, which is in the “developing” range. (Id. ¶ 25.) Because Williams received

a “developing” rating, he was placed on a professional development plan in December 2014. (Id.

¶ 26.) For the 2014-2015 school year, Williams received a REACH score of 253. (Id. ¶ 28.)

Williams was on short-term disability leave for part of the school year and did not receive a final

REACH rating. (Dkt. 90 ¶ 39.)

During the 2014-2015 school year, the Prescott principal complained to Williams's

supervisor about his behavior. (Dkt. 74 ¶ 30.) Williams was placed on a Performance

Improvement Plan (“PIP”) as a result of his behavior at Prescott. (Id. ¶ 31.) A PIP is a disciplinary

action that outlines each infraction and provides suggested behavioral changes to improve an

employee's conduct. (Id. ¶¶ 31-32.) Williams’s PIP, dated June 12, 2015, lists five infractions:

(a) failure to perform duties; (b) insubordination; (c) policy non-compliance – students; (d)

attendance abuse – absenteeism; and (e) negligence/incompetence – other duties. (Id. ¶ 33.) The

PIP lists dozens of examples of Williams’s conduct during the 2014-2015 school year, including

but not limited to the following concerns:4

• Williams interrupted a teacher while she was teaching and during her preparation period;

• Williams did not read a student’s IEP before meeting with the student;

• Williams failed to submit required documentation for a particular student, including the

student’s needs assessments and a copy of his calendar;

4 Williams does not dispute that these examples are listed in the PIP, but he “disputes the truth” of the examples and

moves to strike them. In support, he cites fourteen paragraphs of his affidavit. (Dkt. 89 ¶¶ 30, 34.) But only one of

the cited paragraphs actually addresses the specific examples listed in the PIP—in Paragraph 107, Williams states that

he provided a “redacted copy” of his calendar to the Prescott principal. (Dkt. 90 ¶ 107). Paragraph 106, which

Williams does not cite in support of his dispute about the PIP’s contents, states that he “did not fail to review necessary

information” before meeting with students. (Id. ¶ 107.) To the extent these two facts are in dispute, they are not

material because there are many other examples of Williams’s poor performance and inappropriate behavior. As to

the remaining issues identified in the PIP, Williams has not cited any evidence that supports his dispute. Facts that

are denied without evidentiary support are undisputed for purposes of summary judgment. See L.R. 56.1(a), (b)(3)(B)

(non-movant’s disagreements with moving party’s facts “shall contain ... specific references to the affidavits, parts of

the record, and other supporting materials relied upon”); see also Ammons v. Aramark Uniform Services, Inc., 368

F.3d 809, 817 (7th Cir. 2004) (“[W]here a non-moving party denies a factual allegation by the [moving party], that

denial must include a specific reference to the affidavit or other part of the record that supports such a denial”).

• After a Prescott parent complained that she did not want Williams seeing her son any

longer, Williams told her he had not read the child’s IEP;

• Williams spoke inappropriately to a teacher about his personal life and spent considerable

school time making personal phone calls;

• Williams did not report to work on 20 days between September 17 and February 4, failed

to swipe in twice, failed to swipe out twice, failed to work the assigned hours on two

occasions, and left early without authorization on one occasion;

• student, parent, and teacher complaints about Williams’s conduct and work.

(Id. ¶ 34; Dkt. 74-2 at 67-73.)

During the 2015-2016 school year, Williams did not receive any disciplinary actions and

he was removed from his professional development plan. (Dkt. 89 ¶ 24.) Neither of his principals

had any problems with his job performance that year and colleagues noted his good job

performance. (Id.) Although the professional development plan was removed, Williams was

given a poor performance evaluation for the school year. (Id.) Patricia Pagan began supervising

Williams sometime in 2016. (Dkt. 74 ¶ 20.)

IV. Saturday and Summer Assessments

Part of the Board’s duties includes conducting special education assessments of students

on Saturdays and during the summer in order to create plans for students during the upcoming

school year. (Dkt. 74 ¶ 48.) Each assessment team includes a social worker. (Id. ¶ 51.) Saturday

and summer assessments are “fast paced,” with two to three assessments occurring per day. (Id. ¶

49.) Most of the students evaluated during Saturday and summer assessments are between two-

and-a-half and five years old, are bilingual, or attend a private school in Chicago. (Id. ¶ 50.) When

the Board selects social workers for Saturday and summer assessments, it prioritizes social workers

with: (1) bilingual skills; (2) experience with early childhood students (i.e., between two-and-a-

half and five years old); (3) the ability to work at a fast pace; and (4) “exemplary” or “proficient”

REACH ratings.5 (Id. ¶¶ 52, 54.) Typically, at least half, and usually more, of the social workers

chosen for Saturday and summer assessments are bilingual. (Id. ¶ 56; see also Dkt. 89-7 at 156,

13:3-16.) Williams applied for a summer assessment position in June 2015 and was not selected.

(Dkt. 95-1 at 15.) In December 2015, Williams learned that he was not selected for a Saturday

assessment position. (Id. at 20.) Williams is not bilingual and his REACH rating for the 2013-

2014 school year was “developing.” (Dkt. 74 ¶¶ 53-54.) There is a dispute over whether Williams

has experience with early childhood students—the Board submits affidavits from Williams’s

supervisors stating that he does not have such experience, while William’s affidavit states that he

does. (Id.; see also Dkt. 90 ¶ 112.) There is a similar dispute over whether Williams was able to

work at a fast pace—his supervisors’ affidavits state that he could not; Williams’s affidavit states

that he could, “perhaps with proper accommodation depending on the circumstances.” (Id.) As

explained further below, these disputes are ultimately not material. According to the Board,

Williams was not chosen for Saturday or summer assessments because he did not meet the four

criteria. (Id. ¶ 55.)

V. Social Work Leads and Field Instructors

The Board selects certain social workers to be social work leads. (Id. ¶ 57.) The position

is not a promotion and does not come with a salary increase. (Id.) Social work leads provide

support to other CPS social workers by assisting with scheduling, grouping students, and covering

a caseload when a social worker is absent. (Id. ¶ 58.) Only social workers with “exemplary” or

“proficient” REACH ratings are considered for social work lead positions. (Id.) Williams applied

for a social work lead position in September 2014 and was not selected. (Dkt. 95-1 at 5.)

5 Williams disputes these priorities because there are no written guidelines for selection. But the evidence Williams

cites in order to show that these are not the Board's actual priorities is irrelevant and otherwise fails to controvert this

fact.

The Board also selects certain social workers to be social work field instructors. (Dkt. 74

¶ 59.) The position is not a promotion and does not come with a salary increase. (Id.) Social work

field instructors are expected to work with the intern program. (Id. ¶ 60.) Only social workers

with “exemplary” or “proficient” REACH ratings are considered for social work field instructor

positions. (Id.) Williams learned in April 2015 that he was not selected to be a social work field

instructor. (Dkt. 95-1 at 11.)

VI. EEOC/IDHR Charges

Williams filed two charges with the IDHR and EEOC. The first, dated April 23, 2015,

alleged: (1) gender and disability discrimination based on Williams not being selected to be a

social work lead in September 2014 and a social work field instructor in April 2015; (2) retaliation

and harassment for making ADA accommodation requests and discrimination complaints; (3)

gender and disability discrimination based on Williams being required to create a schedule in 15-

minute increments, being placed on a professional development plan, and being issued disciplinary

notices; and (4) failure to accommodate because Williams was not given a consistent start time in

October 2014. (Dkt. 95-1 at 4-12.)

The second charge, dated December 18, 2015, alleged: (1) disability discrimination based

on Williams not being selected for summer assessment in June 2015 and Saturday assessment in

December 2015; (2) retaliation and harassment for filing the April 2015 IDHR/EEOC charge based

on Williams being returned to Prescott following medical leave, receiving a disciplinary warning,

and being assigned a larger caseload for the 2015-16 school year; and (3) failure to accommodate

because Williams was not given all of the accommodations he requested in May and September

2015. (Dkt. 95-1 at 14-21.)

DISCUSSION

Summary judgment is warranted “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine factual dispute exists if a reasonable jury could find for either party. Pagel v.

TIN Inc., 695 F.3d 622, 626 (7th Cir. 2012). A material fact is one that affects the outcome of the

suit. Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 503 (7th Cir. 2017). To survive summary

judgment, the nonmoving party must present evidence sufficient to establish a triable issue of fact

on all essential elements of his case. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th

Cir. 2009). If there is no triable issue of fact on even one essential element of the nonmovant’s

case, summary judgment is appropriate. Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). On

summary judgment, the Court construes all facts and draws all reasonable inferences in favor of

the non-moving party. Bell v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016).

Williams alleges that the Board discriminated against him based on his disability and

gender when it: (1) did not choose him to be a social work lead or social work field instructor, (2)

did not assign him to work Saturday or Summer Assessment, (3) subjected him to disparate terms

and conditions of employment, and (4) denied his requests for accommodation. Williams further

alleges that the Board retaliated against him for requesting ADA accommodations and filing

discrimination charges with the Illinois Department of Human Rights and the Equal Employment

Opportunity Commission. (Dkt. 88 at 1.)

Title VII prohibits an employer from discriminating “against any individual with respect

to his compensation, terms, conditions, or privileges of employment” based on his sex. 42 U.S.C.

§ 2000e-2(a)(1). To bring a discrimination claim under the McDonnell Douglas burden-shifting

framework, which Williams invokes, he must provide evidence that: (1) he is a member of a

protected class; (2) he was meeting his employer’s legitimate expectations; (3) he suffered an

adverse employment action; and (4) at least one similarly situated employee not in his protected

class was treated more favorably. David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d

216, 225 (7th Cir. 2017).

Title VII also prohibits retaliation against individuals who bring discrimination charges.

42 U.S.C. § 2000e–3(a). To bring a retaliation claim under Title VII, Williams must provide

evidence that: (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse

action by his employer; and (3) there was a causal link between the two. Hoppe v. Lewis

University, 692 F.3d 833, 841 (7th Cir. 2012).

The ADA, as amended, prohibits employers from discriminating against a “qualified

individual on the basis of disability.” 42 U.S.C. 12112(a). To defeat summary judgment on an

ADA discrimination claim, Williams must point to evidence sufficient to establish that: (1) he is a

qualified individual with a disability under the meaning of the ADA; (2) he is qualified to perform

the essential functions of the job with or without reasonable accommodation; and (3) he suffered

an adverse employment decision as a result of his disability. Guzman v. Brown County, 884 F.3d

633, 641 (7th Cir. 2018).

Under the ADA, discrimination also includes an employer’s failure to make “reasonable

accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability.” 42 U.S.C. 12112(b)(5)(A); Rodrigo v. Carle Found. Hosp., 879 F.3d 236, 241

(7th Cir. 2018). To prevail on his failure-to-accommodate claim, Williams must show that: (1) he

is a qualified individual with a disability; (2) the Board was aware of his disability; and (3) the

Board failed to reasonably accommodate his disability. Bunn v. Khoury Enters., Inc., 753 F.3d

676, 682 (7th Cir. 2014).

I. Adverse Employment Action

The Board argues first that Williams’s claims fail because he did not suffer an adverse

employment action. “In a discrimination case, a materially adverse employment action is one

which visits upon a plaintiff ‘a significant change in employment status.’” Boss, 816 F.3d at 917

(quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 235 (7th Cir. 2014)). For example, a

“materially adverse change might be indicated by a termination of employment, a demotion

evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other indices that might be unique to a

particular situation.” James v. Hyatt Regency Chicago, 707 F.3d 775, 782 (7th Cir. 2013). “Not

everything that makes an employee unhappy is an actionable adverse action.” Madlock v. WEC

Energy Grp., Inc., 885 F.3d 465, 470 (7th Cir. 2018). “Otherwise, minor and even trivial

employment actions that an . . . employee did not like would form the basis of a discrimination

suit.” Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012) (internal quotations omitted).

Williams claims he suffered three distinct adverse employment actions: (1) not being

selected for social work lead or social work field instructor positions; (2) not being selected for

summer and Saturday assessment positions; and (3) being subjected to “significantly harsher”

terms and conditions of employment. Only the second constitutes an adverse employment action.

a. Social Work Lead and Social Work Field Instructor

The Board argues that Williams not being chosen to be a social work lead or a social work

field instructor were not adverse employment actions because the positions are not promotions, as

they do not come with any monetary benefits and require additional work. Williams counters that

the positions allow a social worker to maintain a smaller caseload and are more prestigious titles.

Neither of these facts are included in Williams’s Rule 56.1(b)(3)(C) statement of additional facts

and could be disregarded on that basis alone.6 Even so, Williams’s arguments on both points fail.

First, the evidence Williams cites does not support his contention that social work leads and field

instructors maintain smaller caseloads (and had Williams properly included these facts in his Rule

56.1 statement, the Board surely would have pointed this out).7 Second, while being passed over

for a promotion that comes with a raise can be an adverse employment action, see Hunt v. City of

Markham, Ill., 219 F.3d 649, 654 (7th Cir. 2000), “being passed over for what was only a loftier

title” is not. Grayson v. City of Chicago, 317 F.3d 745, 750 (7th Cir. 2003); see also, e.g., Han v.

Whole Foods Mkt. Grp., Inc., 44 F. Supp. 3d 769, 788 (N.D. Ill. 2014). Williams not being selected

to be a social work lead or social work field instructor were not adverse employment actions and

he cannot proceed on those grounds.

b. Summer and Saturday Assessments

Williams next contends that not being chosen for summer or Saturday assessment positions

was an adverse employment action. These positions are paid and can fairly be characterized as a

promotion, and so being passed over for such a position could qualify as an adverse employment

action. See Hunt, 219 F.3d at 654. But as discussed further below, Williams was not chosen for

6 See Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (holding that the predecessor to L.R. 56.1(b)(3)

is “the only acceptable means of . . . presenting additional facts to the district court”); see also Thornton v. M7

Aerospace LP, 796 F.3d 757, 769 (7th Cir. 2015) (a “district court is within its discretion to strictly enforce compliance

with its local rules regarding summary-judgment motions ... including by disregarding evidentiary documents because

a required statement of facts was not filed”); see also, e.g., Perez v. Town of Cicero, No. 06 C 4981, 2011 WL 4626034,

at *2 (N.D. Ill. Sept. 30, 2011) (“Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1

statement are disregarded in resolving a summary judgment motion.”)

7 Williams cites Patricia Pagan’s deposition testimony that during the 2014-2015 school year, she “wasn’t afforded

schools that had large [social work] caseloads because of [her] lead role and [her] role with the internship program.”

(Dkt. 89-7 at 40:4-8.) First, Pagan’s testimony is limited to her role as a social work lead and has nothing to do with

the caseload of a social work field instructor. Second, one witness’s testimony about one position she held during one

school year and the resulting impact on her caseload does not establish that all social work leads and all social work

field instructors have reduced caseloads by virtue of holding those positions or that a reduced caseload is a perk of

those positions.

these positions because he did not meet all the criteria for them and was otherwise failing to meet

the Board’s legitimate job expectations, so his claims fail on those grounds.

c. Disparate Terms and Conditions of Employment

Williams’s third contention is that he was subjected to disparate terms and conditions of

employment that rose to the level of an adverse employment action. His precise allegations on

this point are vague and difficult to pin down, because his argument does not cite his Rule 56.1

statement of additional facts or otherwise cite to the record. (See Dkt. 88 at 5.) Still, Williams

claims: (1) that he was “given unjustifiably lower ratings” so that he was always subject to

professional development plans, (2) that he was “refused assistance” despite repeatedly asking for

it, (3) that he has been disciplined for “utilizing benefit time” available to all collective bargaining

members; and (4) and that he has been “subjected to ‘rules’ not required of any other school social

worker.” (Id.)

As to the first claim, there are only two paragraphs in Williams’s Rule 56.1 statement of

additional facts related to “unjustifiably lower ratings.” The first involves the 2015-2016 school

year. Williams states that he did not receive any disciplinary actions that year, that he was removed

from his professional development plan, that neither of his principals had any problem with his

job performance, and that “others” noted his good job performance as well, but that he was

nonetheless given a poor performance evaluation for the school year. (Dkt. 89 ¶ 24.) The second

paragraph involves the 2017-2018 school year. Williams states, without elaboration, that Patricia

Pagan’s evaluation of him that year was “not justified.” (Id. ¶ 13.) To support these facts, Williams

cites his own affidavit and the affidavits of five colleagues, none of whom stated that they ever

supervised Williams. (Id. ¶¶ 13, 24.) Neither performance evaluation is included in the record.

Williams’s claims based on his performance evaluations fail for two reasons. First,

Williams’s performance evaluations for the 2015-2016 and 2017-2018 school years were not

included in either of his EEOC/IDHR charges (nor could they have been, since the second and

final charge was filed in December 2015) and so they are not properly before the Court.

“Generally, a plaintiff may not bring claims under Title VII that were not originally included in

the charges made to the EEOC.” Moore v. Vital Prod., Inc., 641 F.3d 253, 256-57 (7th Cir. 2011).

Even if certain claims are not included in an EEOC charge, a plaintiff can still bring them if they

are “like or reasonably related to the allegations of the [EEOC] charge and growing out of such

allegations.” Id. “Claims are like or reasonably related when (1) there is a reasonable relationship

between the allegations in the charge and the claims in the complaint and (2) the claim in the

complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in

the charge.” Chaidez v. Ford Motor Co., --- F.3d ----, No. 18-2753, 2019 WL 4050996, at *4 (7th

Cir. Aug. 28, 2019) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). To

be “like or reasonably related,” the relevant claim and the EEOC charge “must, at minimum,

describe the same conduct and implicate the same individuals.” Moore, 641 F.3d at 257.

Williams brought his EEOC charges in April and December 2015, and it is undisputed that

Pagan did not begin supervising Williams until sometime in 2016. Pagan’s actions in 2016 and

beyond could not possibly be implicated in Williams’s 2015 EEOC charges, so his discrimination

claims stemming from Pagan’s 2017-2018 performance evaluation specifically, and her actions

more generally, are not reasonably related to the 2015 EEOC charges and the Court will disregard

those claims. The same is true for Williams’s performance evaluation for the 2015-2016 school

year. See, e.g., Cervantes v. Ardagh Grp., 914 F.3d 560, 565 (7th Cir. 2019) (complaint was not

reasonably related to EEOC charge describing different allegations, time period, and individuals);

Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir.2009) (suspension was not like or

reasonably related to the allegations in an EEOC charge because it occurred after the EEOC charge

and was, therefore, not foreseeable to the employer); Conner v. Ill. Dep’t of Nat. Res., 413 F.3d

675, 678-80 (7th Cir. 2005) (EEOC allegation of racial discrimination based on 2001 non-

promotion not like or reasonably related to claim based on 2002 non-promotion).

Second, even if claims stemming from Williams’s 2015-2016 and 2017-2018 performance

evaluations were properly before the Court, “[u]nfair reprimands or negative performance reviews,

unaccompanied by tangible job consequences,” do not constitute adverse employment actions.

Boss, 816 F.3d at 919. The same is true of being placed on a performance improvement plan. Id.;

see also Davis v. Time Warner Cable of Se. Wisconsin, L.P. 651 F.3d 664, 677 (7th Cir. 2011)

(“Performance improvement plans, particularly minimally onerous ones like that here, are not,

without more, adverse employment actions.”) Williams does not point to any “tangible” job

consequences that were tied to his negative performance reviews or professional development

plans, and those acts, without more, do not constitute adverse job actions.

Next, Williams claims that he suffered an adverse employment action when he was

“refused assistance despite repeatedly asking” for it. Again, Williams’s brief does not cite any

facts to support this single-sentence argument, but his Rule 56.1 statement of additional facts

includes multiple instances in which he requested accommodations and the Board denied them in

part. (Dkt. 89 ¶¶ 6, 9, 21, 36-40, 44, 58-60.) As discussed further below, the Board did offer

Williams reasonable accommodations and attempted to address his requests. “It is the employer’s

prerogative to choose a reasonable accommodation, and the [Board’s] decision to accommodate

[Williams’s] request in a way other than what he requested was not an adverse employment

action.” Koty v. DuPage Cty., Ill., 900 F.3d 515, 520 (7th Cir. 2018) (citing Jay v. Intermet

Wagner, Inc., 233 F.3d 1014, 1017 (7th Cir. 2000)); see also See Hancock v. Potter, 531 F.3d 474,

478–79 (7th Cir. 2008) (concluding actions taken by the employer to try to accommodate the

employee’s work restrictions were not adverse). And Williams’s claims as to the requested

accommodations the Board denied all otherwise fail for the reasons discussed further below.

Williams also claims that Pagan disciplined him for utilizing benefit time that was available

to all collective bargaining members. He does not cite any facts to support this argument, but this

appears to stem from incidents involving Pagan in September 2017. (Dkt. 89 ¶¶ 33-36.) For the

reasons explained above, these claims were not included in Williams’s EEOC/IDHR charges and

they do not reasonably relate to those charges, so they are not properly before the Court. Finally,

Williams claims that he was subjected to rules not required of any other school social worker. This

argument is similarly unsupported by citations to the record, and the Court cannot identify any

facts in Williams’s Rule 56.1 statement of additional facts that are related to this contention. See

Boss, 816 F.3d at 914 (district courts are not required to “scour the record looking for factual

disputes” or “piece together appropriate arguments”). To the extent Williams is referring to the

requirements of his PIP or professional development plan, those do not constitute adverse

employment actions. Davis, 651 F.3d at 677. For these reasons, none of the “disparate terms and

conditions of employment” Williams lists in his brief rise to the level of an adverse employment

action for purposes of a Title VII or ADA discrimination claim.

II. The Board’s Legitimate Job Expectations

The Board next argues that Williams’s claims fail because he has not shown that he was

meeting the Board’s legitimate job expectations. Williams’s only viable adverse employment

action is that he was not selected for summer or Saturday assessment positions. The Board

contends that Williams was not chosen because he did not meet the Board’s four criteria: (1)

bilingual skills; (2) experience with early childhood students (i.e., between two-and-a-half and five

years old); (3) the ability to work at a fast pace; and (4) “exemplary” or “proficient” REACH

ratings. Williams argues that there are genuine issues of material fact as to each criterion.

As noted above, the parties dispute whether Williams had experience with early childhood

students (Williams says he did; the Board says he did not) and whether he could work at a fast

pace (Williams says he could; the Board says he could not). Williams also points out that the

Board selected some social workers for summer and Saturday assessments who were not bilingual.

But those disputes are not material, because it is undisputed that Williams did not meet the REACH

ratings required for summer and Saturday assessments. It is also undisputed that Williams was

failing to meet the Board’s legitimate job expectations separate and apart from these four criteria,

given that his conduct was the subject of multiple complaints and disciplinary issues during the

2014-2015 school year (which Williams cannot dispute) that culminated with him being placed on

a PIP. Whether or not Williams met the four criteria is not the entire inquiry, as he suggests—the

Court’s “analysis of an employer’s legitimate expectations does not merely consider whether a

plaintiff’s actual job performance was satisfactory—it is a much broader analysis, which allows

fact-finders to consider factors such as insubordination and workplace camaraderie.” Zayas v.

Rockford Mem’l Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014) (holding that satisfactory performance

evaluations did not establish that plaintiff was meeting her employer’s job expectations in light of

multiple disciplinary actions around the time she was terminated). Williams purports to dispute

the conduct included in the PIP, but the evidence he cites in support of his dispute does not actually

controvert those facts, as noted above in footnote 4. Facts that are denied without evidentiary

support are admitted for summary judgment purposes, and Williams’s “admission to the conduct

at issue prevents him from establishing that he was meeting the [Board’s] legitimate expectations.”

Tomanovich v. City of Indianapolis, 457 F.3d 656, 666 (7th Cir. 2006). Because Williams cannot

show that he was meeting the Board’s legitimate job expectations, his prima facie discrimination

case fails and the Board is entitled to judgment as a matter of law. Id.

III. Failure to Accommodate

To prevail on his failure-to-accommodate claim, Williams must show that (1) he is a

qualified individual with a disability; (2) the Board was aware of his disability; and (3) the Board

failed to reasonably accommodate his disability. Yochim v. Carson, 935 F.3d 586, 590 (7th Cir.

2019). “The accommodation obligation embodied in the third prong brings with it a requirement

that both the employer and the employee engage in a flexible ‘interactive process’ and make a

‘good faith effort’ to determine what accommodations are necessary.” Id. (citing Lawler v. Peoria

Sch. Dist. No. 150, 837 F.3d 779, 786 (7th Cir. 2016)). Williams must make an initial showing

that the accommodations he sought were reasonable on their face. Taylor-Novotny v. Health All.

Med. Plans, Inc., 772 F.3d 478, 493 (7th Cir. 2014).

The Board contends that it offered Williams reasonable accommodations, and that the

requested accommodations it denied were not related to Williams’s disability and would not have

assisted him in performing the essential functions of his job or were otherwise not reasonable.

Williams counters that the Board denied his reasonable requests, that it “never understood” his

disabilities or accommodation requests, and that it never engaged in the interactive process.

Williams twice requested adjustments to his work schedule—initially a consistent work

schedule of 7:45 a.m. to 2:45 p.m. every day, even though one of his assigned schools had a later

start and end time, and later a consistent start time of 7:45 a.m. While the Board denied the request

because it did not have enough information from Williams’s healthcare provider, the Board

nonetheless offered to arrange for Williams to arrive at his late-start school at 7:45 a.m., which

would have given him the consistent start time (and thus the consistent sleep schedule) he sought.

The Board also stated that it would offer Williams a spot at another 7:45 a.m.-start school when a

spot became available. Though the Board did not offer Williams the precise accommodation he

sought, they offered him an alternative accommodation that was entirely reasonable and would

have addressed his limitations. To comply with the ADA, an “employer must provide a reasonable

accommodation, not the accommodation the employee would prefer.” Yochim, 935 F.3d at 591

(summary judgment was appropriate where employer offered “alternative options” that

“reasonably addressed” the employee’s concerns).

As for Williams’s request that he be reassigned to a single school, the Board’s duty to

reassign Williams as an ADA accommodation “extends only to vacant positions,” and the record

shows that there were no single-school vacancies at the time of Williams’s request. (Dkt. 74-4 at

21); Dunderdale v. United Airlines, Inc., 807 F.3d 849, 856 (7th Cir. 2015) (“an employer is not

required to bump other employees to create a vacancy so as to be able to reassign the disabled

employee,” and “it is the employee’s burden to demonstrate that a vacant position exists”).

Similarly, Williams’s request that he be removed from Prescott was denied because there were no

vacancies at 7:45 a.m.-start schools to reassign him to. (Dkt. 74-4 at 21.) Perhaps the Board could

have removed Williams from Prescott and reassigned him to a later-start school, but it is

Williams’s burden to demonstrate that a vacant position existed, and he has not done so.

Dunderdale, 807 F.3d at 856; see also Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 482

(7th Cir. 2017).

Williams also requested that his caseload be reduced to no more than 20 students, and he

later changed the request to a “minimum” caseload. The Board rejected the request because social

workers are required to service the needs of all students at their schools and actual student needs

can vary over time, so a set caseload cannot be guaranteed, because a review of Williams’s

caseload did not “support” a reduction, and because a caseload of 20 students or the “minimum”

number of students “may not require the full time services” of a social worker. (Dkt. 74-4 at 21.)

The Board argues that this amounted to a request for “light duty” and was thus unreasonable as a

matter of law. See, e.g., Majors v. Gen. Elec. Co., 714 F.3d 527, 535 (7th Cir. 2013) (a proposed

accommodation that seeks “another person to perform an essential function of the job . . . is, as a

matter of law, not reasonable”); see also Gratzl v. Office of Chief Judges of the 12th, 18th, 19th,

and 22nd Judicial Circuits, 601 F.3d 674, 680 (7th Cir. 2010) (“an employer need not . . . strip a

current job of its principal duties to accommodate a disabled employee[,] [n]or is there any duty

to reassign an employee to a permanent light duty position”) (internal citations omitted). Though

“job restructuring” can be a reasonable accommodation, that includes “modifications such as:

reallocating or redistributing marginal job functions that an employee is unable to perform because

of a disability; and altering when and/or how a function, essential or marginal, is performed.”

Stern v. St. Anthony's Health Ctr., 788 F.3d 276, 289-90 (7th Cir. 2015) (citing EEOC guidance)

(emphasis added). Servicing student needs is undoubtedly an essential function of Williams’s job,

(see Dkt. 89 ¶ 7), and so the Board is correct that his request to serve “no more than 20 students”

or a “minimum” number of students is akin to requesting “light duty,” an accommodation the

Board is not obligated to provide under the ADA. Gratzl, 601 F.3d at 680; see also, e.g., Corrales

v. Westin Hotel Mgmt., No. 17 C 6868, 2019 WL 1762907, at *6-8 (N.D. Ill. April 22, 2019).

Williams’s claim as to his remaining accommodations requests fails because he has not

shown that the accommodations would have allowed him to perform the essential functions of his

job. See Brumfield v. City of Chicago, 735 F.3d 619, 633 (7th Cir. 2013) (“reasonable

accommodations” are “workplace adjustments that enable an individual . . . to perform the essential

functions” of their job) (citing 29 C.F.R. § 1630.2(o)(1)(ii)). The Board largely denied Williams’s

supply-related requests and in doing so, it noted that Williams had adequate access to phones,

printers, fax machines, shredders, and scanners at each of his schools. (Dkt. 74-4 at 27.) A letter

from William’s psychiatrist accompanying the request notes that Williams having access to these

tools in a single office location would “significantly reduce [his] workplace stress by allowing him

to perform his job more efficiently.” (Dkt. 89-3 at 22.) The letter similarly notes that Williams’s

request to be exempted from the Board’s REACH evaluation process and instead be evaluated

using different criteria “will help reduce stress” and “assist [Williams] in focusing on serving the

students.” (Id.) It also notes that Williams’s request for a permanent, lifelong residency waiver is

“due to the psychological stress of the student populations he serves in the inner city, as well as

the stress of city life” and that “[Williams] also believes the smog in the city exacerbates his sinus

conditions.” (Id.)

Though each request is generally geared toward stress reduction, Williams does not

identify which essential functions he was unable to perform as a result of these stressors (some

related to his workplace, some not), nor does he establish how these requested accommodations

would have allowed him to perform those essential functions. “To be entitled to an

accommodation, a disabled employee must have a physical or mental limitation that prevents her

from performing an essential function of the particular job at issue and ‘there must be some causal

connection between the major life activity that is limited and the accommodation sought.’”

Brumfield, 735 F.3d at 633 (quoting Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 785 (7th Cir. 2007)).

Here, Williams does not identify which essential functions he was unable to perform due to stress,

nor does he connect the dots as to how his requested accommodations would allow him to perform

those functions, so his failure-to-accommodate claim fails. See also, e.g., Hooper v. Proctor

Health Care, Inc., 804 F.3d 846, 852 (7th Cir. 2015); Sheahan v. Dart, No. 13 C 9134, 2015 WL

1915246, at *5 (N.D. Ill. April 23, 2015).

Williams’s request for an emotional support animal is not properly before the Court

because it was not included in his EEOC/IDHR charges and is not reasonably related to them. See

Cervantes, 914 F.3d at 565. Finally, to the extent Williams argues that the Board failed to

reasonably accommodate him because it did not understand his disabilities and failed to engage in

the interactive process, that is not a basis for ADA liability on its own. Bunn, 753 F.3d at 683

(there is no separate cause of action for failure to engage in the interactive process). And the record

shows that the Board did, in fact, engage in the process—the Board’s letters regarding Williams’s

requests outline the discussions between the Board, Williams, and his lawyers and healthcare

providers. (Dkt. 74-4 at 11-13, 20-22, 26-28, 39-41.)

IV. Retaliation

To avoid summary judgment on his retaliation claims, Williams must present evidence

that, considered as a whole, would allow a reasonable juror to conclude that “(1) he engaged in

protected activity; (2) he suffered a materially adverse employment action; and (3) there was a

causal link between the protected activity and the adverse action.” Boss, 816 F.3d at 918. Using

the McDonnell Douglas framework, Williams can meet his burden by showing that, in addition to

engaging in protected activity and suffering a materially adverse employment action, “he was

meeting his employer’s legitimate expectations; and . . . he was treated less favorably than

similarly-situated employees who did not engage in protected activity.” Id.; see also Zegarra v.

John Crane, Inc., 218 F. Supp. 3d 655, 671 (N.D. Ill. 2016).

“In the retaliation context, determining whether an action is materially adverse means

inquiring whether it well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Boss, 816 F.3d at 918 (citing Burlington N. Sante Fe. Ry. Co. v. White,

548 U.S. 53, 68 (2006)). “Because Title VII does not set forth a general civility code for the

American workplace, its anti-retaliation provision does not protect against petty slights, minor

annoyances, and bad manners. An employee must suffer something ‘more disruptive than a mere

inconvenience or an alteration of job responsibilities.’” Id. (quoting Hobbs v. City of Chicago,

573 F.3d 454, 463-64 (7th Cir. 2009)).

Williams points to four purported adverse actions that he claims were based on a retaliatory

animus. (Dkt. 88 at 19-21.) Each of Williams’s arguments fails and none of the actions he cites

rises to the level needed to trigger retaliation liability. First, Williams argues that he was placed

on a professional development plan a few months after he applied for ADA accommodations and

was later given a poor performance review. But Williams does not point to any “tangible job

consequences” accompanying the professional development plan or bad review, and “unfair

reprimands or negative performance reviews” unaccompanied by such consequences are not

adverse employment actions for Title VII retaliation purposes. Boss, 816 F.3d at 919 (performance

improvement plan, on its own, is not an adverse employment action). Next, Williams notes that

he received a “pre-disciplinary notice” hours after he asked if his disabilities were considered as

part of his REACH evaluation. But Williams does not provide any citations and this incident is

nowhere to be found in his Rule 56.1 statement of additional facts. “[C]onclusory assertions do

not constitute evidence” and cannot overcome summary judgment. Id. Third, Williams points to

the fact that his ADA accommodations requests were denied. Though denial of requested

accommodations could be an adverse action, see, e.g., Bilinsky v. Am. Airlines, Inc., No. 16 C

4253, 2018 WL 4181481, at *9 (N.D. Ill. Aug. 31, 2018), aff'd on other grounds, 928 F.3d 565

(7th Cir. 2019), Williams has not shown a causal link between his protected activities (making

accommodations requests and bringing discrimination charges) and the Board’s decision to deny

his requests—indeed, as discussed above, the Board made an effort to provide some reasonable

accommodations and denied Williams’s remaining requests because they were not reasonable as

a matter of law or would not have assisted Williams in performing the essential functions of his

job. Finally, Williams argues that Patricia Pagan’s actions while supervising him beginning in the

fall of 2016 and continuing through the 2018-2019 school year were overly harsh and punitive, in

retaliation for his June 2016 accommodations request. The June 2016 request and Pagan’s ensuing

actions postdate Williams’s 2015 EEOC/IDHR charges and thus are not properly part of this

action. And Williams cannot show that his claim stemming from the June 2016 accommodations

request or Pagan’s conduct is like or reasonably related to his earlier charges, because the 2016

claims do not “describe the same conduct and implicate the same individuals.” Moore, 641 F.3d

at 257.

Because Williams cannot show a causal link between the one viable adverse employment

action he identifies and his protected activities, his prima facie retaliation case fails and the Board

is entitled to summary judgment as a matter of law.

CONCLUSION

For these reasons, the Board is entitled to summary judgment on each of Williams’s claims

and the Board’s motion for summary judgment [Dkt. 72] is granted.

xy oO

A baenin ‘He ld Lf

. Kendall

ynived States District Judge

Date: September 24, 2019

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