Ford v. Becton, Dickenson and Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

AMY FORD,

Plaintiff,

v. Case No. 20–CV–01315–JPG

BECTON, DICKENSON AND COMPANY,

Defendant.

MEMORANDUM & ORDER

This is an employment discrimination case. Before the Court is Defendant Becton,

Dickenson and Company’s (“Becton’s”) Partial Motion to Dismiss. (ECF No. 17). Plaintiff Amy

Ford responded, (ECF No. 25); and Becton replied, (ECF No. 26); For the reasons below, the Court

GRANTS Becton’s Motion and DISMISSES Counts I and II of the Complaint WITHOUT

PREJUDICE.

I. PROCEDURAL & FACTUAL HISTORY

According to the Complaint, Ford began working as a sales consultant in 2006. (Compl.

at 3). St. Louis, Missouri was her territory; and she did her job well. (Id.).

In 2015, Becton merged or acquired the company that Ford was working for; and she

retained her position. (Id.).

That year, Ford informed Becton that she suffers from “an undermined autoimmune

disorder and/or immune deficiency” that substantially limits her ability to perform major life

activities. (Id.). She also informed Becton that her son, too, suffers from a serious medical

condition that limits his ability to perform major life activities. (Id.).

In October 2018, Becton reassigned Ford’s sales territory. (Id. at 4). Rather than nearby

St. Louis, Ford would instead have to drive about three hours to her largest customers. (Id. at 4).

Ford told her supervisor that her and her son’s medical conditions make long-distance travel

difficult, so she requested reassignment back to St. Louis. (Id.). Her supervisor refused and accused

her of being “negative” about the territory change—even though Becton has allowed other, non-

disabled employees to change territories so they could work closer to home. (Id.).

Later that month, Ford returned to her supervisor and again requested accommodation

because of her and her son’s medical conditions. (Id.). Her supervisor “stated that it may be time

for Ford to look for another job.” (Id.). He again refused to change her territory but said that she

could work fewer days during the week if she still hit her sales quota. (Id.). He also said that she

could miss meetings if she had to travel because another employee could cover for her. (Id. at 5).

Even so, Ford’s supervisor said that she would still have to apply for leave under the Family

Medical Leave Act (“FMLA”) if she had to miss a meeting. (Id.).

After this discussion, Ford complained to human resources by submitting “an official

accommodation request form.” (Id. at 5). The request was denied because Becton only offers

accommodations “for people with physical disabilities in wheelchairs.” (Id.). Ford then told human

resources that she was being harassed and treated “differently because of her and her son’s health

conditions.” (Id.). Nothing changed. (Id.).

In December 2018, Becton sent “Ford a ‘letter of concern’ that criticized and scrutinized

Ford’s performance in an unfair manner that was not directed at other employees.” (Id.). Again,

Ford complained to human resources that she was being discriminated against because of her and

her son’s health conditions; and it again fell on deaf ears. (Id.).

Over the next year, Ford had to seek intermittent leave under the FMLA at least twice. The

first time was in January 2019 because of her own health conditions, and the second was “[i]n

approximately Spring/Summer 2019” because of her son’s. (Id. at 6). A month after the first

request, however, Ford received “negative feedback in a coaching and Development Plan . . . .”

(Id.). And “[i]n or about Summer 2019,” Ford was denied an opening for a sales-consultant

position in St. Louis, which she interviewed for. (Id.).

Then, in October 2019, Becton “placed Ford on a performance improvement plan” that

“included one or more false claims or allegations.” (Id.). For example, the plan stated that Ford

failed to hit one of her quotes when she actually “far exceeded” it. (Id.). Indeed, she “was ranked

40 out of 104 Sales Consultants in the company . . . .” (Id.).

On December 5, 2019, Ford filed a Charge of Discrimination with the Missouri

Commission on Human Rights. (ECF No. 1-4). It recounted all the facts above. (Id.).

In February 2020, Becton “accused Ford of violating company policy by forwarding certain

email to herself,” even though “other Sales Consultants forwarded similar emails to themselves.”

(Compl. at 6). Ford offered to delete the emails, but Becton fired her instead. (Id.).

Finally, on April 6, 2020, Ford filed a Charge of Discrimination with the Illinois

Department of Human Rights. (ECF No. 1-5). It also recounted all the facts above, including

Ford’s termination. (Id.).

Now, Ford is suing Becton for disability discrimination here. Counts I and II of her

Complaint allege that Becton violated the Americans with Disabilities Act (“ADA”) and the

Illinois Human Rights Act (“IHRA”), respectively. (Compl. at 7–11). More specifically, Ford says

that Becton subjected her to both disparate treatment and a hostile work environment. (Id.).

Further, Count III alleges that Becton violated the FMLA by retaliating against her for requesting

intermittent leave. (Id. at 11–12).

Becton, in turn, moved to dismiss Counts I and II. It contends that Ford (1) failed to state

a claim for disparate treatment or hostile work environment, and (2) failed to timely exhaust her

administrative remedies.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes defendants to seek dismissal for failure

to state a claim. To survive a motion to dismiss, the factual allegations in the complaint must

plausibly suggest “a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). All well-pleaded allegations must be

accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. Twombly,

550 U.S. at 555.

III. LAW & ANALYSIS

The ADA provides “a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” See 42 U.S.C. § 12101(b)(1). It prohibits

qualifying employers from discriminating “against a qualified individual on the basis of disability

in regard to job application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and privileges of employment.”

Id. § 12112(a). Examples include “not making reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual with a disability,” id. § 12112(b)(5)(A);

“denying employment opportunities to . . . an otherwise qualified individual with a disability, if

such denial is based on the need of [the employer] to make reasonable accommodation,” id.

§ 12112(b)(5)(B); and “excluding or otherwise denying equal jobs or benefits to a qualified

individual because of the known disability of an individual with whom the qualified individual is

known to have a relationship or association,” id. § 12112(b)(4). Similarly, “[w]hen analyzing

claims of discrimination under the [IHRA], Illinois courts have looked to the standards applicable

to analogous federal claims.” Luckett v. Human Rights Comm’n, 569 N.E.2d 6, 14 (Ill. App. Ct.

1989); Teruggi v. CIT Grp./Cap. Fin., Inc., 708 F.3d 654, 659 (7th Cir. 2013) (analyzing

IHRA claim just as ADA claim).

Title 42, Section 2000e-5 of the U.S. Code is among the ADA’s enforcement provisions.

See 42 U.S.C. § 12117(a). It “ ‘specifies with precision’ the prerequisites that a plaintiff must

satisfy before filing suit.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002)

(quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)).

An individual must file a charge within the statutory time period and

serve notice upon the person against whom the charge is made. In a

State that has an entity with the authority to grant or seek relief with

respect to the alleged unlawful practice, an employee who initially

files a grievance with that agency must file the charge with the

EEOC within 300 days of the employment practice; in all other

States, the charge must be filed within 180 days. A claim is time

barred if it is not filed within these time limits.

Id. at 109. This limitations period, “while guaranteeing the protection of the civil rights laws to

those who promptly assert their rights, also protect[s] employers from the burden of defending

claims arising from employment decisions that are long past.” Del. State Coll. v. Ricks, 449 U.S.

250, 256–57 (1980) It “inevitably reflects a value judgment concerning the point at which the

interests in favor of protecting valid claims are outweighed by the interests in prohibiting the

prosecution of stale ones.” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 463–64 (1975).

Thus, because both Missouri and Illinois have agencies authorized to grant relief from unlawful

employment practices, see 29 C.F.R. § 1601.80, “[a] charge filed beyond the 300-day period is

untimely and barred,” Majors v. Gen. Elec. Co., 714 F.3d 527, 536 (7th Cir. 2013).

For a disparate-treatment claim, the limitations period begins when a discrete act of

discrimination occurs. See Morgan, 536 U.S. at 114. “ ‘Disparate treatment’ . . . is the most easily

understood type of discrimination. The employer simply treats some people less favorably than

others because of” a protected characteristic. See Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 365 n.15 (1977). “Discrete acts such as termination, failure to promote, denial of transfer, or

refusal to hire are easy to identify.” Morgan, 536 U.S. at 114. “Each incident of discrimination and

each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful

employment practice.’ ” Id. It follows that “the proper focus is upon the time of the discriminatory

acts, not upon the time at which the consequences of the acts became most painful.” Abramson v.

Univ. of Haw., 594 F.2d 202, 209 (1979). “Proof of discriminatory motive is critical, although it

can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly

disparate treatment was the most obvious evil Congress had in mind when it enacted” the

antidiscrimination laws. See Int’l Bhd. of Teamsters, 431 U.S. at 365 n.15.

For a hostile-work-environment claim, on the other hand, the limitations period “includes

every act composing the claim, whether those acts are independently actionable or not.” See Green

v. Brennan, 136 S. Ct. 1769 1778 (2016) (citing Morgan, 536 U.S. at 115–21).

Hostile environment claims are different in kind from discrete acts.

Their very nature involves repeated conduct. The “unlawful

employment practice” therefore cannot be said to occur on any

particular day. It occurs over a series of days or perhaps years and,

in direct contrast to discrete acts, a single act of harassment may not

be actionable on its own. Such claims are based on the cumulative

effect of individual acts.

Morgan, 536 U.S. at 115. Put differently, a hostile work environment is one that “is permeated

with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working environment . . . .”

Id. at 116 (cleaned up). Determining whether a hostile work environment exists requires examining

the totality of the circumstances, “including the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” Id. (cleaned up).

Because a hostile-work-environment claim involves “a series of separate acts that collectively

constitute one unlawful employment practice,” only a single “act contributing to the claim” must

occur within the limitations period. Id. at 117. “[F]or the purposes of determining liability,”

however, a court can consider “the entire time period of the hostile environment,” including acts

that occurred outside the limitations period. Id.

Ford points to Gates v. Board of Education of the City of Chicago, 916 F.3d 631 (7th Cir.

2019), to support her hostile-work-environment claim; but that case is inapt. In Gates, a supervisor

directed “racially toxic language” against an employee. See id. at 637. “Three incidents are key:

(1) the 2013 ‘joke’ in which Rivera called Gates the N-word; (2) the 2013 meeting in which Rivera

threatened to write up Gates’s ‘black ass’; and (2) the 2014 ‘you people’ comment in which Rivera

again addressed Gates using the N-word.” Id. at 637. The district court found that “this level of

harassment from a supervisor was not severe or pervasive enough to render an employee’s work

environment hostile.” Id. But the Seventh Circuit reversed because the district court undermined

the severity of the supervisor’s behavior: “In short, when the harassment involves such appalling

racist language in comments made directly to employees by the supervisors, we have not affirmed

summary judgment for employers.” Id. at 639. Ford latches on to language in Gates about how the

workplace need not be “hellish” for it to be actionable. See id. at 637. Even so, the allegations

Ford’s Complaint are not nearly “as severe and direct” as the discrimination in Gates. See id.

at 641. Ford does not allege that Becton ever made an unambiguous epithet about her disability—

while the supervisor’s behavior Gates fell “ ‘on the more severe end of the spectrum’ ” because

such explicitly racist and humiliating rhetoric tends to have a “ ‘a highly disturbing impact on the

listener.’ ” Id. at 640 (quoting Hrobowski v. Worthington Steel Co., 538 F.3d 473, 477 (7th Cir.

2004)).

Ford’s analogy with Huri v. Office of the Chief Judge of the Circuit Court of Cook County,

804 F.3d 826 (7th Cir. 2015), similarly fails. There, a Muslim plaintiff alleged that her employer

subjected her to “screaming, [Christian] prayer circles, social shunning, implicit criticism of non-

Christians,” denial of religious time off, exclusion from social gatherings, and arbitrary workplace

rules not imposed on other employees, among other things. See id. at 830, 833. The Seventh Circuit

found that these allegations were severe and persuasive enough to state a hostile-work-

environment claim. Id. at 833. But none of the allegations in Ford’s Complaint come close to the

level of abuse depicted in Gates or Huri. Indeed, neither her supervisor nor human resources said

anything outright disparaging. At worst, the allegations constitute offensive utterances. Nor does

Ford allege that the discrimination was so pervasive as to impact her work performance—she was

the 40th-best sales consultant in the company. Taken as a whole and accepted as true, the conduct

alleged in the Complaint was not so severe or pervasive as to alter the terms and conditions of

Ford’s employment. So to the extent that they allege hostile-work-environment claims, Counts I

and II are DISMISSED.

Next, the Court considers whether Ford’s claims, considered as discrete acts, were brought

within the limitations period. Ford filed charges of discrimination with the Missouri Commission

on Human Rights and the Illinois Human Rights Commission on December 5, 2019, and April 6,

2020, respectively. For the allegations in those charges to be timely, they had to have occurred

within 300 days of those dates—after February 8, 2019, or June 11, 2019. Fatally, the bulk of

Ford’s accusations came before then: Her reassignment and conversation with her supervisor

occurred in October 2018, as did her initial correspondence with human resources; and the letter

of concern and second correspondence with human resources occurred in December 2018. In brief,

these acts occurred outside the limitations period and are not actionable. So to the extent that they

allege disparate-treatment claims arising from conduct before February 8, 2019, Counts I and II

are DISMISSED.

IV. CONCLUSION

The Court GRANTS Defendant Beckton, Dickenson and Company’s Partial Motion to

Dismiss and DISMISSES Counts I and II of the Complaint WITHOUT PREJUDICE.

IT IS SO ORDERED.

Dated: Friday, April 30, 2021

S/J. Phil Gilbert

J. PHIL GILBERT

UNITED STATES DISTRICT JUDGE